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§ 12.0001. POWERS AND DUTIES OF COMMISSIONER OF HEALTH AND HUMAN SERVICES. The commissioner of health and human services has the powers and duties relating to the board and commissioner as provided by Section 531.0055, Government Code. To the extent a power or duty given to the board or commissioner by this title or another law conflicts with Section 531.0055, Government Code, Section 531.0055 controls.
Added by Acts 1999, 76th Leg., ch. 1460, § 2.18, eff. Sept. 1, 1999.
§ 12.001. GENERAL POWERS AND DUTIES. (a) The board has general supervision and control over all matters relating to the health of the citizens of this state.
(b) The board shall: (1) adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner and file a copy of those rules with the department; and
(2) examine, investigate, enter, and inspect any public place or public building as the board determines necessary for the discovery and suppression of disease and the enforcement of any health or sanitation law of this state.
(c) The board has all the powers, duties, and functions granted by law to: (1) the Texas Board of Health; (2) the state commissioner of health; (3) the Texas Department of Health; (4) the Texas Board of Health Resources; and (5) the Texas Department of Health Resources.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.002. BOARD INVESTIGATIONS. (a) A member of the board may administer oaths, summon witnesses, and compel the attendance of witnesses in any matter proper for board investigation, including the determination of nuisances and the investigation of:
(1) public water supplies; (2) sanitary conditions; (3) the existence of infection; or (4) any matter that requires the board to exercise its discretionary powers and that is within the general scope of its authority under this subchapter.
(b) Each district court shall aid the board in its investigations and in compelling compliance with this subchapter. If a witness summoned by the board is disobedient or disrespectful to the board's lawful authority, the district court of the county in which the witness is summoned to appear shall punish the witness in the manner provided for contempt of court.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.003. LEGAL REPRESENTATION. (a) A suit brought by the board must be brought in the name of the state.
(b) The attorney general shall assign a special assistant to attend to the board's legal matters, and on the board's request shall furnish necessary assistance to the board relating to its legal requirements.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.004. DEVELOPMENT OF PROPOSED RULES. (a) This section applies to the process by which the department develops proposed rules for the board's consideration before the proposed rules are published in the Texas Register and before the board, commissioner, or department complies with the rulemaking requirements of the administrative procedure law, Chapter 2001, Government Code. This section does not affect the duty of the board, commissioner, or department to comply with the rulemaking requirements of that law.
(b) The board shall require the department to establish a checklist of methods that, to the extent appropriate, the department will follow to obtain early in the rule development process the advice and opinions of the public and of persons who will be most affected by a proposed rule. The checklist must include methods for identifying persons who will be most affected and for soliciting at a minimum the advice and opinions of affected local health departments, of recipients and providers of affected services, and of advocates for affected recipients or providers.
(c) The checklist may include negotiated rulemaking, informal conferences, advisory committees, and any other appropriate method.
(d) A rule adopted by the board may not be challenged on the grounds that the board, commissioner, or department did not comply with this section. If the department was unable to solicit a significant amount of advice and opinion from the public or from affected persons early in the rule development process, the department shall state in writing to the board the reasons why the department was unable to do so.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.08, eff. Sept. 1, 1999.
§ 12.005. MEDICAL DIRECTOR: MEDICAID MANAGED CARE AND CHIPS PROGRAMS. (a) In addition to any other medical director employed by the department, the board shall require the department to employ a separate medical director whose duties consist of acting as the medical director for the children's health insurance program created under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.) and also as the medical director for the Medicaid managed care program, to the extent that those programs are administered by the department.
(b) The medical director shall be primarily responsible for implementing and maintaining policies and systems for the programs that relate to clinical and professional medical issues, including clinical oversight.
(c) The medical director must be a physician licensed to practice medicine in this state.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.08, eff. Sept. 1, 1999.
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT
§ 12.011. APPROPRIATIONS, GRANTS, AND DONATIONS. (a) To carry out its duties and functions, the department may apply for, contract for, receive, and spend an appropriation or grant from the state, the federal government, or any other public source, subject to any limitation or condition prescribed by legislative appropriation.
(b) The department may accept donations and contributions to be spent in the interest of public health and the enforcement of public health laws.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.0111. LICENSING FEES. (a) This section applies in relation to each licensing program administered by the department or administered by a regulatory board or other agency that is under the jurisdiction of the department or administratively attached to the department. In this section and Section 12.0112, "license" includes a permit, certificate, or registration.
(b) Notwithstanding other law, the department shall charge a fee for issuing or renewing a license that is in an amount designed to allow the department to recover from its license holders all of the department's direct and indirect costs in administering and enforcing the applicable licensing program.
(c) Notwithstanding other law, each regulatory board or other agency that is under the jurisdiction of the department or administratively attached to the department and that issues licenses shall charge a fee for issuing or renewing a license that is in an amount designed to allow the department and the regulatory board or agency to recover from the license holders all of the direct and indirect costs to the department and to the regulatory board or agency in administering and enforcing the applicable licensing program.
(d) This section does not apply to a person regulated under Chapter 773.
Added by Acts 2003, 78th Leg., ch. 198, § 2.42(a), eff. Sept. 1, 2003.
§ 12.0112. TERM OF LICENSE. (a) Notwithstanding other law and except as provided by Subsection (b), the term of each license issued by the department, or by a regulatory board or other agency that is under the jurisdiction of the department or administratively attached to the department, is two years. The department, regulatory board, or agency may provide for staggering the issuance and renewal of licenses.
(b) This section does not apply to a license issued for a youth camp under Chapter 141.
Added by Acts 2003, 78th Leg., ch. 198, § 2.42(a), eff. Sept. 1, 2003.
§ 12.0115. INTEGRATION OF HEALTH CARE DELIVERY PROGRAMS. (a) In this section, "health care delivery programs" includes the department's primary health care services program, its program to improve maternal and infant health, its services for chronically ill and disabled children, any aspects of health care delivery under the state Medicaid program assigned to the department by law or by the Health and Human Services Commission, and the part of any other department program concerned with the department's responsibility for the delivery of health care services.
(b) The department shall integrate the functions of its different health care delivery programs to the maximum extent possible, including integrating the functions of health care delivery programs that are part of the state Medicaid program with functions of health care delivery programs that are not part of the state Medicaid program.
(c) At a minimum, the department's integration of the functions of its different health care delivery programs must include the integration within and across the programs of:
(1) the development of health care policy; (2) the delivery of health care services, to the extent appropriate for the recipients of the health care services; and
(3) to the extent possible, the administration of contracts with providers of health care services, particularly providers who concurrently provide health care services under more than one contract or program with the department.
(d) One of the primary goals of the department in integrating the delivery of health care services for the benefit of recipients shall be providing for continuity of care for individuals and families, accomplished to the extent possible by providing an individual or family with a medical home that serves as the primary initial health care provider.
(e) One of the primary goals of the department in integrating the administration of its contracts with providers of health care services shall be designing an integrated contract administration system that reduces the administrative and paperwork burden on providers while still providing the department with the information it needs to effectively administer the contracts. The department's integration of contract administration must include:
(1) the integration of the initial procurement process within and across programs, at least in part by efficiently combining requests for bids or proposals within or across programs to the extent it reduces the administrative burden for providers;
(2) the establishment of uniform contract terms, including: (A) contract terms that require information from providers, or that prescribe performance standards for providers, that could be made uniform within or across programs while remaining effective as contract terms;
(B) the establishment of a procedure under which a contractor or a person responding to a request for bids or proposals may supply the department with requested information whenever possible by referencing current and correct information previously supplied to and on file with the department; and
(C) contract terms regarding incentives for contractors to meet or exceed contract requirements;
(3) the integration of contract monitoring, particularly with regard to monitoring providers that deliver health services for the department under more than one contract or under more than one department program; and
(4) the integration of reimbursement methods: (A) particularly for a provider that delivers health services for the department under more than one contract or under more than one department program; and
(B) including the application across programs of the most effective and efficient reimbursement technologies or methods that are available to the department under any of its programs.
(f) The department shall examine the extent to which the department could integrate all or part of its health care delivery programs into a single delivery system.
(g) If a federal requirement that the federal government may waive restricts the department's integration efforts under this section, the department may seek a waiver of the requirement from the federal government. If the waiver affects a program for which another state agency is designated the single state agency for federal purposes, the department shall request the single state agency to seek the waiver.
(h) The department may not integrate health care delivery programs under this section in a way that affects the single state agency status of another state agency for federal purposes without obtaining the approval of the Health and Human Services Commission and any necessary federal approval.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.09, eff. Sept. 1, 1999.
§ 12.012. AWARDING CONTRACTS OR GRANTS AND SELECTING SERVICE PROVIDERS. (a) In awarding contracts or grants for services, or in selecting service providers under any program administered by the department, the department shall give preference to providers who can deliver appropriate services of similar quality in the most cost-effective manner.
(b) In awarding the contracts or grants or selecting the providers, the department may not discriminate among licensed health care providers who can provide the services under the authority of their licenses.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.0121. CONTRACTING FOR PROFESSIONAL SERVICES. (a) In this section, "professional services" means those services performed by an individual who is licensed, certified, registered, or otherwise authorized by the state and who acts within the scope of the individual's license, certification, registration, or other authorization in the practice of a health or allied health profession.
(b) The board by rule shall adopt a list of categories of licensed, certified, registered, or otherwise authorized providers to whom the department may award a grant for professional services under this section or with whom the department may contract or otherwise engage to perform professional services under this section.
(c) The department may award a grant, enter into a contract, or otherwise engage an individual or a group or association of individuals to perform professional services selected on the basis of competitive proposals submitted for the grant, contract, or services to be performed. The department may also make the selection on the basis of:
(1) demonstrated competence and qualifications for the type of professional services to be performed; and
(2) whether the fees for the professional services to be performed are fair, reasonable, and consistent with and not higher than the usual and customary fees for the services to be performed and do not exceed any maximum provided by state law.
(d) The department may award a grant, enter into a contract, or otherwise engage an individual or a group or association of individuals to perform professional services without complying with Subsection (c) if the commissioner by order ratified by the board at its next regular meeting determines that an emergency exists that necessitates the use of different procedures. A grant, contract, or engagement under this subsection is effective only for the period specified by the commissioner's order.
Added by Acts 1991, 72nd Leg., ch. 284, § 1, eff. Sept. 1, 1991.
§ 12.0122. SALE OF LABORATORY SERVICES. (a) The department may enter into a contract for the sale and provision of laboratory services in accordance with this section.
(b) The department may enter into a contract with: (1) a federal, state, or local governmental entity; or (2) a freestanding public health clinic owned or controlled by a nonprofit organization.
(c) For purposes of Subsection (b)(1), a contract with a federal governmental entity does not include a contract relating to Medicare managed care services.
(d) The department by rule may establish charges for the sale of laboratory services.
(e) The department may enter into a contract with a party in or outside of this state.
(f) In this section, "laboratory services" means the activities performed by the laboratory established by the department. The term includes the provision of supplies and test materials and the performance of scientific procedures to analyze or assess specimens from any source, but does not include tissue and cytology specimens, except for pap smears for recipients under federally funded programs or genetic testing.
Added by Acts 1997, 75th Leg., ch. 647, § 1, eff. June 11, 1997. Renumbered from § 12.020 by Acts 1999, 76th Leg., ch. 62, § 19.01(62), eff. Sept. 1, 1999.
§ 12.0123. EXTERNAL AUDITS OF CERTAIN MEDICAID CONTRACTORS BASED ON RISK.
Text of section as added by Acts 1999, 76th Leg., ch. 1411, § 1.10
(a) In this section, "Medicaid contractor" means an entity that: (1) is not a health and human services agency as defined by Section 531.001, Government Code; and
(2) under a contract with or otherwise on behalf of the department, performs one or more administrative services in relation to the department's operation of a part of the state Medicaid program, such as claims processing, utilization review, client enrollment, provider enrollment, quality monitoring, or payment of claims.
(b) The department shall contract with an independent auditor to perform independent external financial and performance audits of any Medicaid contractor used by the department in the department's operation of a part of the state Medicaid program. The department regularly shall review its Medicaid contracts and ensure that:
(1) the frequency and extent of audits of a Medicaid contractor under this section are based on the amount of risk to the state involved in the administrative services being performed by the contractor;
(2) audit procedures related to financial audits and performance audits are used consistently in audits under this section; and
(3) to the extent possible, audits under this section are completed in a timely manner.
(c) If another state agency succeeds to the department's operation of a part of the state Medicaid program for which the department used a Medicaid contractor, the successor agency shall comply with this section with regard to the Medicaid contractor, including the requirement to contract with an independent auditor to perform the external financial and performance audits required by this section.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.10, eff. Sept. 1, 1999.
For text of section as added by Acts 1999, 76th Leg., ch. 1447, § 1, eff. June 19, 1999, and by Acts 1999, 76th Leg., ch. 1460, § 9.01, eff. Sept. 1, 1999, see § 12.0123, post.
§ 12.0123. EXTERNAL AUDITS OF CERTAIN MEDICAID CONTRACTORS.
Text of section as added by Acts 1999, 76th Leg., ch. 1447, § 1 and by Acts 1999, 76th Leg., ch. 1460, § 9.01
(a) In this section, "Medicaid contractor" means an entity that: (1) is not a health and human services agency as defined by Section 531.001, Government Code; and
(2) under contract with or otherwise on behalf of the department, performs one or more administrative services in relation to the department's operation of a part of the state Medicaid program, such as claims processing, utilization review, client enrollment, provider enrollment, quality monitoring, or payment of claims.
(b) The department shall contract with an independent auditor to perform annual independent external financial and performance audits of any Medicaid contractor used by the department in the department's operation of a part of the state Medicaid program.
(c) The department shall ensure that audit procedures related to financial audits and performance audits are used consistently in audits under this section.
(d) An audit required by this section must be completed before the end of the fiscal year immediately following the fiscal year for which the audit is performed.
Added by Acts 1999, 76th Leg., ch. 1447, § 1, eff. June 19, 1999; Acts 1999, 76th Leg., ch. 1460, § 9.01, eff. Sept. 1, 1999.
For text of section as added by Acts 1999, 76th Leg., ch. 1411, § 1.10, eff. Sept. 1, 1999, see § 12.0123, ante.
§ 12.0124. ELECTRONIC TRANSACTIONS; STATE MEDICAID PROGRAM. The department or the department's successor in function in relation to the department's operation of a part of the state Medicaid program shall implement policies that encourage the use of electronic transactions. The policies shall require payment to Medicaid service providers by electronic funds transfer, including electronic remittance and status reports. The policies shall also include the establishment of incentives to submit claims electronically and of disincentives to submit claims on paper that are reasonably based on the higher administrative costs to process claims submitted on paper.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.10, eff. Sept. 1, 1999.
§ 12.0125. DRUG REBATES. (a) The department shall develop a voluntary drug manufacturer rebate program for drugs purchased by or on behalf of a client of the Kidney Health Care Program or the Chronically Ill and Disabled Children's Services Program for which rebates are not available under the Medicaid drug manufacturer rebate program.
(b) The department shall consult with drug manufacturers to develop rebate amounts for the new voluntary rebate program. The average percentage savings from rebates in the new program may not be less than the average percentage savings from rebates in the Medicaid drug manufacturer rebate program.
(c) Amounts received by the department under the drug rebate program established under this section may be appropriated only for the Kidney Health Care Program or the Chronically Ill and Disabled Children's Services Program.
Added by Acts 1999, 76th Leg., ch. 669, § 2, eff. June 18, 1999.
§ 12.0127. IMMIGRATION VISA WAIVERS FOR PHYSICIANS. (a) The department, in accordance with 8 U.S.C. Section 1182(e), as amended, under exceptions provided by 8 U.S.C. Section 1184(l), as amended, may request waiver of the foreign country residence requirement for a qualified alien physician who agrees to practice medicine in a medically underserved area or health professional shortage area, as designated by the United States Department of Health and Human Services, that has a current shortage of physicians.
(b) The department may charge a fee to cover the costs incurred by the department in administering the visa waiver program established under this section.
Added by Acts 2003, 78th Leg., ch. 143, § 1, eff. Sept. 1, 2003.
§ 12.0128. HEALTH ALERT NETWORK. The department shall include the Texas Association of Local Health Officials, the Texas Association of Community Health Centers, and the Texas Organization of Rural and Community Hospitals in the department's Texas Health Alert Network to the extent federal funds for bioterrorism preparedness are available for that purpose.
Added by Acts 2005, 79th Leg., ch. 1337, § 17, eff. June 18, 2005.
§ 12.013. DRIVING AND TRAFFIC POLICIES. (a) The department shall continuously study and investigate the medical aspects of:
(1) the licensing of drivers; (2) the enforcement of traffic safety laws, including differentiation between drivers who are ill or intoxicated; and
(3) accident investigation, including examination for alcohol or drugs in the bodies of persons killed in traffic accidents.
(b) Based on the studies and investigations, the department periodically shall recommend to the Department of Public Safety appropriate policies, standards, and procedures relating to those medical aspects.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.014. REGISTRY. (a) The department may establish a registry or system of registries for providers of health-related services who are not otherwise licensed, registered, or certified by any state agency, board, or commission.
(b) The board by rule may adopt reasonable registration fees to cover the costs of establishing and maintaining a registry and may adopt other rules as necessary to administer this section.
(c) A person seeking to register with the department must submit a request for registration on a form prescribed by the department.
Added by Acts 1991, 72nd Leg., ch. 14, § 5, eff. Sept. 1, 1991.
§ 12.0145. INFORMATION ABOUT ENFORCEMENT ACTIONS. (a) The department shall publish and provide information in accordance with this section regarding each final enforcement action taken by the department, commissioner, or board against a person or facility regulated by the department in which any kind of sanction is imposed, including:
(1) the imposition of a reprimand, a period of probation, a monetary penalty, or a condition on a person's continued practice or a facility's continued operation; and
(2) the refusal to renew or the suspension, probation, or revocation of a license or other form of permission to engage in an activity.
(b) Except to the extent that the information is specifically made confidential under other law, the department shall publish and provide the name, including any trade name, of the person or facility against which an enforcement action was taken, the violation that the person or facility was found to have committed, and the sanction imposed. The department shall publish and provide the information in a way that does not serve to identify a complainant.
(c) The department shall publish the information on its generally accessible Internet site. The department also shall provide the information by establishing a system under which members of the public can call toll-free numbers to obtain the information efficiently and with a minimum of delay. The department shall appropriately publicize the toll-free numbers.
(d) The department shall publish and provide the information promptly after the sanction has been imposed or, when applicable, promptly after the period during which the sanction is imposed has begun. The department by rule shall establish the length of time during which the required information will be published and provided under this section based on the department's determination regarding the types of services provided by regulated entities and the length of time for which information about a category of enforcement actions is useful to a member of the public.
(e) The department shall publish and provide the information using clear language that can be readily understood by a person with a high school education.
(f) If another law specifically requires that particular information subject to this section shall be published in another manner, the department shall comply with this section and with the other law.
(g) A determination that the department is not required to publish and provide information under this section does not affect a determination regarding whether the information is subject to required disclosure under the open records law, Chapter 552, Government Code. The department's determination regarding the length of the period during which information should continue to be published and provided under this section does not affect a determination regarding the period for which the information must be preserved under Chapter 441, Government Code, or under another law.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.11, eff. Sept. 1, 1999.
§ 12.0146. TRENDS IN ENFORCEMENT. The department shall publish annually an analysis of its enforcement actions taken under state law with regard to each profession, industry, or type of facility regulated by the department. The analysis for each regulatory area must show at a minimum the year-to-year trends in the number and types of enforcement actions taken by the department in its regulation of the profession, industry, or type of facility.
Added by Acts 1999, 76th Leg., ch. 1411, § 1.11, eff. Sept. 1, 1999.
§ 12.015. INFORMATION ON COMMUNITY SERVICES. (a) If the department determines that a person is not eligible for a level of care in a nursing home, the department shall inform the person that community services might be available under the community care for the aged and disabled program administered by the Texas Department of Human Services.
(b) The department shall provide to the person a list of services available under the program and a telephone number to call for more information on the services.
Added by Acts 1991, 72nd Leg., ch. 14, § 6, eff. Sept. 1, 1991.
§ 12.016. PUBLIC HEARING PROCEDURES. (a) Any statements, correspondence, or other form of oral or written communication made by a member of the legislature to a department official or employee during a public hearing conducted by the department shall become part of the record of the hearing, regardless of whether the member is a party to the hearing.
(b) When a public hearing conducted by the department is required by law to be conducted at a certain location, the department shall determine the place within that location at which the hearing will be conducted. In making that determination, the department shall consider the cost of available facilities and the adequacy of a facility to accommodate the type of hearing and anticipated attendance.
(c) The department shall conduct at least one session of a public hearing after normal business hours on request by a party to the hearing or any person who desires to attend the hearing.
(d) An applicant for a license, permit, registration, or similar form of permission required by law to be obtained from the department may not amend the application after the 31st day before the date on which a public hearing on the application is scheduled to begin. If an amendment of an application would be necessary within that period, the applicant shall resubmit the application to the department and must again comply with notice requirements and any other requirements of law or board rule as though the application were originally submitted to the department on that date.
(e) If an application for a license, permit, registration, or similar form of permission required by law is pending before the department at the time when changes take effect concerning notice requirements imposed by law for that type of application, the applicant must comply with the new notice requirements.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 9.01, eff. Sept. 1, 1991.
§ 12.017. MANAGED CARE ORGANIZATIONS: MEDICAID PROGRAM. (a) Except as provided by Section 533.047, the department shall develop for managed care organizations that serve Medicaid clients performance, operation, quality of care, marketing, and financial standards and standards relating to children's access to good quality health care services. In developing the standards, the department shall include measures to monitor and assess the performance of managed care organizations relating to the health status and outcome of care for Medicaid clients.
(b) In establishing standards under this section, the department shall ensure that:
(1) to the extent possible, each Medicaid client can receive good quality health care services in the client's local community;
(2) plans serving children have adequate capacity to provide pediatric care; and
(3) plans provide timely access and appropriate referrals for specialty care.
Added by Acts 1995, 74th Leg., ch. 574, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, § 31.01(59), eff. Sept. 1, 1997.
§ 12.018. UNANNOUNCED INSPECTIONS. The department may make any inspection of a facility or program under the department's jurisdiction without announcing the inspection.
Added by Acts 1995, 74th Leg., ch. 531, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.017 by Acts 1997, 75th Leg., ch. 165, § 31.01(50), eff. Sept. 1, 1997.
§ 12.019. GENETIC COUNSELING FEES. (a) The department may charge for providing genetic counseling services. The fee may not exceed the actual cost of providing the services.
(b) The department shall use the fees for providing genetic counseling services.
Added by Acts 1995, 74th Leg., ch. 76, § 8.116, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.017 by Acts 1997, 75th Leg., ch. 165, § 31.01(51), eff. Sept. 1, 1997.
§ 12.020. PROTECTION AND USE OF INTELLECTUAL PROPERTY. (a) The department may:
(1) apply for, register, secure, hold, and protect under the laws of the United States, any state, or any nation:
(A) a patent for an invention or discovery of, or improvement to, any process, machine, manufacture, or composition of matter;
(B) a copyright for an original work of authorship fixed in any tangible medium of expression now known or later developed that can be perceived, reproduced, or otherwise communicated;
(C) a trademark, service mark, collective mark, or certification mark for a word, name, symbol, device, or slogan, or any combination of those items, that has been adopted and used by the department to identify goods or services and distinguish those goods or services from other goods or services; or
(D) other evidence of protection or exclusivity issued in or for intellectual property;
(2) enter into a contract with an individual or company for the sale, lease, marketing, or other distribution of intellectual property of the department;
(3) obtain under a contract entered into under Subdivision (2) a royalty, license right, or other appropriate means of securing appropriate compensation for the development or purchase of intellectual property of the department; and
(4) waive or reduce the amount of a fee, royalty, or other thing of monetary or nonmonetary value to be assessed by the department if the department determines that the waiver will:
(A) further the goals and missions of the department; and (B) result in a net benefit to the state. (b) Intellectual property for which the department has applied for or received a patent, copyright, trademark, or other evidence of protection or exclusivity is excepted from required disclosure under Chapter 552, Government Code.
(c) Money paid to the department under this section shall be deposited to the credit of the general revenue fund except as otherwise provided in Section 2054.115, Government Code.
(d) It is not a violation of Chapter 572, Government Code, or another law of this state for an employee of the department who conceives, creates, discovers, invents, or develops intellectual property to own or to be awarded any amount of equity interest or participation in the research, development, licensing, or exploitation of that intellectual property with the approval of the commissioner.
(e) The commissioner shall institute intellectual property policies for the department that establish minimum standards for:
(1) the public disclosure or availability of products, technology, and scientific information, including inventions, discoveries, trade secrets, and computer software;
(2) review by the department of products, technology, and scientific information, including consideration of ownership and appropriate legal protection;
(3) the licensing of products, technology, and scientific information; (4) the identification of ownership and licensing responsibilities for each class of intellectual property; and
(5) royalty participation by inventors and the department.
Added by Acts 1997, 75th Leg., ch. 143, § 1, eff. May 19, 1997.
SUBCHAPTER C. POWERS AND DUTIES OF COMMISSIONER
§ 12.021. ADMINISTRATION AND ENFORCEMENT DUTIES. The commissioner shall administer and enforce the health laws of this state under the board's supervision.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER D. FEES FOR PUBLIC HEALTH SERVICES
§ 12.031. DEFINITION. In this subchapter, "public health services" means:
(1) personal health promotion, maintenance, and treatment services; (2) infectious disease control and prevention services; (3) environmental and consumer health protection services; (4) laboratory services; (5) health facility architectural plan review; (6) public health planning, information, and statistical services; (7) public health education and information services; and (8) administration services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.032. FEES FOR PUBLIC HEALTH SERVICES. (a) The board by rule may charge fees to a person who receives public health services from the department.
(b) The board by rule may require department contractors to charge fees for public health services provided by department contractors participating in the department's programs. A department contractor shall retain a fee collected under this subsection and shall use the fee in accordance with the contract provisions.
(c) The amount of a fee charged for a public health service may not exceed the cost to the department of providing the service.
(d) The board may establish a fee schedule. In establishing the schedule, the board shall consider a person's ability to pay the entire amount of a fee.
(e) The board may not deny public health services to a person because of the person's inability to pay for the services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.033. DISTRIBUTION AND ADMINISTRATION OF CERTAIN VACCINES AND SERA. (a) Except as otherwise provided by this section, the board by rule shall charge fees for the distribution and administration of vaccines and sera provided under:
(1) Section 38.001, Education Code; (2) Section 42.043, Human Resources Code; (3) Chapter 826 (Rabies Control Act of 1981); (4) Chapter 81 (Communicable Disease Prevention and Control Act); and (5) Section 161.005. (b) Except as otherwise provided by this section, the board by rule may require a department contractor to charge fees for public health services provided by a contractor participating in a department program under the laws specified by Subsection (a).
(c) Provided the board finds that the monetary savings of this subsection are greater than any costs associated with administering it, the board by rule shall establish a fee schedule for fees under this section. In establishing the fee schedule, the board shall consider a person's financial ability to pay all or part of the fee, including the availability of health insurance coverage. In the event the fee schedule conflicts with any federal law or regulation, the board shall seek a waiver from the applicable federal law or regulation to permit the fee schedule. In the event the waiver is denied, the fee schedule shall not go into effect.
(d) The commissioner may waive the fee requirement for any type of vaccine or serum if the commissioner determines that:
(1) a public health emergency exists; and (2) the vaccine or serum is needed to meet the emergency. (e) The department may not deny an immunization to an individual required to be immunized under a law specified by Subsection (a) because of the individual's inability to pay for the immunization. The department shall provide the immunization at a reduced charge or no charge according to the financial ability of the individual or a person with a legal obligation to support the individual to pay for the immunization. The department shall give priority to those persons least able to pay for immunization.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 43, § 1, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 165, § 6.33, eff. Sept. 1, 1997.
§ 12.034. COLLECTION PROCEDURES. (a) The board shall establish procedures for the collection of fees for public health services. The procedures shall be used by the department and by those department contractors required by the board to charge fees.
(b) The fees may be collected either before the performance of the services or by billing after the services are performed.
(c) The department shall make a reasonable effort to collect fees billed after services are performed. However, the board by rule may waive the collection procedures if the administrative costs exceed the fees to be collected.
(d) If the board elects to require cash payments by program participants, the money received shall be deposited locally at the end of each day and retained by the department for not more than seven days. At the end of that time, the money shall be deposited in the state treasury.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.035. PUBLIC HEALTH SERVICES FEE FUND. (a) The department shall deposit all money collected for fees and charges collected under Sections 12.0122(d) and 12.032(a) in the state treasury to the credit of the Texas Department of Health public health services fee fund.
(b) The department shall maintain proper accounting records to allocate the fund among the state and federal programs generating the fees and administrative costs incurred in collecting the fees.
(c) The public health services fee fund is exempt from Section 403.095(b), Government Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 647, § 2, eff. June 11, 1997; Acts 1999, 76th Leg., ch. 62, § 19.02(11), eff. Sept. 1, 1999.
§ 12.036. SUBROGATION. (a) In furnishing public health services to a person, the department is subrogated to the person's right of recovery from:
(1) personal insurance; (2) another person, for a personal injury caused by the other person's negligence or wrongdoing; or
(3) any other source. (b) The department's right of subrogation is limited to the cost of the services provided.
(c) The board or the board's designee may waive the department's right of subrogation in whole or in part if the board or the designee determines that:
(1) enforcement of the right would tend to defeat the purpose of the department's program; or
(2) the administrative expense of the enforcement would be greater than the expected recovery.
(d) The board may adopt rules for the enforcement of the department's right of subrogation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.037. MODIFICATION, SUSPENSION, OR TERMINATION OF SERVICES. (a) The department may modify, suspend, or terminate public health services to a person for nonpayment of billed services after notice to the affected person and an opportunity for a fair hearing.
(b) The board by rule shall prescribe the criteria for department action under this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.038. RULES. The board may adopt rules necessary to implement this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.039. CONSTRUCTION OF OTHER LAWS. (a) This subchapter does not repeal or modify a statute in effect on August 29, 1983, that fixes the amount, directs the disposition, prohibits the collection, or prescribes the basis for computing any fee or charge.
(b) This section does not restrict the determination or recomputing of a fee or charge in accordance with the prescribed basis for computing the fee or charge.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER E. GRANTS OR CONTRACTS FOR PURCHASES OF PUBLIC HEALTH SERVICES, EQUIPMENT, OR SUPPLIES
§ 12.051. PROVISION OF FUNDS. The department may provide funds by grant or contract to a qualified person for the purchase of services, equipment, or supplies to be used to promote and maintain the public health.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 12.052. REQUIREMENTS FOR EXPENDITURE OF CERTAIN FUNDS. (a) The expenditure of funds received by local units of government from the department is governed by Chapter 783, Government Code, and the rules adopted under that law, except as provided by Section 12.055.
(b) The expenditure of funds received by other state agencies from the department is governed by Subtitle D, Title 10, Government Code, and the rules adopted under that law, except as provided by Section 12.055.
(c) The expenditure of funds received by any other qualified person from the department is governed by the grant or contract between the person and the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 17.15, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1045, § 3, eff. Sept. 1, 1997.
§ 12.053. INVENTORY REQUIREMENTS. All equipment and supplies which are purchased through a program, contract, or grant with the department by or for qualified entities, including but not limited to individuals, corporations, local units of government and other state agencies and that are used to promote and maintain public health are exempt from the statewide personal property accounting system administered by the comptroller of public accounts described in Subchapter L, Chapter 403, Government Code. The qualified entities shall maintain complete equipment and supply records. The department may request the return of any usable equipment or supplies purchased with funds provided by the department upon the termination of the program, contract, or grant.
Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 8, § 5.05, eff. Sept. 1, 1991.
§ 12.054. DISPOSITION OF CERTAIN DEPARTMENT PROPERTY. (a) This section applies only to property that is surplus or salvage property under Chapter 2175, Government Code, and that is:
(1) exempt under Section 12.053 from the statewide personal property accounting system; or
(2) lawfully in the possession of an emergency medical services provider or governmental entity as those terms are defined by Section 773.003.
(b) The department may negotiate directly with an emergency medical services provider or governmental entity to transfer title to property covered by this section for which the department determines that it holds title. The department and the provider or governmental entity may mutually agree upon the value of the property and shall take any action incident to the transaction that is required by federal law.
(c) The department shall initiate necessary procedures under Chapter 2175, Government Code, to dispose of surplus or salvage property for which the department does not transfer title under this section.
Added by Acts 1993, 73rd Leg., ch. 164, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 165, § 17.19(10), eff. Sept. 1, 1997.
§ 12.055. CERTAIN PROCUREMENTS MADE WITH DEPARTMENT FUNDS. (a) A state agency or local unit of government that expends funds received from the department for the acquisition of goods and services may satisfy the requirements of Section 12.052 or of another state law requiring procurements by competitive bidding or competitive sealed proposals by procuring goods or services with those funds in accordance with Section 12.056 or in accordance with:
(1) Section 2155.144, Government Code, if the entity is a state agency subject to that law;
(2) Section 32.043 or 32.044, Human Resources Code, if the entity is a public hospital subject to those laws; or
(3) this section, if the entity is not covered by Subdivision (1) or (2). (b) A state agency or local unit of government under Subsection (a)(3) shall acquire goods or services by any procurement method approved by the Health and Human Services Commission that provides the best value to the state agency or local unit of government. The state agency or local unit of government shall document that the state agency or local unit of government considered all relevant factors under Subsection (c) in making the acquisition.
(c) Subject to Subsection (d), the state agency or local unit of government may consider all relevant factors in determining the best value, including:
(1) any installation costs; (2) the delivery terms; (3) the quality and reliability of the vendor's goods or services; (4) the extent to which the goods or services meet the state agency's or local unit of government's needs;
(5) indicators of probable vendor performance under the contract such as past vendor performance, the vendor's financial resources and ability to perform, the vendor's experience and responsibility, and the vendor's ability to provide reliable maintenance agreements;
(6) the impact on the ability of the state agency or local unit of government to comply with laws and rules relating to historically underutilized businesses or relating to the procurement of goods and services from persons with disabilities;
(7) the total long-term cost to the state agency or local unit of government of acquiring the vendor's goods or services;
(8) the cost of any employee training associated with the acquisition; (9) the effect of an acquisition on the state agency's or local unit of government's productivity;
(10) the acquisition price; and (11) any other factor relevant to determining the best value for the state agency or local unit of government in the context of a particular acquisition.
(d) If a state agency to which this section applies acquires goods or services with a value that exceeds $100,000, the state agency shall consult with and receive approval from the Health and Human Services Commission before considering factors other than price and meeting specifications.
(e) The state auditor or the department may audit the state agency's or local unit of government's acquisitions of goods and services under this section.
(f) The state agency or local unit of government may adopt rules and procedures for the acquisition of goods and services under this section.
Added by Acts 1997, 75th Leg., ch. 1045, § 4, eff. Sept. 1, 1997.
§ 12.056. PARTICIPATION IN DEPARTMENT PURCHASING CONTRACTS OR GROUP PURCHASING PROGRAM. The department may allow a state agency, local unit of government, or private entity that expends funds received by the department to purchase goods or services using those funds by participating in:
(1) a contract the department has made to purchase goods or services; or (2) a group purchasing program established or designated by the department that offers discounts to providers of health services.
Added by Acts 1997, 75th Leg., ch. 1045, § 4, eff. Sept. 1, 1997.
SUBCHAPTER F. OFFICE OF TEXAS-MEXICO HEALTH AND ENVIRONMENTAL ISSUES
§ 12.071. OFFICE OF TEXAS-MEXICO HEALTH AND ENVIRONMENTAL ISSUES. The department shall establish and maintain an office in the department to coordinate and promote health and environmental issues between this state and Mexico.
Added by Acts 1991, 72nd Leg., ch. 14, § 7, eff. Sept. 1, 1991.
§ 12.072. BINATIONAL ALCOHOL AND SUBSTANCE ABUSE TASK FORCE.
Text of section effective until January 1, 2009
(a) The binational alcohol and substance abuse task force is created to study:
(1) the effect of substance abuse on residents living near the border, with emphasis on residents who are at least 14 years of age but younger than 26 years of age;
(2) hereditary factors that may contribute to a predisposition to alcohol dependency;
(3) the contributing factors of binge drinking by both minors and persons of legal drinking age and the effects on health and the community of binge drinking; and
(4) the effect on the community of drug traffickers using young residents living near the border to transport illegal drugs into the United States.
(b) The task force consists of: (1) five members of the house of representatives each of whom represents a district wholly or partly located 25 miles or less from the international border, appointed by the speaker of the house of representatives;
(2) five members of the senate each of whom represents a district wholly or partly located 25 miles or less from the international border, appointed by the lieutenant governor;
(3) three district attorneys or their representatives from different locations along the international border;
(4) the commissioner of the Department of State Health Services or a representative of the commissioner designated by the commissioner;
(5) the public safety director of the Department of Public Safety or a representative of the public safety director designated by the public safety director;
(6) three representatives of the public from different locations along the international border who have significant experience working in substance abuse and intervention programs in a county on that border;
(7) three representatives employed by a local law enforcement agency that has jurisdiction extending to the international border;
(8) one member from each of the following organizations: (A) the State Bar of Texas; (B) the Mexican American Bar Association; and (C) a nonprofit organization with significant experience in issues prevalent in the border region; and
(9) three licensed physicians from different locations along the international border.
(c) The task force may invite individuals from any state in the United Mexican States that borders Texas, with qualifications similar to those of members of the task force, to participate as members of the task force in task force activities.
(d) The task force may invite federal agencies with jurisdiction over alcohol and illegal drug laws to participate as members of the task force in task force activities.
(e) The task force has a chairperson and vice chairperson as presiding officers. The chairperson and vice chairperson alternate each year between the two membership groups appointed by the lieutenant governor and the speaker. The chairperson and vice chairperson may not be from the same membership group. The lieutenant governor shall designate a presiding officer from the appointed senate membership group and the speaker shall designate the other presiding officer from the appointed house of representatives membership group. The speaker of the house of representatives shall appoint the first chairperson, who will serve until January 1, 2007.
(f) The chairperson and vice chairperson shall nominate the members of the task force in Subsections (b)(3) and (6) through (9). Those members of the task force are appointed if a majority of the other members of the task force approve their appointment.
(g) The task force may seek and accept grants and donations to fulfill its duties.
(h) Not later than November 1 of each even-numbered year, the task force shall submit a report to the governor and the legislature regarding any recommendations or findings related to the duties of the task force.
(i) This section expires and the task force is abolished January 1, 2009.
Added by Acts 2005, 79th Leg., ch. 764, § 1, eff. Sept. 1, 2005.
SUBCHAPTER G. OFFICE OF MINORITY HEALTH
§ 12.081. OFFICE OF MINORITY HEALTH. The department shall establish and maintain an office of minority health in the department to:
(1) assume a leadership role in working or contracting with state and federal agencies, universities, private interest groups, communities, foundations, and offices of minority health to develop minority health initiatives, including bilingual communications; and
(2) maximize use of existing resources without duplicating existing efforts.
Added by Acts 1993, 73rd Leg., ch. 747, § 17, eff. Sept. 1, 1993.
§ 12.082. POWERS OF OFFICE. The office may: (1) provide a central information and referral source and serve as the primary state resource in coordinating, planning, and advocating access to minority health care services in this state;
(2) coordinate conferences and other training opportunities to increase skills among state agencies and government staff in management and in the appreciation of cultural diversity;
(3) pursue and administer grant funds for innovative projects for communities, groups, and individuals;
(4) provide recommendations and training in improving minority recruitment in state agencies;
(5) publicize minority health issues through the use of the media; (6) network with existing minority organizations; (7) solicit, receive, and spend grants, gifts, and donations from public and private sources; and
(8) contract with public and private entities in the performance of its responsibilities.
Added by Acts 1993, 73rd Leg., ch. 747, § 17, eff. Sept. 1, 1993.
§ 12.083. FUNDING. The department may distribute to the office unobligated and unexpended appropriations to be used to carry out its powers.
Added by Acts 1993, 73rd Leg., ch. 747, § 17, eff. Sept. 1, 1993.
§ 12.084. REPORT TO LEGISLATURE. Not later than January 1 of each odd-numbered year, the office shall submit a biennial report to the legislature regarding the activities of the office and any findings and recommendations relating to minority health issues.
Added by Acts 1993, 73rd Leg., ch. 747, § 17, eff. Sept. 1, 1993.
SUBCHAPTER H. MEDICAL ADVISORY BOARD
§ 12.091. DEFINITIONS. In this subchapter: (1) "Medical standards division" means the Medical Standards on Motor Vehicle Operations Division of the department.
(2) "Panel" means a panel of the medical advisory board.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995.
§ 12.092. MEDICAL ADVISORY BOARD; BOARD MEMBERS. (a) The commissioner shall appoint the medical advisory board members from:
(1) persons licensed to practice medicine in this state, including physicians who are board certified in internal medicine, psychiatry, neurology, physical medicine, or ophthalmology and who are jointly recommended by the Texas Department of Health and the Texas Medical Association; and
(2) persons licensed to practice optometry in this state who are jointly recommended by the department and the Texas Optometric Association.
(b) The medical advisory board shall assist the Department of Public Safety of the State of Texas in determining whether:
(1) an applicant for a driver's license or a license holder is capable of safely operating a motor vehicle; or
(2) an applicant for or holder of a license to carry a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, is capable of exercising sound judgment with respect to the proper use and storage of a handgun.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1261, § 21, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, § 9.23, eff. Sept. 1, 1999.
§ 12.093. ADMINISTRATION; RULES. (a) the medical advisory board is administratively attached to the medical standards division.
(b) The medical standards division: (1) shall provide administrative support for the medical advisory board and panels of the medical advisory board; and
(2) may collect and maintain the individual medical records necessary for use by the medical advisory board and the panels under this section from a physician, hospital, or other health care provider.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995.
§ 12.094. RULES RELATING TO MEDICAL ADVISORY BOARD MEMBERS. (a) The board:
(1) may adopt rules to govern the activities of the medical advisory board;
(2) by rule may establish a reasonable fee to pay a member of the medical advisory board for the member's professional consultation services; and
(3) if appropriate, may authorize per diem and travel allowances for each meeting a member attends, not to exceed the amounts authorized for state employees by the General Appropriations Act.
(b) The fee under Subsection (a)(2) may not be less than $75 or more than $150 for each meeting that the member attends.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995.
§ 12.095. BOARD PANELS; POWERS AND DUTIES. (a) If the Department of Public Safety of the State of Texas requests an opinion or recommendation from the medical advisory board as to the ability of an applicant or license holder to operate a motor vehicle safely or to exercise sound judgment with respect to the proper use and storage of a handgun, the commissioner or a person designated by the commissioner shall convene a panel to consider the case or question submitted by that department.
(b) To take action as a panel, at least three members of the medical advisory board must be present.
(c) Each panel member shall prepare an individual independent written report for the Department of Public Safety of the State of Texas that states the member's opinion as to the ability of the applicant or license holder to operate a motor vehicle safely or to exercise sound judgment with respect to the proper use and storage of a handgun, as appropriate. In the report the panel member may also make recommendations relating to that department's subsequent action.
(d) In its deliberations, a panel may examine any medical record or report that contains material that may be relevant to the ability of the applicant or license holder.
(e) The panel may require the applicant or license holder to undergo a medical or other examination at the applicant's or holder's expense. A person who conducts an examination under this subsection may be compelled to testify before the panel and in any subsequent proceedings under Subchapter N, Chapter 521, Transportation Code, concerning the person's observations and findings.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1261, § 22, eff. Sept. 1, 1997.
§ 12.096. PHYSICIAN REPORT. (a) A physician licensed to practice medicine in this state may inform the Department of Public Safety of the State of Texas or the medical advisory board, orally or in writing, of the name, date of birth, and address of a patient older than 15 years of age whom the physician has diagnosed as having a disorder or disability specified in a rule of the Department of Public Safety of the State of Texas.
(b) The release of information under this section is an exception to the patient-physician privilege requirements imposed under Section 159.002, Occupations Code.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.768, eff. Sept. 1, 2001.
§ 12.097. CONFIDENTIALITY REQUIREMENTS. (a) All records, reports, and testimony relating to the medical condition of an applicant or license holder:
(1) are for the confidential use of the medical advisory board, a panel, or the Department of Public Safety of the State of Texas;
(2) are privileged information; and (3) may not be disclosed to any person or used as evidence in a trial except as provided by Subsection (b).
(b) In a subsequent proceeding under Subchapter N, Chapter 521, Transportation Code, the medical standards division may provide a copy of the report of the medical advisory board or panel and a medical record or report relating to an applicant or license holder to:
(1) the Department of Public Safety of the State of Texas; (2) the applicant or license holder; and (3) the officer who presides at the hearing.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995.
§ 12.098. LIABILITY. A member of the medical advisory board, a member of a panel, a person who makes an examination for or on the recommendation of the medical advisory board, or a physician who reports to the medical advisory board or a panel under Section 12.096 is not liable for a professional opinion, recommendation, or report made under this subchapter.
Added by Acts 1995, 74th Leg., ch. 165, § 9, eff. Sept. 1, 1995.
SUBCHAPTER I. TEXAS VOLUNTEER HEALTH CORPS
§ 12.111. TEXAS VOLUNTEER HEALTH CORPS. (a) The department shall establish the Texas Volunteer Health Corps to enhance community-based public health services.
(b) The Texas Volunteer Health Corps shall connect volunteers with residents of local communities to involve those residents in preventive health care, expand the role of those residents in making decisions about their own health, and build community support for public health.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.091 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
§ 12.112. COORDINATORS. (a) The department may employ coordinators to recruit, train, and refer volunteers for service in local communities.
(b) A coordinator employed under this section may apply for grants from any public or private source for purposes of this subchapter.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.092 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
§ 12.113. VOLUNTEERS. (a) Volunteers recruited under this subchapter may include students in high school or an institution of higher education, senior citizens, participants in the AFDC job opportunities and basic skills (JOBS) training program, VISTA and AmeriCorps volunteers, and volunteers from business and community networks.
(b) To build healthy local communities, Texas Volunteer Health Corps volunteers may promote health, expand clients' capacity for self-help, make clinic appointments, arrange transportation, and identify community resources and provide links to those resources.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.093 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
§ 12.114. VITAL HEALTH CARE ISSUES. (a) The department may identify vital health care issues, including the use of tobacco and alcohol, end-of-life needs, health and safety issues on the Texas/Mexico border, family issues, oral health, violence, immunizations, homelessness, responsible adult and teen pregnancy, substance abuse, health promotion and education, and disease prevention.
(b) The Texas Volunteer Health Corps may address a vital health care issue if a local community identifies the issue as a priority.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.094 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
§ 12.115. MENTORS. The department shall encourage health care professionals to volunteer as mentors in the Texas Volunteer Health Corps.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.095 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
§ 12.116. INFORMATION. The department may provide public health information materials as needed by the Texas Volunteer Health Corps.
Added by Acts 1995, 74th Leg., ch. 768, § 1, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Health and Safety Code § 12.096 by Acts 1997, 75th Leg., ch. 165, § 31.01(52), eff. Sept. 1, 1997.
SUBCHAPTER J. TOBACCO SETTLEMENT PROCEEDS
§ 12.131. DEFINITIONS. In this subchapter: (1) "Account" has the meaning assigned by Section 403.1041, Government Code.
(2) "Advisory committee" means the tobacco settlement permanent trust account administration advisory committee.
(3) "Agreement" has the meaning assigned by Section 403.1041, Government Code.
(4) "Political subdivision" has the meaning assigned by Section 403.1041, Government Code.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.132. CERTIFICATION TO COMPTROLLER. The department shall collect information relating to the unreimbursed health care expenditures of each political subdivision and, based on that information and using the formula established in Paragraph 5.B. of the agreement, shall certify to the comptroller the percentage of each annual distribution to be paid from the account to each political subdivision.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.133. COLLECTION OF INFORMATION. (a) Each political subdivision shall submit to the department, in the manner and at the time required by the department, information that relates to the political subdivision's unreimbursed health care expenditures and is required by the department to make the certification under Section 12.132.
(b) Subject to the approval of the advisory committee, the board shall adopt rules governing the collection of information under Subsection (a). The rules may provide for regular audits of randomly selected political subdivisions and may govern the manner in which a political subdivision is selected for an audit and the selection of an auditor.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.134. DISPUTES RELATING TO INFORMATION COLLECTED. (a) Subject to the approval of the advisory committee, the board shall adopt rules under which a political subdivision or agency of this state may dispute information submitted by a political subdivision under Section 12.133.
(b) The rules may provide for: (1) an audit of the political subdivision that submitted the disputed information;
(2) payment of the costs of the audit by the party to the dispute who does not prevail in the dispute;
(3) a deadline for filing a dispute for a particular year; and (4) a reasonable monetary penalty to be applied to a subsequent annual distribution made to a political subdivision that is found to have overstated unreimbursed health care expenditures in the information submitted under Section 12.133.
(c) The monetary penalty applied under Subsection (b)(4) may not exceed 10 percent of the amount of the overstatement of unreimbursed health care costs.
(d) A dispute under this section is a contested case for purposes of Chapter 2001, Government Code.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.135. EFFECT OF DISPUTE. A dispute filed under department rules adopted under Section 12.134 does not affect the percentage of the annual distribution of the earnings from the account to be paid to the political subdivision for the year for which the information that is the subject of the dispute was submitted.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.136. ADJUSTMENT FOLLOWING AUDIT. (a) If the board finds, after an audit conducted under Section 12.133 or 12.134, that a political subdivision has overstated unreimbursed health care expenditures in the information submitted under Section 12.133 for any year, the department shall report that fact to the comptroller and shall reduce that political subdivision's percentage of the subsequent annual distribution of the earnings from the account appropriately.
(b) If a monetary penalty is applied under Section 12.134, the department shall also reduce the political subdivision's percentage of the subsequent annual distribution of the earnings from the account appropriately.
(c) If a political subdivision is assessed the cost of an audit under Section 12.134, the department shall report the amount assessed to the comptroller, and the comptroller may withhold that amount from the political subdivision's subsequent annual distribution. The comptroller may use the amount withheld to reimburse the general revenue fund for the cost of the audit.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.137. TOBACCO SETTLEMENT PERMANENT TRUST ACCOUNT ADMINISTRATION ADVISORY COMMITTEE. (a) The tobacco settlement permanent trust account administration advisory committee shall advise the board on the implementation of the department's duties under this subchapter.
(b) The advisory committee is composed of 11 members appointed as follows: (1) one member appointed by the board to represent a public hospital or hospital district located in a county with a population of 50,000 or less or a public hospital owned or maintained by a municipality;
(2) one member appointed by the political subdivision that, in the year preceding the appointment, received the largest annual distribution paid from the account;
(3) one member appointed by the political subdivision that, in the year preceding the appointment, received the second largest annual distribution paid from the account;
(4) four members appointed by the Texas Conference of Urban Counties from nominations received from political subdivisions that in the year preceding the appointment, received the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, or 12th largest annual distribution paid from the account;
(5) one member appointed by the County Judges and Commissioners Association of Texas;
(6) one member appointed by the North and East Texas County Judges and Commissioners Association;
(7) one member appointed by the South Texas County Judges and Commissioners Association; and
(8) one member appointed by the West Texas County Judges and Commissioners Association.
(b-1) An appointing entity under Subsection (b) is not a state association of counties.
(c) A commissioners court that sets the tax rate for a hospital district must approve any person appointed by the hospital district to serve on the advisory committee.
(d) The advisory committee shall elect the officers of the committee from among the members of the committee.
(e) The advisory committee may act only on the affirmative votes of eight members of the committee.
(f) Members of the advisory committee serve staggered six-year terms expiring on August 31 of each odd-numbered year.
(g) Appointments to the advisory committee shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(h) A member of the advisory committee may not receive compensation from the trust fund or the state for service on the advisory committee and may not be reimbursed from the trust fund or the state for travel expenses incurred while conducting the business of the advisory committee.
(i) The department shall provide administrative support and resources to the advisory committee as necessary for the advisory committee to perform the advisory committee's duties under this subchapter.
(j) Chapter 2110, Government Code, does not apply to the advisory committee.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999. Amended by Acts 2005, 79th Leg., ch. 1094, § 9, eff. Sept. 1, 2005.
§ 12.138. APPROVAL OF RULES. A rule to be adopted by the board relating to certification of a percentage of an annual distribution under Section 12.132 or collection of information under Sections 12.132, 12.133, and 12.134 must be submitted to the advisory committee and may not become effective before the rule is approved by the advisory committee. If the advisory committee disapproves a proposed rule, the advisory committee shall provide the board the specific reasons that the rule was disapproved.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999.
§ 12.139. ANNUAL REVIEW. The advisory committee shall annually: (1) review the results of any audit conducted under this subchapter and the results of any dispute filed under Section 12.134; and
(2) review the rules adopted by the board under this subchapter and propose any amendments to the rules the advisory committee considers necessary.
Added by Acts 1999, 76th Leg., ch. 753, § 2.01, eff. Aug. 30, 1999. § 13.002. ADMISSION OF OTHER PATIENTS. (a) The board may admit to any hospital under its supervision a patient who:
(1) is eligible to receive patient services under a department program; and
(2) will benefit from hospitalization. (b) Admission to a hospital as authorized under this section is subject to the availability of:
(1) appropriate space after the needs of eligible tuberculosis and chronic respiratory disease patients have been met; and
(2) trained medical personnel for the necessary medical care and treatment.
(c) The board may adopt rules and enter into contracts as necessary to implement this section.
(d) This section does not require the board or department to: (1) admit a patient to a particular hospital; (2) guarantee the availability of space at any hospital; or (3) provide treatment for a particular medical need at any hospital.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.003. SERVICES AT SOUTH TEXAS HEALTH CARE SYSTEM. (a) The primary purpose of the South Texas Health Care System is to provide inpatient and outpatient services, either directly or by contract with one or more public or private health care providers or entities, to the residents of the Lower Rio Grande Valley.
(b) The board may establish at the South Texas Health Care System: (1) cancer screening; (2) diagnostic services; (3) educational services; (4) obstetrical services; (5) gynecological services; (6) other inpatient health care services; and (7) outpatient health care services, including diagnostic, treatment, disease management, and supportive care services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1106, § 9, eff. Aug. 30, 1999; Acts 2001, 77th Leg., ch. 263, § 2, eff. May 22, 2001.
§ 13.004. TREATMENT OF CERTAIN MENTALLY ILL OR MENTALLY RETARDED PERSONS. (a) The Texas Department of Mental Health and Mental Retardation may transfer a mentally ill or mentally retarded person who is infected with tuberculosis to the Texas Center for Infectious Disease.
(b) The person may be transferred without that person's consent. (c) The cost of maintaining and treating the person at the Texas Center for Infectious Disease shall be paid from appropriations to that hospital.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 107, § 2, eff. Sept. 1, 1995.
§ 13.005. CARE AND TREATMENT OF CERTAIN PATIENTS. (a) The board shall fully develop essential services needed for the control of tuberculosis. To provide those services, the board may contract for the support, maintenance, care, and treatment of tuberculosis patients:
(1) admitted to facilities under the board's jurisdiction; or (2) otherwise subject to the board's jurisdiction. (b) The board may contract with: (1) municipal, county, or state hospitals; (2) private physicians; (3) licensed nursing homes and hospitals; and (4) hospital districts. (c) The board may contract for diagnostic and other services available in a community or region as necessary to prevent further spread of tuberculosis.
(d) A contract may not include the assignment of any lien accruing to the state.
(e) The board may establish and operate outpatient clinics as necessary to provide follow-up treatment on discharged patients. A person who receives treatment as an outpatient is financially liable in the manner provided for inpatients.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.006. PURPOSE OF TUBERCULOSIS CONTROL PROGRAM. The primary objectives of the tuberculosis control program are:
(1) case-finding; (2) inpatient and outpatient treatment; and (3) the eventual eradication of tuberculosis.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER B. TEXAS TUBERCULOSIS CODE
§ 13.031. SHORT TITLE. This subchapter may be cited as the Texas Tuberculosis Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.032. PURPOSE. The purpose of this subchapter is to: (1) enable persons with tuberculosis to obtain needed care; (2) provide care and treatment for those persons; and (3) facilitate their hospitalization.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.033. DEFINITIONS. In this subchapter: (1) "Legally responsible person" means a parent, guardian, or spouse, or any person whom the laws of this state hold responsible for debts incurred as a result of the hospitalization or treatment of a patient.
(2) "Local health authority" means a practicing physician who acts as: (A) a municipal or county health authority; (B) a director of a local health department or public health district; or
(C) a regional director of a public health region. (3) "Physician" means a person licensed by the Texas State Board of Medical Examiners to practice medicine in this state.
(4) "Political subdivision" includes a county, municipality, or hospital district.
(5) "State chest hospital" means the Texas Center for Infectious Disease and the South Texas Health Care System.
(6) "Tuberculosis patient" means a person who has any form of tuberculosis in any part of the body.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 107, § 5, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 263, § 3, eff. May 22, 2001.
§ 13.034. BOARD DUTIES. (a) The board shall adopt rules and bylaws relating to:
(1) the management of state chest hospitals; (2) the duties of officers and employees of those hospitals; and (3) the enforcement of necessary discipline and restraint of patients. (b) The board shall supply each hospital with the necessary personnel for the operation and maintenance of the hospital.
(c) The board may: (1) prescribe the form and content of applications, certificates, records, and reports provided for under this subchapter; (2) require reports from the administrator of a state chest hospital relating to the admission, examination, diagnosis, release, or discharge of a patient; (3) visit each hospital regularly to review admitting procedures and the care and treatment of all new patients admitted since the last visit; (4) investigate by personal visit a complaint made by a patient or by another person on behalf of a patient; and
(5) adopt rules as necessary for the proper and efficient hospitalization of tuberculosis patients.
(d) The board may delegate a power or duty of the board to an employee. The delegation does not relieve the board from its responsibility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.035. EMPLOYMENT OF HOSPITAL ADMINISTRATORS. (a) The department shall employ a qualified hospital administrator for each state chest hospital.
(b) A hospital administrator employed under this section is not required to be a licensed physician.
(c) The hospital administrator may delegate a power or duty of the administrator to an employee. The delegation does not relieve the hospital administrator from the responsibility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.036. PATIENT ADMISSION; EXAMINATION CERTIFICATE. (a) A resident of this state who has tuberculosis may be admitted to a state chest hospital. A person who is not a resident of this state and who has tuberculosis may be admitted to a state chest hospital in accordance with Section 13.046.
(b) The hospital shall review applications for admission and admit or deny admission to applicants.
(c) An application for admission to a state chest hospital shall be accompanied by a certificate issued by a physician stating that the physician has thoroughly examined the applicant and that the applicant has tuberculosis. In the case of an applicant who is not a resident of this state, the certificate may be issued by a physician who holds a license to practice medicine in the state of residence of the applicant.
(d) In the case of an indigent applicant, the certificate may be issued by the local health authority.
(e) The department shall prescribe the form and content of the certificate. (f) If the applicant has a communicable disease other than tuberculosis, the hospital administrator may delay the admission until the other disease is no longer contagious.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 107, § 1, eff. Sept. 1, 2003.
§ 13.037. DETERMINATION OF RESIDENCY. (a) A person is a resident of this state if the person:
(1) is physically present and living voluntarily in this state; (2) intends to make a home in this state; and (3) is not in this state temporarily. (b) The intent to make a home in this state may be demonstrated by proof similar to or including:
(1) the possession of documentation, such as a Texas driver's license, motor vehicle registration, or voter registration certificate; (2) the presence of personal effects at a specific abode in this state; or
(3) employment in this state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.038. CLASSIFICATION OF PATIENTS; LIEN. (a) A patient admitted to a state chest hospital is a public patient and classified as indigent, nonindigent, or nonresident.
(b) An indigent public patient is a person who: (1) does not possess property of any kind; (2) has no person who is legally responsible for the patient's support; and
(3) is unable to reimburse the state. (c) A nonindigent public patient is a person who possesses property out of which the state may be reimbursed, or who has a person who is legally responsible for the patient's support.
(d) Except as provided by Section 13.040, the state shall support and maintain an indigent or nonindigent public patient at state expense but is entitled to reimbursement for a nonindigent public patient's support.
(e) The state's claim for nonindigent support and maintenance constitutes a lien against the property of the patient or the legally responsible person who is financially able to contribute.
(f) A nonresident public patient is a person who is admitted in accordance with an interstate agreement under Section 13.046.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 107, § 2, eff. Sept. 1, 2003.
§ 13.039. COLLECTION OF STATE'S CLAIM. (a) A state claim for patient support and maintenance may be collected through an action brought against the patient or the person legally responsible for the patient. The action shall be brought in the county from which the patient was sent and shall be brought in the name of the state by the county or district attorney of that county or by the attorney general.
(b) The action shall be brought on the written request of the state chest hospital administrator, accompanied by a certificate as to the amount owed to the state. In any action, the certificate is sufficient evidence of the amount owed to the state for the support of that patient.
(c) On receipt of the request, the attorney shall bring and conduct the suit and is entitled to a commission of 10 percent of the amount collected. All money collected under this section, less the amount of the commission, shall be paid by the attorney to the hospital administrator, who shall receive the amount and give a receipt.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.040. EFFECT OF INDIGENT HEALTH CARE AND TREATMENT ACT. If an indigent or nonindigent public patient is eligible for health care assistance from a county hospital or public hospital under Chapter 61 (Indigent Health Care and Treatment Act), the state is entitled to reimbursement from that hospital for the treatment and support of the patient to the extent prescribed by that chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.041. RETURN OF CERTAIN NONRESIDENTS; RECIPROCAL AGREEMENTS. (a) The board may:
(1) return a nonresident patient admitted to a state chest hospital to the proper agency of the state of the patient's residence; and
(2) permit the return of a resident of this state who has been admitted to a tuberculosis hospital in another state.
(b) The state that is returning a patient shall pay the expenses of the return.
(c) The board may enter into reciprocal agreements with the proper agencies of other states to facilitate the return to the states of their residence of nonresident patients admitted to state chest hospitals in other states.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.042. DISCRIMINATION PROHIBITED. (a) A state chest hospital may not discriminate against a patient.
(b) Each patient is entitled to equal facilities, attention, and treatment. However, a state chest hospital may provide different care and treatment of patients because of differences in the condition of the individual patients.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.043. GRATUITIES PROHIBITED. (a) A patient in a state chest hospital may not offer an officer, agent, or employee of the hospital a tip, payment, or reward of any kind.
(b) A patient who violates this section may be expelled from the hospital. An employee who accepts a tip, payment, or reward of any kind from a patient may be discharged.
(c) The board shall strictly enforce this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.044. PRIVATE ACCOMMODATIONS. (a) On the request of any charitable organization in this state, the board may permit the erection, furnishing, and maintenance by the charitable organization of accommodations on the grounds of a state chest hospital for persons who have tuberculosis and who are:
(1) members of the charitable organization; (2) members of the families of persons who are members of the charitable organization; or
(3) surviving spouses or minor children of deceased persons who are members of the charitable organization.
(b) The accommodations shall be reserved for the preferential use of persons described by Subsection (a).
(c) The state may not incur any expense in the erection, furnishing, and maintenance of the accommodations. The charitable organization that enters a patient under this section may be required to pay the pro rata part of the maintenance costs of that patient that is found to be just and equitable, pending the next legislative appropriation for the maintenance of state chest hospitals. Any part of the accommodations not used by persons described by Subsection (a) may be used, at the discretion of the hospital administrator, by other patients in the hospital without charge to the state.
(d) The officers or a board or committee of the charitable organization and the board must enter into a written agreement relating to the location, construction, style, and character, and terms of existence of buildings, and other questions arising in connection with the grant of permission to erect and maintain private accommodations. The written agreement must be recorded in the minutes of the board.
(e) Except for the preferential right to occupy vacant accommodations erected by the person's charitable organization, a person described by Subsection (a) shall be classified in the same manner as other state chest hospital patients and shall be admitted, maintained, cared for, and treated in those hospitals in the same manner and under the same conditions and rules that apply to other patients.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.045. DONATION OF LAND BY COUNTY. (a) A county may donate and convey land to the state in consideration of the establishment of a state chest hospital by the board.
(b) The commissioners court of the county may determine the desirability, manner, and form of the donation and conveyance.
(c) This section does not authorize the commissioners court of a county to convey land donated or granted for educational purposes to the county in any manner other than that directed by law.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 13.046. ADMISSION OF NONRESIDENT PATIENTS. (a) The department may enter into an agreement with an agency of another state responsible for the care of residents of that state who have tuberculosis under which:
(1) residents of the other state who have tuberculosis may be admitted to a state chest hospital, subject to the availability of appropriate space after the needs of eligible tuberculosis and chronic respiratory disease patients who are residents of this state have been met; and
(2) the other state is responsible for paying all costs of the hospitalization and treatment of patients admitted under the agreement.
(b) Section 13.041 does not apply to the return of a nonresident patient admitted to a state chest hospital in accordance with an agreement entered into under this section. The return of that patient to the state of residence is governed by the agreement.
Added by Acts 2003, 78th Leg., ch. 107, § 3, eff. Sept. 1, 2003. § 32.001. SHORT TITLE. This chapter may be cited as the Maternal and Infant Health Improvement Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.002. DEFINITIONS. (a) In this chapter: (1) "Adolescent" means an individual younger than 18 years of age. (2) "Ancillary services" means services necessary to obtain timely, effective, and appropriate maternal and infant health improvement services, and includes prescription drugs, medical social services, transportation, health promotion services, and laboratory services.
(3) "Facility" includes a hospital, public health clinic, birthing center, outpatient clinic, or community health center.
(4) "Infant care" means maternal and infant health improvement services and ancillary services appropriate for an individual from birth to 12 months of age.
(5) "Intrapartum care" means maternal and infant health improvement services and ancillary services appropriate for a woman, fetus, or infant during childbirth.
(6) "Maternal and infant health improvement services" means services necessary to assure quality health care for women and children.
(7) "Medical assistance program" means the program administered by the single state agency under Title XIX of the Social Security Act (42 U.S.C. Section 1396 et seq.).
(8) "Other benefit" means a benefit, other than a benefit provided under this chapter, to which an individual is entitled for payment of the costs of maternal and infant health improvement services, ancillary services, educational services, or transportation services, including benefits available from:
(A) an insurance policy, group health plan, or prepaid medical care plan; (B) Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et seq.);
(C) the Veterans Administration; (D) the Civilian Health and Medical Program of the Uniformed Services; (E) workers' compensation or any other compulsory employers' insurance program;
(F) a public program created by federal or state law, other than Title XIX of the Social Security Act (42 U.S.C. Section 1396 et seq.), or by an ordinance or rule of a municipality or political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, or the facilities of a publicly supported medical school; or
(G) a cause of action for medical, facility, or medical transportation expenses, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.
(9) "Perinatal care" means maternal and infant health improvement services and ancillary services that are appropriate for women and infants during the perinatal period, which begins before conception and ends on the infant's first birthday.
(10) "Postpartum care" means maternal and infant health improvement services and ancillary services appropriate for a woman following a pregnancy.
(11) "Preconceptional care" means maternal and infant health improvement services and ancillary services appropriate for a woman before conception that are provided with the intent of planning and reducing health risks that might adversely affect her pregnancies.
(12) "Prenatal care" means maternal and infant health improvement services and ancillary services that are appropriate for a pregnant woman and the fetus during the period beginning on the date of conception and ending on the commencement of labor.
(13) "Program" means the maternal and infant health improvement services program authorized by this chapter.
(14) "Provider" means a person who, through a grant or a contract with the department or through other means approved by the department, provides maternal and infant health improvement services and ancillary services that are purchased by the department for the purposes of this chapter.
(15) "Support" means the contribution of money or services necessary for a person's maintenance, including food, clothing, shelter, transportation, and health care.
(b) The board by rule may define a word or term not defined by Subsection (a) as necessary to administer this chapter. The board may not define a word or term so that the word or term is inconsistent or in conflict with the purposes of this chapter, or is in conflict with the definition and conditions of practice governing a provider who is required to be licensed, registered, certified, identified, or otherwise sanctioned under the laws of this state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 124, § 2, eff. Sept. 1, 1995.
§ 32.003. MATERNAL AND INFANT HEALTH IMPROVEMENT SERVICES PROGRAM. (a) The board may establish a maternal and infant health improvement services program in the department to provide comprehensive maternal and infant health improvement services and ancillary services to eligible women and infants.
(b) If the program is established, the board shall adopt rules relating to: (1) the type, amount, and duration of services to be provided under this chapter; and
(2) the determination by the department of the services needed in each service area.
(c) If budgetary limitations exist, the board by rule shall establish a system of priorities relating to the types of services provided, geographic areas covered, or classes of individuals eligible for services.
(d) The board shall adopt the rules according to a statewide determination of the need for services.
(e) In structuring the program and adopting rules, the department and board shall attempt to maximize the amount of federal matching funds available for maternal and infant health improvement services while continuing to serve targeted populations.
(f) If necessary, the board by rule may coordinate services and other parts of the program with the medical assistance program. However, the board may not adopt rules relating to the services under either program that would:
(1) cause the program established under this chapter not to conform with federal law to the extent that federal matching funds would not be available; or
(2) affect the status of the single state agency to administer the medical assistance program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 124, § 3, eff. Sept. 1, 1995.
§ 32.005. ABORTION SERVICES RESTRICTED. Notwithstanding any other provision of this chapter, funds administered under this chapter may not be used to provide abortion services unless the mother's life is in danger.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.006. ADMINISTRATION. (a) The board shall adopt rules necessary to administer this chapter, and the department shall administer the program in accordance with board rules.
(b) The department shall prescribe the design and content of all necessary forms used in the program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.011. DENIAL, MODIFICATION, SUSPENSION, OR TERMINATION OF SERVICES. (a) The department may, for cause, deny, modify, suspend, or terminate services to an individual eligible for or receiving services after notice to the individual and an opportunity for a hearing.
(b) The board by rule shall provide criteria for action by the department under this section.
(c) Chapter 2001, Government Code, does not apply to the granting, denial, modification, suspension, or termination of services. The department shall conduct hearings in accordance with the board's due process hearing rules.
(d) The department shall render the final administrative decision in a due process hearing to deny, modify, suspend, or terminate the receipt of services.
(e) The notice and hearing required by this section do not apply if the department restricts program services to conform to budgetary limitations that require the board to establish service priorities.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(65), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 124, § 4, eff. Sept. 1, 1995.
§ 32.012. FINANCIAL ELIGIBILITY; OTHER BENEFITS. (a) The department shall require an individual receiving services under this chapter, or the person with a legal obligation to support the individual, to pay for or reimburse the department for that part of the cost of the services that the individual or person is financially able to pay.
(b) Except as provided by board rules, an individual is not eligible to receive services under this chapter to the extent that the individual or a person with a legal obligation to support the individual is eligible for some other benefit that would pay for all or part of the services.
(c) When a determination of eligibility to receive maternal and infant health improvement services is made under this chapter or when the services are received, the individual requesting or receiving services shall inform the department of any other benefit to which the individual or a person with a legal obligation to support the individual may be entitled.
(d) An individual who has received services that are covered by some other benefit, or any other person with a legal obligation to support that individual, shall reimburse the department to the extent of the services provided when the other benefit is received.
(e) The commissioner may waive enforcement of Subsections (b)-(d) of this section as prescribed by board rules in certain individually considered cases in which enforcement will deny services to a class of otherwise eligible individuals because of conflicting federal, state, or local laws or rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 124, § 5, eff. Sept. 1, 1995.
§ 32.013. RECOVERY OF COSTS. (a) The department may recover the cost of services provided under this chapter from a person who does not reimburse the department as required by Section 32.012 or from any third party who has a legal obligation to pay other benefits and to whom notice of the department's interest has been given.
(b) At the request of the commissioner, the attorney general may bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the services to the date on which the department is reimbursed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.014. FEES. (a) Except as prohibited by federal law or regulation, the board may charge fees for the services provided directly by the department or through approved providers in accordance with Subchapter D, Chapter 12.
(b) The board shall adopt standards and procedures to develop and implement a schedule of allowable charges for program services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.015. FUNDING. (a) Except as provided by this chapter or by other law, the board may seek, receive, and spend funds received through an appropriation, grant, donation, or reimbursement from any public or private source to administer this chapter.
(b) Notwithstanding other law, the department's authority to spend funds appropriated for the program established by this chapter is not affected by the amount of federal funds the department receives.
(c) The department is not required to provide maternal and infant health improvement services unless funds are appropriated to the department to administer this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 124, § 6, eff. Sept. 1, 1995.
§ 32.016. CONTRACTS. The department shall enter into contracts and agreements or award grants necessary to facilitate the efficient and economical provision of services under this chapter, including contracts and grants for the purchase of services, equipment, and supplies from approved providers.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.017. RECORDS AND REVIEW. (a) The department shall require each provider receiving reimbursement under this chapter to maintain records and information for each applicant for or recipient of services.
(b) The board shall adopt rules relating to the information a provider is required to report to the department and shall adopt procedures to prevent unnecessary and duplicative reporting of data.
(c) The department shall review records, information, and reports prepared by program providers and shall annually prepare a report for submission to the governor and the legislature relating to the status of the program. The department shall make the report available to the public.
(d) The report required under Subsection (c) must include: (1) the number of individuals receiving care under this chapter; (2) the total cost of the program, including a delineation of the total administrative costs and the total cost for each service authorized under Section 32.004(d); (3) the average cost per recipient of services; (4) the number of individuals who received services in each public health region; and
(5) any other information required by the board. (e) In computing the number of individuals to be reported under Subsection (d)(1), the department shall ensure that no individual is counted more than once.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.018. PROGRAM PLANS. (a) The department shall have a long-range plan covering at least six years that includes at least the following elements:
(1) quantifiable indicators of effort and success; (2) identification of priority client population and the minimum types of services necessary for that population; (3) a description of the appropriate use of providers, including the role of providers and considering the type, location, and specialization of the providers; (4) criteria for phasing out unnecessary services; (5) a comprehensive assessment of needs and inventory of resources; and (6) coordination of administration and service provision with federal, state, and local public and private programs that provide similar services.
(b) The department shall revise the plan by January 1 of each even-numbered year.
(c) The department shall develop a short-range plan that is derived from the long-range plan and that identifies and projects the costs relating to implementing the short-range plan.
(d) As part of the department's budget preparation process, the department shall biennially assess its achievement of the goals identified in each plan. The department's biennial budget shall be made according to the results of the assessment and the short-range plan. The department shall make its requests for new program funding and for continued funding according to demonstrated need.
(e) The department shall use the information collected under Section 32.017 to develop the long-range and short-range plans.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 32.021. REQUIREMENTS REGARDING THE WOMEN, INFANTS AND CHILDREN PROGRAM. (a) An agency, organization, or other entity that contracts with the Special Supplemental Nutrition Program for Women, Infants and Children shall each month provide the clinical and nutritional services supported by that program during extended hours, as defined by the department.
(b) Each agency, organization, or other entity that contracts with the program to provide clinical or nutritional services shall include in its annual plan submitted to the department a plan to expand client access to services through extended hours, the schedule for each site that provides services, and the reasons for each site's schedule. An agency, organization, or other entity that contracts with the program is not required to offer extended hours at each of its service sites. (c) The department shall adopt guidelines for extended hours and waivers from the requirement of Subsection (a).
(d) To obtain a waiver, an agency, organization, or other entity shall submit a written justification to the department explaining the extraordinary circumstances involved and identifying the time frame needed for their resolution.
(e) The department may not grant a waiver to an agency, organization, or other entity for a period of more than two years.
(f) If an agency, organization, or other entity required by this section to maintain extended hours provides other maternal and child health services, that entity shall also make those services available during the extended hours.
Added by Acts 1993, 73rd Leg., ch. 328, § 1, eff. Aug. 30, 1993. Amended by Acts 1997, 75th Leg., ch. 1317, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. PERINATAL HEALTH CARE SYSTEM
§ 32.041. LEGISLATIVE FINDINGS. (a) The legislature finds that the perinatal period beginning before conception and continuing through the first year of life poses unique challenges for the health care system. The development of a coordinated, cooperative system of perinatal health care within a geographic area will reduce unnecessary mortality and morbidity for women and infants.
(b) In order to improve the health of women and infants, it is necessary to promote health education, to provide assurance of reasonable access to safe and appropriate perinatal services, and to improve the quality of perinatal care by encouraging optimal use of health care personnel.
Added by Acts 1995, 74th Leg., ch. 124, § 7, eff. Sept. 1, 1995.
§ 32.042. DUTIES OF BOARD; RULES. (a) The board by rule shall adopt: (1) minimum standards and objectives to implement voluntary perinatal health care systems; and
(2) policies for health promotion and education, risk assessment, access to care, and perinatal system structure, including the transfer and transportation of pregnant women and infants.
(b) The rules must: (1) reflect all geographic areas of the state, considering time and distance;
(2) provide specific requirements for appropriate care of perinatal patients; and
(3) facilitate coordination among all perinatal service providers and health care facilities in the delivery area.
(c) The rules must include: (1) risk reduction guidelines for preconceptional, prenatal, intrapartum, postpartum, and infant care, including guidelines for the transfer and transportation of perinatal patients;
(2) criteria for determining geographic boundaries of perinatal health care systems;
(3) minimum requirements of health promotion and education, risk assessment, access to care, and coordination of services that must be present in a perinatal health care system;
(4) minimum requirements for resources and equipment needed by a health care facility to treat perinatal patients;
(5) standards for the availability and qualifications of the health care personnel treating perinatal patients in a facility;
(6) requirements for data collection, including operation of the perinatal health care system and patient outcomes;
(7) requirements for periodic performance evaluation of the system and its components; and
(8) assurances that health care facilities will not refuse to accept the transfer of a perinatal patient solely because of the person's inability to pay for services or because of the person's age, sex, race, religion, or national origin.
Added by Acts 1995, 74th Leg., ch. 124, § 7, eff. Sept. 1, 1995.
§ 32.043. DUTIES OF DEPARTMENT. The department shall: (1) develop and monitor a statewide network of voluntary perinatal health care systems;
(2) develop and maintain a perinatal reporting and analysis system to monitor and evaluate perinatal patient care in the perinatal health care systems in this state; and
(3) provide for coordination and cooperation in this state and among this state and adjoining states.
Added by Acts 1995, 74th Leg., ch. 124, § 7, eff. Sept. 1, 1995.
§ 32.044. SYSTEM REQUIREMENTS. (a) Each voluntary perinatal health care system must have:
(1) a coordinating board responsible for ensuring, providing, or coordinating planning access to services, data collection, and provider education;
(2) access to appropriate emergency medical services; (3) risk assessment, transport, and transfer protocols for perinatal patients;
(4) one or more health care facilities categorized according to perinatal care capabilities using standards adopted by board rule; and
(5) documentation of broad-based participation in planning by providers of perinatal services and community representatives throughout the defined geographic region.
(b) This subchapter does not prohibit a health care facility from providing services that it is authorized to provide under a license issued to the facility by the department.
Added by Acts 1995, 74th Leg., ch. 124, § 7, eff. Sept. 1, 1995.
§ 32.045. GRANT PROGRAM. (a) The department may establish a program to award grants to initiate, expand, maintain, and improve voluntary perinatal health care systems.
(b) The board by rule shall establish eligibility criteria for awarding the grants. The rules must require the department to consider:
(1) the need of an area and the extent to which the grant would meet the identified need;
(2) the availability of personnel and training programs; (3) the availability of other funding sources; (4) the assurance of providing quality services; (5) the need for emergency transportation of perinatal patients and the extent to which the system meets the identified needs; and
(6) the stage of development of a perinatal health care system. (c) The department may approve grants according to rules adopted by the board. A grant awarded under this section is governed by Chapter 783, Government Code, and rules adopted under that chapter.
Added by Acts 1995, 74th Leg., ch. 124, § 7, eff. Sept. 1, 1995. § 33.001. DEFINITIONS. In this chapter: (1) "Heritable disease" means an inherited disease that may result in mental or physical retardation or death.
(2) "Hypothyroidism" means a condition that may cause severe mental retardation if not treated.
(3) "Other benefit" means a benefit, other than a benefit under this chapter, to which an individual is entitled for the payment of the costs of services. The term includes:
(A) benefits available under: (i) an insurance policy, group health plan, or prepaid medical care plan;
(ii) Title XVIII of the Social Security Act (42 U.S.C. Section 1395); (iii) Title XIX of the Social Security Act (42 U.S.C. Section 1396); (iv) the Veterans' Administration; (v) the Civilian Health and Medical Program of the Uniformed Services; or
(vi) workers' compensation or any other compulsory employers insurance program;
(B) a public program created by federal or state law or by ordinance or rule of a municipality or political subdivision of the state, except those benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, or by the facilities of a publicly supported medical school; and
(C) benefits resulting from a cause of action for health care expenses, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.
(4) "Phenylketonuria" means an inherited condition that may cause severe mental retardation if not treated.
(5) "Screening test" means a rapid analytical procedure to determine the need for further diagnostic evaluation.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.002. DETECTION AND TREATMENT PROGRAM ESTABLISHED. (a) The department shall carry out a program to combat morbidity, including mental retardation, and mortality in persons who have phenylketonuria, other heritable diseases, or hypothyroidism.
(b) The board shall adopt rules necessary to carry out the program, including a rule specifying other heritable diseases covered by this chapter.
(c) The department shall establish and maintain a laboratory to: (1) conduct experiments, projects, and other activities necessary to develop screening or diagnostic tests for the early detection of phenylketonuria, other heritable diseases, and hypothyroidism;
(2) develop ways and means or discover methods to be used to prevent or treat phenylketonuria, other heritable diseases, and hypothyroidism; and
(3) serve other purposes considered necessary by the department to carry out the program.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.003. COOPERATION OF HEALTH CARE PROVIDERS AND GOVERNMENTAL ENTITIES. (a) The department may invite all physicians, hospitals, and other health care providers in the state that provide maternity and newborn infant care to cooperate and participate in any program established by the department under this chapter.
(b) Other boards, agencies, departments, and political subdivisions of the state capable of assisting the department in carrying out the program may cooperate with the department and are encouraged to furnish their services and facilities to the program.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.004. STUDY ON NEWBORN SCREENING METHODOLOGY AND EQUIPMENT. (a) Not later than March 1, 2006, the department shall:
(1) conduct a study to determine the most cost-effective method of conducting newborn screening, including screening for disorders listed in the core uniform panel of newborn screening conditions recommended in the 2005 report by the American College of Medical Genetics entitled "Newborn Screening: Toward a Uniform Screening Panel and System" or another report determined by the department to provide more appropriate newborn screening guidelines, to protect the health and welfare of this state's newborns and to maximize the number of newborn screenings that may be conducted with the funding available for the screening;
(2) determine the disorders to be studied under Subdivision (1) and ensure the study does not examine screening and services provided under Chapter 47; and
(3) obtain proposals or information regarding the conduct of newborn screening and compare the costs of the department performing newborn screening services to the costs of outsourcing screening to a qualified laboratory with at least two years' experience performing newborn screening tests.
Text of subsec. (a-1) effective until January 1, 2007
(a-1) Not later than October 1, 2005, the department shall review and study the National Newborn Screening and Genetics Resources Center's assessment of the screening program in this state. Based on the findings and recommendations in the assessment, the executive commissioner of the Health and Human Services Commission may adopt rules for the department to implement a newborn screening program. In adopting rules for the newborn screening program, the department and the executive commissioner:
(1) may seek input during the rulemaking process from individuals and groups with an interest or expertise in newborn screening;
(2) may use informal conferences or consultations to obtain opinions on the program as provided by Section 2001.031, Government Code; and
(3) must provide an opportunity for the individuals and groups described by Subdivision (1) to appear before the department before a notice of proposed rules is given as required by Section 2001.023, Government Code.
Text of subsec. (a-2) effective until January 1, 2007
(a-2) This subsection and Subsection (a-1) expire January 1, 2007. (b) In accordance with rules adopted by the executive commissioner of the Health and Human Services Commission, the department may implement a newborn screening program.
Text of subsec. (b-1) effective until January 1, 2007
(b-1) Not later than March 1, 2006, the department shall file with the governor's office a written report of the results and conclusions of the study conducted by the department under Subsection (a). This subsection expires January 1, 2007.
(c) If the department determines under Subsection (a) that the department's performance of newborn screening services is more cost-effective than outsourcing newborn screening, the department shall obtain the use of screening methodologies, including tandem mass spectrometers, and hire the employees necessary to administer newborn screening under this chapter.
(d) If the department determines under Subsection (a) that outsourcing of newborn screening is more cost-effective, the department shall contract for the resources and services necessary to conduct newborn screening using a competitive procurement process.
(e) The department shall periodically review the newborn screening program as revised under this section to determine the efficacy and cost-effectiveness of the program and determine whether adjustments to the program are necessary to protect the health and welfare of this state's newborns and to maximize the number of newborn screenings that may be conducted with the funding available for the screening.
(f) The department may adjust the amounts charged for newborn screening fees, including fees assessed for follow-up services, tracking confirmatory testing, and diagnosis.
Added by Acts 2005, 79th Leg., ch. 940, § 2, eff. Sept. 1, 2005.
SUBCHAPTER B. NEWBORN SCREENING
§ 33.011. TEST REQUIREMENT. (a) The physician attending a newborn child or the person attending the delivery of a newborn child that is not attended by a physician shall subject the child to screening tests approved by the department for phenylketonuria, other heritable diseases, hypothyroidism, and other disorders for which screening is required by the department.
(a-1) To the extent funding is available for the screening, the department shall require newborn screening tests to screen for disorders listed in the core uniform panel of newborn screening conditions recommended in the 2005 report by the American College of Medical Genetics entitled "Newborn Screening: Toward a Uniform Screening Panel and System" or another report determined by the department to provide more appropriate newborn screening guidelines to protect the health and welfare of this state's newborns.
(b) The department may prescribe the screening test procedures to be used and the standards of accuracy and precision required for each test.
(c) The screening tests required by this section must be performed by the laboratory established by the department or by a laboratory approved by the department under Section 33.016.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 2005, 79th Leg., ch. 940, § 3, eff. Sept. 1, 2005.
§ 33.012. EXEMPTION. (a) Screening tests may not be administered to a newborn child whose parents, managing conservator, or guardian objects on the ground that the tests conflict with the religious tenets or practices of an organized church of which they are adherents.
(b) If a parent, managing conservator, or guardian objects to the screening tests, the physician or the person attending the newborn child that is not attended by a physician shall ensure that the objection of the parent, managing conservator, or guardian is entered into the medical record of the child. The parent, managing conservator, or guardian shall sign the entry.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.013. LIMITATION ON LIABILITY. A physician, technician, or other person administering the screening tests required by this chapter is not liable or responsible because of the failure or refusal of a parent, managing conservator, or guardian to consent to the tests for which this chapter provides.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.014. DIAGNOSIS; FOLLOW-UP. (a) If, because of an analysis of a specimen submitted under Section 33.011, the department reasonably suspects that a newborn child may have phenylketonuria, another heritable disease, hypothyroidism, or another disorder for which the screening tests are required, the department shall notify the person who submits the specimen that the results are abnormal and provide the test results to that person. The department may notify one or more of the following that the results of the analysis are abnormal and recommend further testing when necessary:
(1) the physician attending the newborn child or the physician's designee; (2) the person attending the delivery of the newborn child that was not attended by a physician;
(3) the parents of the newborn child; (4) the health authority of the jurisdiction in which the newborn child was born or in which the child resides, if known; or
(5) physicians who are cooperating pediatric specialists for the program. (b) If a screening test indicates that a newborn child is at high risk, the department shall recommend that the child be placed under the medical care of a licensed physician for diagnosis and provide the name of a consultant pediatric specialist in the child's geographic area.
(c) The department, the health authority, and the consulting pediatric specialist may follow up a positive test with the attending physician or with a parent of the newborn child if the child was not attended by a physician at birth.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 2005, 79th Leg., ch. 940, § 4, eff. Sept. 1, 2005.
§ 33.015. REPORTS; RECORD KEEPING. (a) Each physician, health authority, or other individual who has the information of a confirmed case of a disorder for which a screening test is required that has been detected by a mechanism other than identification through a screening of a specimen by the department's diagnostic laboratory shall report the confirmed case to the department.
(b) The department may collect data to derive incidence and prevalence rates of disorders covered by this chapter from the information on the specimen form submitted to the department for screening determinations.
(c) The department shall maintain a roster of children born in this state who have been diagnosed as having one of the disorders for which the screening tests are required.
(d) The department may cooperate with other states in the development of a national roster of individuals who have been diagnosed as having one of the disorders for which the screening tests are required if:
(1) participation in the national roster encourages systematic follow-up in the participating states;
(2) incidence and prevalence information is made available to participating newborn screening programs in other states; and
(3) each participating newborn screening program subscribes to an agreement to protect the identity and diagnosis of the individuals whose names are included in the national roster.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.016. APPROVAL OF LABORATORIES. (a) The department may develop a program to approve any laboratory that wishes to perform the tests required to be administered under this chapter. To the extent that they are not otherwise provided in this chapter, the board may adopt rules prescribing procedures and standards for the conduct of the program.
(b) The department may prescribe the form and reasonable requirements for the application and the procedures for processing the application.
(c) The department may prescribe the test procedure to be employed and the standards of accuracy and precision required for each test.
(d) The department may extend or renew any approval in accordance with reasonable procedures prescribed by the board.
(e) The department may for good cause, after notice to the affected laboratory and a hearing if requested, restrict, suspend, or revoke any approval granted under this section.
(f) Hearings under this section shall be conducted in accordance with the hearing rules adopted by the board and the applicable provisions of Chapter 2001, Government Code.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
SUBCHAPTER C. NEWBORN SCREENING PROGRAM SERVICES
§ 33.031. COORDINATION WITH CHILDREN WITH SPECIAL HEALTH CARE NEEDS SERVICES. (a) All newborn children and other individuals under 21 years of age who have been screened, have been found to be presumptively positive through the newborn screening program for phenylketonuria, other heritable diseases, hypothyroidism, or another disorder for which the screening tests are required, and may be financially eligible may be referred to the department's services program for children with special health care needs.
(b) An individual who is determined to be eligible for services under the services program for children with special health care needs shall be given approved services through that program. An individual who does not meet that eligibility criteria shall be referred to the newborn screening program for a determination of eligibility for newborn screening program services.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 1505, § 3.11, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 940, § 5, eff. Sept. 1, 2005.
§ 33.032. PROGRAM SERVICES. (a) Within the limits of funds available for this purpose and in cooperation with the individual's physician, the department may provide services directly or through approved providers to individuals of any age who meet the eligibility criteria specified by board rules on the confirmation of a positive test for phenylketonuria, other heritable diseases, hypothyroidism, or another disorder for which the screening tests are required.
(b) The board may adopt: (1) rules specifying the type, amount, and duration of program services to be offered;
(2) rules establishing the criteria for eligibility for services, including the medical and financial criteria;
(3) rules establishing the procedures necessary to determine the medical, financial, and other eligibility of the individual;
(4) substantive and procedural rules for applying for program services and processing those applications;
(5) rules for providing services according to a sliding scale of financial eligibility;
(6) substantive and procedural rules for the denial, modification, suspension, and revocation of an individual's approval to receive services; and
(7) substantive and procedural rules for the approval of providers to furnish program services.
(c) The department may select providers according to the criteria in the board's rules.
(d) The board may charge fees for the provision of services, except that services may not be denied to an individual because of the individual's inability to pay the fees.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 2005, 79th Leg., ch. 940, § 6, eff. Sept. 1, 2005.
§ 33.033. CONSENT. The department may not provide services without the consent of the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.034. DENIAL, MODIFICATION, SUSPENSION, AND REVOCATION OF APPROVAL TO PROVIDE SERVICES. (a) After notice and an opportunity for a fair hearing, the department may deny the approval or modify, suspend, or revoke the approval of a person to provide services under this chapter.
(b) Notice shall be given and the hearing shall be conducted in accordance with the department's informal hearing procedures.
(c) Chapter 2001, Government Code, does not apply to the notice and hearing required by this section.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995; Acts 2005, 79th Leg., ch. 728, § 9.001, eff. Sept. 1, 2005.
§ 33.035. INDIVIDUALS ELIGIBLE FOR SERVICES. (a) An individual is not eligible to receive the services authorized by this chapter at no cost or reduced cost to the extent that the individual or the parent, managing conservator, guardian, or other person with a legal obligation to support the individual is eligible for some other benefit that would pay for all or part of the services.
(b) The department may waive ineligibility under Subsection (a) if the department finds that:
(1) good cause for the waiver is shown; and (2) enforcement of the requirement would tend to defeat the purpose of this chapter or disrupt the administration or prevent the provision of services to an otherwise eligible recipient.
(c) When an application for services is filed or at any time that an individual is eligible for or receiving services, the applicant or recipient shall inform the department of any other benefit to which the applicant, recipient, or person with a legal obligation to support the applicant or recipient may be entitled.
(d) The board by rule shall provide criteria for actions taken under this section.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.036. DENIAL, MODIFICATION, SUSPENSION, AND REVOCATION OF ELIGIBILITY TO RECEIVE SERVICES. (a) After notice to the individual or, if the individual is a minor, the individual's parent, managing conservator, or guardian and an opportunity for a fair hearing, the department may deny, modify, suspend, or revoke the determination of a person's eligibility to receive services at no cost or at reduced cost under this chapter.
(b) Notice shall be given and the hearing shall be conducted in accordance with the department's informal hearing procedures.
(c) Chapter 2001, Government Code, do not apply to the notice and hearing required by this section.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 33.037. REIMBURSEMENT. (a) The board may require an individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian, or other person with a legal obligation to support the individual to pay or reimburse the department for all or part of the cost of the services provided.
(b) The recipient or the parent, managing conservator, guardian, or other person with a legal obligation to support an individual who has received services from the department that are covered by some other benefit shall, when the other benefit is received, reimburse the department for the cost of services provided.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991.
§ 33.038. RECOVERY OF COSTS. (a) The department is entitled to recover an expenditure for services provided under this chapter from:
(1) a person who does not reimburse the department as required by this chapter; or
(2) a third party with a legal obligation to pay other benefits and who has received prior written notice of the department's interests in the other benefits.
(b) This section creates a separate and distinct cause of action, and the commissioner may request the attorney general to bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
(d) The board by rule shall provide criteria for actions taken under this section.
Amended by Acts 1991, 72nd Leg., ch. 14, § 8, eff. Sept. 1, 1991. § 35.001. SHORT TITLE. This chapter may be cited as the Children with Special Health Care Needs Services Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1505, § 3.01, eff. Sept. 1, 1999.
§ 35.0021. DEFINITIONS. In this chapter: (1) "Case management services" includes: (A) coordinating medical services, marshaling available assistance, serving as a liaison between the child and the child's family and caregivers, insurance services, and other services needed to improve the well-being of the child and the child's family; and
(B) counseling for the child and the child's family about measures to prevent the transmission of AIDS or HIV and the availability in the geographic area of any appropriate health care services, such as mental health care, psychological health care, and social and support services.
(2) "Child with special health care needs" has the meaning assigned by Section 35.0022.
(3) "Dentist" means a person licensed by the State Board of Dental Examiners to practice dentistry in this state.
(4) "Facility" includes a hospital, an ambulatory surgical center, and an outpatient clinic.
(5) "Family support services" means support, resources, or other assistance provided to the family of a child with special health care needs. The term may include services described by Part A of the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.), as amended, and permanency planning, as that term is defined by Section 531.151, Government Code.
(6) "Other benefit" means a benefit, other than a benefit provided under this chapter, to which a person is entitled for payment of the costs of services provided under the program, including benefits available from:
(A) an insurance policy, group health plan, health maintenance organization, or prepaid medical or dental care plan;
(B) Title XVIII, Title XIX, or Title XXI of the Social Security Act (42 U.S.C. § 1395 et seq., 42 U.S.C. § 1396 et seq., and 42 U.S.C. § 1397aa et seq.), as amended;
(C) the Department of Veterans Affairs; (D) the Civilian Health and Medical Program of the Uniformed Services; (E) workers' compensation or any other compulsory employers' insurance program;
(F) a public program created by federal or state law or the ordinances or rules of a municipality or other political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, or the facilities of a publicly supported medical school; or
(G) a cause of action for the cost of care, including medical care, dental care, facility care, and medical supplies, required for a person applying for or receiving services from the department, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.
(7) "Physician" means a person licensed by the Texas State Board of Medical Examiners to practice medicine in this state.
(8) "Program" means the services program for children with special health care needs.
(9) "Provider" means a person who delivers services purchased by the department for the purposes of this chapter.
(10) "Rehabilitation services" means the process of the physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury and includes:
(A) facility care, medical and dental care, and occupational, speech, and physical therapy;
(B) the provision of braces, artificial appliances, durable medical equipment, and other medical supplies; and
(C) other types of care specified by the board in the program rules. (11) "Services" means the care, activities, and supplies provided under this chapter or program rules, including medical care, dental care, facility care, medical supplies, occupational, physical, and speech therapy, and other care specified by program rules.
(12) "Specialty center" means a facility and staff that meet minimum standards established under the program and are designated by the board for program use in the comprehensive diagnostic and treatment services for a specific medical condition.
(13) "Support" means to contribute money or services necessary for a person's maintenance, including food, clothing, shelter, transportation, and health care.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.02, eff. Sept. 1, 1999.
§ 35.0022. CHILD WITH SPECIAL HEALTH CARE NEEDS. (a) In this chapter, "child with special health care needs" means a person who:
(1) is younger than 21 years of age and who has a chronic physical or developmental condition; or
(2) has cystic fibrosis, regardless of the person's age. (b) The term "child with special health care needs" may include a person who has a behavioral or emotional condition that accompanies the person's physical or developmental condition. The term does not include a person who has a behavioral or emotional condition without having an accompanying physical or developmental condition.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.02, eff. Sept. 1, 1999.
§ 35.003. SERVICES PROGRAM FOR CHILDREN WITH SPECIAL HEALTH CARE NEEDS. (a) The program is in the department to provide services to eligible children with special health care needs. The program shall provide:
(1) early identification of children with special health care needs; (2) diagnosis and evaluation of children with special health care needs; (3) rehabilitation services to children with special health care needs; (4) development and improvement of standards and services for children with special health care needs;
(5) case management services; (6) other family support services; and (7) access to health benefits plan coverage under Section 35.0031. (b) The board by rule shall: (1) specify the type, amount, and duration of services to be provided under this chapter; and
(2) permit the payment of insurance premiums for eligible children. (c) If budgetary limitations exist, the board by rule shall establish a system of priorities relating to the types of services or the classes of persons eligible for the services. A waiting list of eligible persons may be established if necessary for the program to remain within the budgetary limitations. The department shall collect from each applicant for services who is placed on a waiting list appropriate information to facilitate contacting the applicant when services become available and to allow efficient enrollment of the applicant in those services. The information collected must include:
(1) the applicant's name, address, and phone number; (2) the name, address, and phone number of a contact person other than the applicant;
(3) the date of the applicant's earliest application for services; (4) the applicant's functional needs; (5) the range of services needed by the applicant; and (6) a date on which the applicant is scheduled for reassessment. (d) The program may provide: (1) transportation and subsistence for an eligible child with special health care needs and the child's parent, managing conservator, guardian, or other adult caretaker approved by the program to obtain services provided by the program; and
(2) the following services to an eligible child with special health care needs who dies in an approved facility outside the child's municipality of residence while receiving program services:
(A) the transportation of the child's remains, and the transportation of a parent or other person accompanying the remains, from the facility to the place of burial in this state that is designated by the parent or other person legally responsible for interment;
(B) the expense of embalming, if required for transportation; (C) the cost of a coffin purchased at a minimum price, if a coffin is required for transportation; and
(D) any other necessary expenses directly related to the care and return of the child's remains to the place of burial in this state.
(e) The department may: (1) develop methods to improve the efficiency and effectiveness of the program; and
(2) conduct pilot studies. (f) The program is separate from the financial or medical assistance program established by Chapters 31 and 32, Human Resources Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1505, § 3.03, eff. Sept. 1, 1999.
§ 35.0031. HEALTH BENEFITS PLAN COVERAGE FOR CERTAIN ELIGIBLE CHILDREN. The department shall obtain coverage under a health benefits plan for a child who:
(1) is eligible for services under this chapter; and (2) is not eligible for assistance under: (A) a program established under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended; or
(B) the medical assistance program under Chapter 32, Human Resources Code.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.04, eff. Sept. 1, 1999.
§ 35.0032. BENEFITS COVERAGE REQUIRED. To the extent possible, the health benefits plan required by Section 35.0031 must provide benefits comparable to the benefits provided under the state child health plan established by this state to implement Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.04, eff. Sept. 1, 1999.
§ 35.0033. HEALTH BENEFITS PLAN PROVIDER. (a) A health benefits plan provider who provides coverage for benefits under Section 35.0031 must:
(1) hold a certificate of authority or other appropriate license issued by the Texas Department of Insurance that authorizes the health benefits plan provider to provide the type of coverage to be offered under Section 35.0031; and
(2) satisfy, except as provided by Subsection (b), any other applicable requirement of the Insurance Code or another insurance law of this state.
(b) Except as required by the department, a health benefits plan provider under this chapter is not subject to a law that requires coverage or the offer of coverage of a health care service or benefit.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.04, eff. Sept. 1, 1999.
§ 35.0034. COST-SHARING PAYMENTS. (a) Except as provided by Subsection (b), the department may not require a child who is provided health benefits plan coverage under Section 35.0031 and who meets the income eligibility requirement of the medical assistance program under Chapter 32, Human Resources Code, to pay a premium, deductible, coinsurance, or other cost-sharing payment as a condition of health benefits plan coverage under this chapter.
(b) The department may require a child described by Subsection (a) to pay a copayment as a condition of health benefits plan coverage under Section 35.0031 that is equal to any copayment required under the state child health plan established by this state to implement Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended.
(c) The department may require a child who is provided health benefits plan coverage under Section 35.0031 and who meets the income eligibility requirement of a program established under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, to pay a premium, deductible, coinsurance, or other cost-sharing payment as a condition of health benefits plan coverage. The payment must be equal to any premium, deductible, coinsurance, or other cost-sharing payment required under the state child health plan established by this state to implement Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.04, eff. Sept. 1, 1999.
§ 35.0035. DISALLOWANCE OF MATCHING FUNDS FROM FEDERAL GOVERNMENT. Expenditures made to provide health benefits plan coverage under Section 35.0031 may not be included for the purpose of determining the state children's health insurance expenditures, as that term is defined by 42 U.S.C. Section 1397ee(d)(2)(B), as amended.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.04, eff. Sept. 1, 1999.
§ 35.004. SERVICE PROVIDERS. (a) The board shall adopt substantive and procedural rules for the selection of providers to participate in the program, including rules for the selection of specialty centers and rules requiring that providers accept program payments as payment in full for services provided.
(b) The board shall approve physicians, dentists, licensed dietitians, facilities, specialty centers, and other providers to participate in the program according to the criteria and following the procedures prescribed by the board.
(c) The department may pay only for services delivered by an approved provider, except in an emergency.
(d) Except as specified in the program rules, a recipient of services may select any provider approved by the board. If the recipient is a minor, the person legally authorized to consent to the treatment may select the provider.
(e) The board shall adopt substantive and procedural rules for the modification, suspension, or termination of the approval of a provider.
(f) The board shall provide a due process hearing procedure for the resolution of conflicts between the department and a provider. Chapter 2001, Government Code, do not apply to conflict resolution procedures adopted under this section.
(g) The department may not terminate the approval of a provider while a hearing is pending under this section. The department may withhold payments while the hearing is pending, but shall pay the withheld payments and resume contract payments if the final determination is favorable to the provider.
(h) Subsection (f) does not apply if a contract: (1) is canceled by the department because services are restricted to conform to budgetary limitations and service priorities are adopted by the board regarding types of services to be provided; or
(2) expires according to its terms. (i) The Interagency Cooperation Act (Article 4413(32), Vernon's Texas Civil Statutes) does not apply to a payment made by the department for services provided by a publicly supported medical school facility to an eligible child. A publicly supported medical school facility receiving payment under this chapter shall deposit the payment in local funds.
(j) This section does not apply to services for which coverage is provided under the health benefits plan established under Section 35.0031.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 393, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1505, § 3.05, eff. Sept. 1, 1999.
§ 35.0041. PARTICIPATION AND REIMBURSEMENT OF TELEMEDICINE MEDICAL SERVICE PROVIDERS. (a) The department by rule shall develop and implement policies permitting reimbursement of a provider for services under the program performed using telemedicine medical services.
(b) The policies must provide for reimbursement of: (1) providers using telemedicine medical services and telehealth services in a cost-effective manner that ensures the availability to a child with special health care needs of services appropriately performed using telemedicine medical services and telehealth services that are comparable to the same types of services available to that child without use of telemedicine medical services and telehealth services;
(2) a provider for a service performed using telemedicine medical services and telehealth services at an amount equal to the amount paid to a provider for performing the same service without using telemedicine medical services and telehealth services;
(3) multiple providers of different services who participate in a single telemedicine medical services or telehealth services session for a child with special health care needs, if the department determines that reimbursing each provider for the session is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services and telehealth services, including the costs of transportation and lodging and other direct costs; and
(4) providers using telemedicine medical services and telehealth services included in the school health and related services program.
(c) In developing and implementing the policies required by this section, the department shall consult with:
(1) The University of Texas Medical Branch at Galveston; (2) Texas Tech University Health Sciences Center; (3) the Health and Human Services Commission, including the state Medicaid office;
(4) providers of telemedicine medical services and telehealth services hub sites in this state;
(5) providers of services to children with special health care needs; and (6) representatives of consumer or disability groups affected by changes to services for children with special health care needs.
(d) This section applies to services for which coverage is provided under the health benefits plan established under Section 35.0031.
Added by Acts 2001, 77th Leg., ch. 959, § 4, eff. June 14, 2001.
§ 35.005. ELIGIBILITY FOR SERVICES. (a) The board by rule shall: (1) define medical, financial, and other criteria for eligibility to receive services; and
(2) establish a system for verifying eligibility information submitted by an applicant for or recipient of services.
(b) In defining medical and financial criteria for eligibility under Subsection (a), the board may not:
(1) establish an exclusive list of coverable medical conditions; or (2) consider as a source of support to provide services assets legally owned or available to a child's household.
(c) A child is not eligible to receive rehabilitation services unless: (1) the child is a resident of this state; (2) at least one physician or dentist certifies to the department that the physician or dentist has examined the child and finds the child to be a child with special health care needs whose disability meets the medical criteria established by the board;
(3) the department determines that the persons who have any legal obligation to provide services for the child are unable to pay for the entire cost of the services;
(4) the child has a family income that is less than or equal to 200 percent of the federal poverty level; and
(5) the child meets all other eligibility criteria established by board rules.
(d) A child is not eligible to receive services, other than rehabilitation services, unless the child:
(1) is a resident of this state; and (2) meets all other eligibility criteria established by board rules. (e) Notwithstanding Subsection (c)(4), a child with special health care needs who has a family income that is greater than 200 percent of the federal poverty level and who meets all other eligibility criteria established by this section and by board rules is eligible for services if the department determines that the child's family is or will be responsible for medical expenses that are equal to or greater than the amount by which the family's income exceeds 200 percent of the federal poverty level.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1505, § 3.06, eff. Sept. 1, 1999.
§ 35.006. DENIAL, MODIFICATION, SUSPENSION, OR TERMINATION OF SERVICES. (a) The board shall adopt substantive and procedural rules for the denial of applications and the modification, suspension, or termination of services.
(b) The department may deny services to an applicant and modify, suspend, or terminate services to a recipient after:
(1) notice to the child or the person who is legally obligated to support the child; (2) a preliminary program review; and (3) an opportunity for a fair hearing. (c) The board by rule shall provide criteria for action by the department under this section.
(d) The department shall conduct hearings under this section in accordance with the board's due process hearing rules. Chapter 2001, Government Code, do not apply to the granting, denial, modification, suspension, or termination of services.
(e) This section does not apply if the department restricts services to conform to budgetary limitations that require the board to adopt service priorities regarding types of services to be provided.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 35.0061. REFERRAL FOR BEHAVIORAL OR EMOTIONAL CONDITIONS. If a child with special health care needs who is eligible for services under this chapter has a behavioral or emotional condition and the child is eligible for services from another provider of services that would address the behavioral or emotional condition, the department shall refer the child to that provider for those services.
Added by Acts 1999, 76th Leg., ch. 1505, § 3.07, eff. Sept. 1, 1999.
§ 35.007. FINANCIAL ELIGIBILITY; OTHER BENEFITS. (a) The board shall require a child receiving services, or the person who has a legal obligation to support the child, to pay for or reimburse the department for that part of the cost of the services that the child or person is financially able to pay.
(b) A child is not eligible to receive services under this chapter to the extent that the child or a person with a legal obligation to support the child is eligible for some other benefit that would pay for all or part of the services. The board may waive this subsection if its enforcement will deny services to a class of children because of conflicting state and federal laws or rules and regulations.
(c) When the application is made under this chapter or at any time before, during, or after the receipt of services, an applicant for or recipient of services shall inform the department of any other benefit to which the child or any person who has a legal obligation to support the child may be entitled.
(d) A child who has received services that are covered by some other benefit, or any other person with a legal obligation to support the child, shall reimburse the department to the extent of the services provided when the other benefit is received.
(e) The department may collect the cost of services provided under this chapter directly:
(1) in accordance with Title XVIII, Title XIX, or Title XXI of the Social Security Act (42 U.S.C. § 1395 et seq., 42 U.S.C. § 1396 et seq., and 42 U.S.C. § 1397aa et seq.), as amended; or
(2) from any personal insurance, a health maintenance organization, or any other third party who has a legal obligation to pay other benefits.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1505, § 3.08, eff. Sept. 1, 1999.
§ 35.008. RECOVERY OF COSTS. (a) The department may recover the cost of services provided under this chapter from a person who does not pay or reimburse the department as required by Section 35.007 or from any third party who has a legal obligation to pay other benefits.
(b) This section creates a separate cause of action, and the commissioner may request the attorney general to bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 35.009. FEES. The board may adopt reasonable procedures and standards for the determination of fees and charges for program services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 35.010. FUNDING. The department may receive and spend: (1) gifts made for the purposes of this chapter; and (2) funds appropriated or granted by the state or federal government to provide services for children.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 35.011. CONTRACTS. The department may enter into contracts and agreements necessary to carry out this chapter, including interagency agreements to provide for the efficient and uninterrupted provision of necessary services to children who are eligible to receive services from two or more public programs.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 35.012. RECORDS. (a) The department may take a census, make surveys, and establish permanent records of children with special health care needs.
(b) The department shall maintain a record of orthotic and prosthetic devices, durable medical equipment, and medical supplies purchased by the department for children with special health care needs. Those items are not state-owned personal property and are exempt from the personal property inventory requirements of Subtitle D, Title 10, Government Code.
(c) The purchase of the items described by Subsection (b) is subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 11, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 165, § 17.19(4), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1505, § 3.09, eff. Sept. 1, 1999.
§ 35.013. LIMITATIONS ON AUTHORITY. (a) This chapter does not limit the authority of a parent, managing conservator, or guardian over a minor.
(b) This chapter does not entitle an employee, agent, or representative of the department or other official agent to enter a home over the objection of a child or, if the child is a minor, over the objection of the child's parent, managing conservator, or guardian.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 36.001. SHORT TITLE. This chapter may be cited as the Special Senses and Communication Disorders Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.002. PURPOSE. (a) The purpose of this chapter is to establish a program to identify, at as early an age as possible, those individuals from birth through 20 years of age who have special senses and communication disorders and who need remedial vision, hearing, speech, and language services. Early detection and remediation of those disorders provide the individuals with the opportunity to reach academic and social status through adequate educational planning and training.
(b) This chapter shall be implemented in accordance with the provisions of professional license laws that pertain to professional examinations and remedial services for individuals with special senses and communication disorders.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.003. DEFINITIONS. In this chapter: (1) "Communication disorder" means an abnormality of functioning related to the ability to express and receive ideas.
(2) "Other benefit" means a benefit, other than a benefit under this chapter, to which an individual is entitled for payment of the costs of remedial services, and includes:
(A) benefits received under a personal insurance contract; (B) payments received from another person for personal injury caused by the other person's negligence or wrongdoing; and
(C) payments received from any other source. (3) "Preschool" means an educational or child-care institution that admits children who are three years of age or older but younger than five years of age.
(4) "Professional examination" means a diagnostic evaluation performed by an appropriately licensed professional or, if the professional is not required to be licensed under the laws of this state, by a certified or sanctioned individual whose area of expertise addresses the diagnostic needs of an individual identified as having a possible special senses or communication disorder.
(5) "Provider" means a person who provides remedial services to individuals who have special senses and communication disorders, and includes a physician, audiologist, speech pathologist, optometrist, psychologist, hospital, clinic, rehabilitation center, university, or medical school.
(6) "Remedial services" means professional examinations and prescribed remediation, including prosthetic devices, for individuals with special senses or communication disorders.
(7) "School" means an educational institution that admits children who are five years of age or older but younger than 21 years of age.
(8) "Screening" means a test or battery of tests administered to rapidly determine the need for a professional examination.
(9) "Special senses" means the faculties by which the conditions or properties of things are perceived, and includes vision and hearing.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.004. SCREENING PROGRAM FOR SPECIAL SENSES AND COMMUNICATION DISORDERS. (a) The board by rule shall require screening of individuals who attend public or private preschools or schools to detect vision and hearing disorders and any other special senses or communication disorders specified by the board. In developing the rules, the board may consider the number of individuals to be screened and the availability of:
(1) personnel qualified to administer the required screening; (2) appropriate screening equipment; and (3) state and local funds for screening activities. (b) The rules must include procedures necessary to administer screening activities.
(c) The board shall adopt a schedule for implementing the screening requirements and shall give priority to the age groups that may derive the greatest educational and social benefits from early identification of special senses and communication disorders.
(d) The rules must provide for acceptance of results of screening conducted by a licensed professional, regardless of whether that professional is under contract with the department, if:
(1) the professional's legally defined scope of practice includes the area for which the screening is conducted; and
(2) the professional uses acceptable procedures for the screening. (e) The department may coordinate the special senses and communication disorders screening activities of school districts, private schools, state agencies, volunteer organizations, and other entities so that the efforts of each entity are complementary and not fragmented and duplicative. The department may provide technical assistance to those entities in developing screening programs and may provide educational and other material to assist local screening activities.
(f) The department may provide screening personnel, equipment, and services only if the screening requirements cannot otherwise be met.
(g) The department shall monitor the quality of screening activities provided under this chapter.
(h) This section does not prohibit a volunteer from participating in the department's screening programs.
(i) A hearing screening performed under this section is in addition to any hearing screening test performed under Chapter 47.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1347, § 2, eff. Sept. 1, 1999.
§ 36.005. COMPLIANCE WITH SCREENING REQUIREMENTS. (a) An individual required to be screened shall undergo approved screening for vision and hearing disorders and any other special senses and communication disorders specified by the board. The individual shall comply with the requirements as soon as possible after the individual's admission to a preschool or school and within the period set by the board. The individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian, may substitute professional examinations for the screening.
(b) An individual is exempt from screening if screening conflicts with the tenets and practices of a recognized church or religious denomination of which the individual is an adherent or a member. To qualify for the exemption, the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian, must submit to the admitting officer of the preschool or school on or before the day of admission an affidavit stating the objections to screening.
(c) The chief administrator of each preschool or school shall ensure that each individual admitted to the preschool or school complies with the screening requirements set by the board or submits an affidavit of exemption.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.006. RECORDS; REPORTS. (a) The chief administrator of each preschool or school shall maintain, on a form prescribed by the department, screening records for each individual in attendance, and the records are open for inspection by the department or the local health department.
(b) The department may, directly or through local health departments, enter a preschool or school and inspect records maintained by the preschool or school relating to screening for special senses and communication disorders.
(c) An individual's screening records may be transferred among preschools and schools without the consent of the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian.
(d) Each preschool or school shall submit to the department an annual report on the screening status of the individuals in attendance during the reporting year and shall include in the report any other information required by the board. The report must be on a form prescribed by the department and must be submitted according to the board's rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.007. PROVISION OF REMEDIAL SERVICES. (a) The department may provide remedial services directly or through approved providers to eligible individuals who have certain special senses and communication disorders and who are not eligible for special education services that remediate those disorders and that are administered by the Texas Education Agency through the public schools.
(b) The board by rule shall: (1) describe the type, amount, and duration of remedial services that the department provides; (2) establish medical, financial, and other criteria to be applied by the department in determining an individual's eligibility for the services; (3) establish criteria for the selection by the department of providers of remedial services; and
(4) establish procedures necessary to provide remedial services. (c) The board may establish a schedule to determine financial eligibility. (d) The department may not require remedial services without the consent of the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 6.34, eff. Sept. 1, 1997.
§ 36.008. INDIVIDUALS ELIGIBLE FOR REMEDIAL SERVICES. (a) An individual is not eligible to receive the remedial services authorized by this chapter to the extent that the individual or the parent, managing conservator, or other person with a legal obligation to support the individual is eligible for some other benefit that would pay for all or part of the services.
(b) The department may waive ineligibility under Subsection (a) if the department finds that:
(1) good cause for the waiver is shown; and (2) enforcement of the requirement would tend to defeat the purpose of this chapter or disrupt the administration or prevent the provision of remedial services to an otherwise eligible recipient.
(c) When an application for remedial services is filed or at any time that an individual is eligible for and receiving remedial services, the applicant or recipient shall inform the department of any other benefit to which the applicant, recipient, or person with a legal obligation to support the applicant or recipient may be entitled.
(d) The department may modify, suspend, or terminate the eligibility of an applicant for or recipient of remedial services after notice to the affected individual and an opportunity for a fair hearing that is conducted in accordance with the informal hearing rules adopted by the board.
(e) The board by rule shall provide criteria for actions taken under this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.009. REIMBURSEMENT. (a) The board may require an individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian, to pay or reimburse the department for a part of the cost of the remedial services provided.
(b) The recipient or the parent, managing conservator, or other person with a legal obligation to support an individual who has received remedial services from the department that are covered by some other benefit shall, when the other benefit is received, reimburse the department for the cost of services provided.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.010. RECOVERY OF COSTS. (a) The department is entitled to recover an expenditure for services provided under this chapter from:
(1) a person who does not reimburse the department as required by this chapter; or
(2) a third party with a legal obligation to pay other benefits and who has notice of the department's interests in the other benefits.
(b) The commissioner may request the attorney general to bring suit in the appropriate court of Travis County on behalf of the department. A suit brought under this section need not be ancillary or dependent on any other action.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
(d) The board by rule shall provide criteria for actions taken under this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.011. QUALIFICATIONS OF PERSONS PROVIDING SCREENING AND REMEDIAL SERVICES. (a) The department may require that persons who administer special senses and communication disorders screening complete an approved training program, and the department may train those persons and approve training programs.
(b) A person who provides speech and language screening services authorized by this chapter must be:
(1) appropriately licensed; or (2) trained and monitored by a person who is appropriately licensed. (c) A person who is not an appropriately licensed professional may not conduct hearing screening authorized by this chapter other than screening of hearing sensitivity. The person shall refer an individual who is unable to respond reliably to that screening to an appropriately licensed professional.
(d) A person who provides a professional examination or remedial services authorized by this chapter for speech, language, or hearing disorders must be appropriately licensed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.012. RESEARCH; REPORT TO LEGISLATURE. (a) The department may conduct research and compile statistics on the provision of remedial services to individuals with special senses and communication disorders and on the availability of those services in the state.
(b) The department shall compile and publish a report for the legislature on or before February 1 of each year describing the conduct of the screening and remedial services programs and their impact on public health.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.013. FUNDING. The department may accept appropriations, donations, and reimbursements, including donations of prosthetic devices, and may apply those items to the purposes of this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 36.014. CONTRACTS. The department may enter into contracts and agreements necessary to administer this chapter, including contracts for the purchase of remedial services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 37.001. SCREENING PROGRAM FOR ABNORMAL SPINAL CURVATURE. (a) The department, in cooperation with the Texas Education Agency, shall establish a program to detect abnormal spinal curvature in children.
(b) The board, in cooperation with the Texas Education Agency, shall adopt rules for the mandatory spinal screening of children in grades 6 and 9 attending public or private schools. The department shall coordinate the spinal screening program with any other screening program conducted by the department on those children.
(c) The board shall adopt substantive and procedural rules necessary to administer screening activities.
(d) A rule adopted by the board under this chapter may not require any expenditure by a school, other than an incidental expense required for certification training for nonhealth practitioners and for notification requirements under Section 37.003.
(e) The department may coordinate the spinal screening activities of school districts, private schools, state agencies, volunteer organizations, and other entities so that the efforts of each entity are complementary and not duplicative. The department may provide technical assistance to those entities in developing screening programs and may provide educational and other material to assist local screening activities.
(f) The department shall monitor the quality of screening activities provided under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 6.36, eff. Sept. 1, 1997.
§ 37.002. COMPLIANCE WITH SCREENING REQUIREMENTS. (a) Each individual required by board rule to be screened shall undergo approved screening for abnormal spinal curvature. The individual's parent, managing conservator, or guardian may substitute professional examinations for the screening.
(b) An individual is exempt from screening if screening conflicts with the tenets and practices of a recognized church or religious denomination of which the individual is an adherent or a member. To qualify for the exemption, the individual's parent, managing conservator, or guardian must submit to the chief administrator on or before the day of the screening procedure an affidavit stating the objections to screening.
(c) The chief administrator of each school shall ensure that each individual admitted to the school complies with the screening requirements set by the board or submits an affidavit of exemption.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 37.003. REPORTS. (a) If the screening performed under this chapter indicates that an individual may have abnormal spinal curvature, the individual performing the screening shall fill out a report on a form prescribed by the department.
(b) The chief administrator of the school shall retain one copy of the report and shall mail one copy to the parent, managing conservator, or guardian of the individual screened.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 37.004. QUALIFICATIONS OF PERSONS PROVIDING SCREENING. (a) The department may train persons who administer the spinal screening procedure and may approve training programs.
(b) A person who provides screening services authorized by this chapter must be:
(1) appropriately licensed or certified as a health practitioner; or (2) certified as having completed an approved training program in screening for abnormal spinal curvature.
(c) A person who provides a professional examination authorized by this chapter for abnormal spinal curvature must be appropriately licensed or certified as a health practitioner.
(d) It is the intent of the legislature that the department provide certification training for nonhealth practitioners through Texas Education Agency regional education service centers.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 6.37, eff. Sept. 1, 1997.
§ 37.005. FUNDING. The department may accept appropriations, donations, and reimbursements and may apply those items to the purposes of this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 37.006. CONTRACTS. The department may enter into contracts and agreements necessary to administer this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 38.001. PROGRAM ESTABLISHED. (a) The department shall establish and develop a state program for the control and eradication of pediculosis of minors.
(b) The program may include procedures for detection of pediculosis and instructions for treatment.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 38.002. TREATMENT OF MINOR WHO HAS PEDICULOSIS. For the purpose of treating a minor who has pediculosis, the parent or guardian of the minor shall:
(1) follow the instructions of the department; or (2) place the minor under the care of a licensed physician.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 39.001. DEFINITION. In this chapter, "heart disease or defect" means an abnormality or disease of the heart or major blood vessel near the heart.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 39.002. CHILDREN'S OUTREACH HEART PROGRAM. The department, with approval of the board, may establish a children's outreach heart program to provide:
(1) prediagnostic cardiac screening and follow-up evaluation services to persons under 21 years of age who are from low-income families and who may have a heart disease or defect; and
(2) training to local physicians and public health nurses in screening and diagnostic procedures for heart disease or defect.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 39.003. RULES. The board shall adopt rules it considers necessary to define the scope of the children's outreach heart program and the medical and financial standards for eligibility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 39.004. FEES. Recipients of services or training provided by the program may be charged a fee for services or training according to rules adopted by the board.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 39.005. FUNDING. The department may seek, receive, and spend any funds received through appropriations, grants, or donations from public or private sources for the purposes of the children's outreach heart program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 39.006. CONTRACTS. The department may enter into contracts or agreements it considers necessary to facilitate the provision of services under this chapter, including contracts with other departments, agencies, boards, educational institutions, individuals, county governments, municipal governments, states, and the United States.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 40.001. DEFINITION. In this chapter, "epilepsy" means a variable symptom complex characterized by recurrent paroxysmal attacks of unconsciousness or impaired consciousness, usually with a succession of clonic or tonic muscular spasms or other abnormal behavior.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.002. EPILEPSY PROGRAM. (a) The department, with approval of the board, may establish an epilepsy program to provide diagnostic services, treatment, and support services to eligible persons who have epilepsy.
(b) The commissioner may appoint an epilepsy advisory board to assist the department in developing the epilepsy program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.003. RULES. The board may adopt rules it considers necessary to define the scope of the epilepsy program and the medical and financial standards for eligibility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.004. ADMINISTRATION. (a) The commissioner, with the approval of the board, may appoint an administrator to carry out the epilepsy program.
(b) The administrator shall report to and be under the direction of the commissioner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.005. FEES. Program patients may be charged a fee for services according to rules adopted by the board.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.006. FUNDING. The department may seek, receive, and spend any funds received through appropriations, grants, or donations from public or private sources for the purposes of the epilepsy program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 40.007. CONTRACTS. The department may enter into contracts or other agreements it considers necessary to facilitate the provision of services under this chapter, including contracts with other departments, agencies, boards, educational institutions, individuals, county governments, municipal governments, states, and the United States.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 41.001. DEFINITIONS. In this chapter: (1) "Hemophilia" means a human physical condition characterized by bleeding resulting from a genetically determined deficiency of a blood coagulation factor or hereditarily resulting in an abnormal or deficient plasma procoagulant.
(2) "Other benefit" means a benefit, other than a benefit under this chapter, to which a person is entitled for payment of the costs of blood, blood derivatives and concentrates, and other substances provided under this chapter, including benefits available from:
(A) an insurance policy, group health plan, or prepaid medical or dental care plan; (B) Title XVIII or Title XIX of the Social Security Act (42 U.S.C. § 1395 et seq. or 42 U.S.C. § 1396 et seq.); (C) the Veterans Administration; (D) the Civilian Health and Medical Program of the Uniformed Services; (E) workers' compensation or any compulsory employers' insurance program; (F) a public program created by federal law, state law, or the ordinances or rules of a municipality or political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, or the facilities of a publicly supported medical school; or
(G) a cause of action for medical or dental expenses to a person applying for or receiving services from the department, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.002. HEMOPHILIA ASSISTANCE PROGRAM. (a) The hemophilia assistance program is in the department to assist persons who have hemophilia and who require continuing treatment with blood, blood derivatives, or manufactured pharmaceutical products, but who are unable to pay the entire cost of the treatment.
(b) The department shall establish standards of eligibility for assistance under this chapter in accordance with Section 41.004.
(c) The department shall provide, through approved providers, financial assistance for medically eligible persons in obtaining blood, blood derivatives and concentrates, and other substances for use in medical or dental facilities or in the home.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.003. ADMINISTRATION. (a) The commissioner may employ or appoint an administrator who shall carry out the hemophilia assistance program and report to the commissioner.
(b) The administrator may employ two persons to help carry out the program.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.004. FINANCIAL ELIGIBILITY. (a) A person is not eligible to receive services provided by this chapter:
(1) to the extent that another person with a legal obligation to provide for the person's care and treatment is financially able to pay for all or part of the services provided by this chapter; or
(2) to the extent that the person or a person with a legal obligation to support the person is eligible for some other benefit that would pay for all or part of the services provided by this chapter.
(b) When the application is made under this chapter or when the services are received, the person applying for or receiving services shall inform the department of any other benefit to which the person or any other person with a legal obligation to support the person may be entitled.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.005. REIMBURSEMENT. (a) The department shall require a person receiving services under this chapter who is financially able to bear part of the expense, or a person who has a legal obligation to provide for the person's care and treatment and who is financially able to bear part of the expense, to pay for or reimburse the department for that part of the cost of the services provided to the person by the department.
(b) A person who has received services that are covered by some other benefit, or any other person with a legal obligation to support that person, shall reimburse the department to the extent of the services provided when the other benefit is received.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.006. RECOVERY OF COSTS. (a) The department may recover the cost of services provided under this chapter from a person who does not reimburse the department as required by Section 41.005 or from any third party who has a legal obligation to pay other benefits and to whom notice of the department's interest has been given.
(b) At the request of the commissioner, the attorney general may bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 41.007. FUNDING. (a) The department may accept gifts and grants from individuals, private or public organizations, or federal or local funds to support the hemophilia assistance program.
(b) The department shall investigate any potential sources of funding from federal grants or programs.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 42.001. SHORT TITLE; PURPOSE. (a) This chapter may be cited as the Texas Kidney Health Care Act.
(b) The state finds that one of the most serious and tragic problems facing the public health and welfare is the death each year from chronic kidney disease of hundreds of persons in this state, when the present state of medical art and technology could return many of those individuals to a socially productive life. Patients may die for lack of personal financial resources to pay for the expensive equipment and care necessary for survival. The state therefore recognizes a responsibility to allow its citizens to remain healthy without being pauperized and a responsibility to use the resources and organization of the state to gather and disseminate information on the prevention and treatment of chronic kidney disease.
(c) A comprehensive program to combat kidney disease must be implemented through the combined and correlated efforts of individuals, state and local governments, persons in the field of medicine, universities, and nonprofit organizations. The program provided by this chapter is designed to direct the use of resources and to coordinate the efforts of the state in this vital matter of public health.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.002. DEFINITIONS. In this chapter: (1) "Division" means the kidney health care division. (2) "Other benefit" means a benefit, other than one provided under this chapter, to which a person is entitled for payment of the costs of medical care and treatment, services, pharmaceuticals, transportation, and supplies, including benefits available from:
(A) an insurance policy, group health plan, or prepaid medical care plan; (B) Title XVIII or Title XIX of the Social Security Act (42 U.S.C. § 1395 et seq. and 42 U.S.C. § 1396 et seq.); (C) the Veterans Administration; (D) the Civilian Health and Medical Program of the Uniformed Services; (E) workers' compensation or other compulsory employers' insurance program; (F) a public program created by federal law, state law, or the ordinances or rules of a municipality or other political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, or a hospital district; or
(G) a cause of action for medical expenses brought by an applicant for or recipient of services from the department, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.003. KIDNEY HEALTH CARE DIVISION. (a) The kidney health care division is in the department to carry out this chapter. The board shall administer the division.
(b) The division may assist in the development and expansion of programs for the care and treatment of persons with chronic kidney disease, including dialysis and other lifesaving medical procedures and techniques.
(c) The board may adopt rules necessary to carry out this chapter and to provide adequate kidney care and treatment for citizens of this state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.004. SERVICES. (a) The division shall provide kidney care services directly or through public or private resources to persons determined by the board to be eligible for services authorized under this chapter.
(b) The division may cooperate with other departments, agencies, political subdivisions, and public and private institutions to provide the services authorized by this chapter to eligible persons, to study the public health and welfare needs involved, and to plan, establish, develop, and provide programs or facilities and services that are necessary or desirable, including any that are jointly administered with state agencies.
(c) The division may conduct research and compile statistics relating to the provision of kidney care services and the need for the services by disabled or handicapped persons.
(d) The division may contract with schools, hospitals, corporations, agencies, and individuals, including doctors, nurses, and technicians, for training, physical restoration, transportation, and other services necessary to treat and care for persons with kidney disease.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.0045. DISTRIBUTION OF DRUGS AND DEVICES. (a) Sections 483.041(a) and 483.042, Subtitle J, Title 3, Occupations Code, and other applicable laws establishing prohibitions do not apply to a dialysate, device, or drug exclusively used or necessary to perform dialysis that a physician prescribes or orders for administration or delivery to a person with chronic kidney failure if:
(1) the dialysate, device, or drug is lawfully held by a manufacturer or wholesaler registered with the board;
(2) the manufacturer or wholesaler delivers the dialysate, device, or drug to:
(A) a person with chronic kidney failure for self-administration at the person's home or a specified address, as ordered by a physician; or
(B) a physician for administration or delivery to a person with chronic kidney failure; and
(3) the manufacturer or wholesaler has sufficient and qualified supervision to adequately protect the public health.
(b) The board shall adopt rules necessary to ensure the safe distribution, without the interruption of supply, of a dialysate, device, or drug covered by Subsection (a). The rules must include provisions regarding manufacturer and wholesaler licensing, record keeping, evidence of a delivery to a patient or a patient's designee, patient training, specific product and quantity limitation, physician prescriptions or order forms, adequate facilities, and appropriate labeling to ensure that necessary information is affixed to or accompanies the dialysate, device, or drug.
(c) If the board determines that a dialysate, device, or drug distributed under this chapter is ineffective or unsafe for its intended use, the board may immediately recall the dialysate, device, or drug distributed to an individual patient.
(d) A dialysate, device, or drug covered by Subsection (a) may be delivered only by:
(1) the manufacturer or wholesaler to which the physician has issued an order; or
(2) a carrier authorized to possess the dialysate, device, or drug under Section 483.041(c).
Added by Acts 1991, 72nd Leg., ch. 14, § 12, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.769, eff. Sept. 1, 2001.
§ 42.005. FACILITIES. (a) The board may establish and maintain standards for the accreditation of all facilities designed or intended to deliver care or treatment for persons with chronic kidney disease.
(b) The division may conduct surveys of existing facilities in this state that diagnose, evaluate, and treat patients with kidney disease and may prepare and submit its findings and a specific program of action.
(c) The division may evaluate the need to create local or regional facilities and to establish a major kidney research center.
(d) The division may: (1) establish or construct rehabilitation facilities and workshops; (2) make grants to public agencies and make contracts or other arrangements with public and other nonprofit agencies, organizations, or institutions for the establishment of workshops and rehabilitation facilities; and
(3) operate facilities to carry out this chapter. (e) The board may provide for the establishment, supervision, management, and control of kidney care facilities.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.006. SELECTION OF SERVICE PROVIDERS. (a) The department shall select providers to furnish kidney health care services under the program according to the criteria and procedures adopted by the board.
(b) The board shall provide a hearing procedure for the resolution of conflicts between the department and a provider. Chapter 2001, Government Code, do not apply to conflict resolution procedures adopted under this section.
(c) The department may not terminate a contract while a hearing is pending under this section. The department may withhold payments while the hearing is pending, but shall pay the withheld payments and resume contract payments if the final determination is in favor of the provider.
(d) Subsections (b) and (c) do not apply if a contract: (1) is canceled because program services are restricted to conform to budgetary limitations that require the board to adopt service priorities regarding types of services to be furnished or classes of eligible individuals; or
(2) expires according to its terms.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 42.007. ELIGIBILITY FOR SERVICES. The board may determine the terms, conditions, and standards, including medical and financial standards, for the eligibility of persons with chronic kidney disease to receive the aid, care, or treatment provided under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.008. DENIAL, MODIFICATION, SUSPENSION, OR TERMINATION OF SERVICES. (a) After notice and an opportunity for a hearing, the department for cause may deny the application of or modify, suspend, or terminate services to an applicant for or recipient of services.
(b) The program rules adopted by the board must contain the criteria for the department's action under this section.
(c) Chapter 2001, Government Code, do not apply to the granting, denial, modification, suspension, or termination of services provided under this chapter. Hearings under this section must be conducted in accordance with the board's hearing rules.
(d) This section does not apply if program services are restricted to conform to budgetary limitations that require the board to adopt service priorities regarding types of services to be furnished or classes of eligible persons.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 42.009. REIMBURSEMENT. (a) An applicant or recipient is not eligible to receive services provided by this chapter to the extent that the applicant or recipient, or another person with a legal obligation to support the applicant or recipient, is eligible for some other benefit that would pay for all or part of the services provided by this chapter.
(b) When an application is made under this chapter or at any time while a person is eligible and receiving services under this chapter, the applicant or recipient, or the person with a legal obligation to support the applicant or recipient, shall inform the department of any other benefit to which the applicant or recipient, or the person with a legal obligation to support the applicant or recipient, may be entitled.
(c) A recipient who has received services that are covered by some other benefit, or the person with a legal obligation to support that recipient, shall reimburse the department to the extent of the cost of services provided when the other benefit is received.
(d) The board may waive the provisions of Subsection (a) in certain individually considered cases when the enforcement of that provision will deny services to a class of end stage renal disease patients because of conflicting state or federal laws or rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.010. RECOVERY OF COSTS. (a) The department may recover the costs of services provided under this chapter from a person who does not reimburse the department as required by Section 42.009(c), or from any third party who has a legal obligation to pay other benefits and to whom notice of the department's interest has been given.
(b) At the request of the commissioner, the attorney general may bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.011. FUNDING. (a) The division may receive and use gifts to carry out this chapter.
(b) The board may comply with any requirements necessary to obtain federal funds in the maximum amount and most advantageous proportions possible to carry out this chapter.
(c) The comptroller may receive all money appropriated by congress and allotted to this state for carrying out this chapter or agreements or plans authorized by this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1423, § 10.01, eff. Sept. 1, 1997.
§ 42.012. CONTRACTS. (a) The division may enter into contracts and agreements with persons, colleges, universities, associations, corporations, municipalities, and other units of government as necessary to carry out this chapter.
(b) A contract may provide for payment by the state, within the limits of funds available, for material, equipment, or services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.013. COOPERATION. (a) The division may cooperate with private or public agencies to facilitate the availability of adequate care for all citizens with chronic kidney disease.
(b) The board shall make agreements, arrangements, or plans to cooperate with the federal government in carrying out the purposes of this chapter or of any federal statute or rule relating to the prevention, care, or treatment of kidney disease or the care, treatment, or rehabilitation of persons with kidney disease. The board may adopt rules and methods of administration found by the federal government to be necessary for the proper and efficient operation of the agreements, arrangements, or plans.
(c) The division may enter into reciprocal agreements with other states.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.014. SCIENTIFIC INVESTIGATIONS. (a) The division may develop and administer scientific investigations into the cause, prevention, methods of treatment, and cure of kidney disease, including research into kidney transplantation.
(b) The division may develop techniques for an effective method of mass testing to detect kidney disease and urinary tract infections.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.015. EDUCATIONAL PROGRAMS. (a) The division may institute, carry on, and supervise educational programs for the public and health providers, including physicians, hospitals, and public health departments, concerning chronic kidney disease, including prevention and methods of care and treatment.
(b) The division may use existing public or private programs or groups for the educational programs.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.016. REPORTS. The board shall report to the governor and the legislature not later than February 1 of each year concerning its findings, progress, and activities under this chapter and the state's total need in the field of kidney health care.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.017. INSURANCE PREMIUMS. The board may provide for payment of the premiums required to maintain coverage under Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et seq.) for certain classes of persons with end stage renal disease, in individually considered instances according to criteria established by board rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 42.018. FREEDOM OF SELECTION. The freedom of an eligible person to select a treating physician, a treatment facility, or a treatment modality is not limited by Section 42.009 if the physician, facility, or modality is approved by the board as required by this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 43.001. SHORT TITLE. This chapter may be cited as the Texas Oral Health Improvement Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.002. LIBERAL CONSTRUCTION. It is the intent of the legislature that this chapter be construed liberally so that eligible individuals may receive appropriate and adequate oral health services in a timely manner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.003. DEFINITIONS. (a) In this chapter: (1) "Dentist" means an individual licensed by the State Board of Dental Examiners to practice dentistry in this state.
(2) "Oral health services" means: (A) preventive or treatment services affecting the structures of the mouth, including the hard and soft tissues such as teeth, jaws, gums, vestibule, tongue, cheeks, lips, floor and roof of the mouth, and adjacent masticatory structures; and
(B) oral health education and promotion activities. (3) "Other benefit" means a benefit, other than a benefit provided under this chapter, to which an individual is entitled for the payment of the costs of oral health treatment services, including benefits available from:
(A) an insurance policy, group oral health plan, or prepaid oral care plan; (B) Title XVIII or Title XIX of the Social Security Act, as amended (42 U.S.C. § 1395 et seq. and 42 U.S.C. § 1396 et seq.); (C) the Veterans Administration; (D) the Civilian Health and Medical Program of the Uniformed Services; (E) workers' compensation or any other compulsory employer's insurance program; (F) a public program created by federal law, state law, or the ordinances or rules of a municipality or other political subdivision of the state; or
(G) a cause of action for the expenses of dental or oral health treatment services, or a settlement or judgment based on the cause of action, if the expenses are related to the need for treatment services provided under this chapter.
(4) "Provider" means a person who, through a contract with the department, furnishes oral health treatment services that are purchased by the department for the purposes of this chapter.
(5) "Support" means to contribute money or services necessary for a person's maintenance, including food, clothing, shelter, transportation, and health care.
(b) The board by rule may define a word or term not defined by Subsection (a) as necessary to administer this chapter. The board may not define a word or term so that the word or term is inconsistent or in conflict with the purposes of this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.004. ORAL HEALTH IMPROVEMENT SERVICES PROGRAM. (a) The oral health improvement services program is in the department to provide comprehensive oral health services to eligible individuals.
(b) The board shall adopt rules to govern the program, to prescribe the type, amount, and duration of oral health services to be provided, and, if necessary to conform to budgetary limitations, to prescribe a system of program priorities regarding the types of services to be furnished, the geographic areas to be covered, or the classes of individuals eligible for services.
(c) Except as limited by Subsection (b), the department shall develop an integrated framework for the equitable provision of oral health services throughout the state or designated geographic areas, using existing public and private health care resources when possible.
(d) The program may consist of all or any combination of the following: (1) treatment services for eligible individuals, including: (A) emergency care for relief of pain and infection, including extractions and basic restorative services to prevent premature loss of teeth; (B) periodontal therapy for the prevention and treatment of periodontal disease; (C) endodontics to maintain aesthetics and occlusion; (D) orthodontic care only in cases of severely handicapping malocclusion; and
(E) oral surgery and prosthetics in cases in which health is impaired; (2) a program of oral disease prevention, including: (A) the fluoridation of community water supplies; (B) fluoride mouth rinse programs in schools; (C) the promotion and implementation of sealants programs; and (D) the development of appropriate means for prevention of oral disease, including the continued use of recognized methods of primary, secondary, and tertiary prevention; (3) oral health education and promotion, including: (A) public health education to promote the prevention of oral disease through self-help methods, including the initiation and expansion of preschool, school age, and adult education programs; (B) organized continuing health education training programs for health care providers; and
(C) preventive health education information for the public; and (4) facilitation of access to oral health services, including: (A) the improvement of the existing oral health services delivery system for the provision of services to low-income residents; (B) outreach activities to inform the public of the type and availability of oral health services to increase the accessibility of oral health care for low-income residents; and
(C) assistance and cooperation in promoting better distribution of dentists and other oral health professionals throughout the state.
(e) The department may provide services only as prescribed by board rules. (f) The services listed in Subsection (d) may be furnished either directly by the department or through a network of approved providers.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.005. ADMINISTRATION. (a) The department shall: (1) administer the program of oral health services established by the board; and
(2) adopt the design and content of all forms necessary for the program. (b) The department may conduct field research, collect data, and prepare statistical and other reports relating to the need for and the availability of oral health services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.006. SERVICE PROVIDERS. (a) The board may adopt substantive and procedural rules relating to:
(1) the selection of dentists, physicians, facilities, and other providers to furnish program services, including criteria for the emergency selection of providers; and
(2) the denial, modification, suspension, or termination of a provider's program participation.
(b) The department shall approve providers to participate in the program according to the criteria, rules, and procedures adopted by the board.
(c) The department may pay only for program services furnished by approved providers, except in an emergency.
(d) The board shall provide a due process hearing procedure for the resolution of conflicts between the department and a provider. Chapter 2001, Government Code, do not apply to conflict resolution procedures adopted under this section.
(e) The department shall render the final administrative decision in a due process hearing to modify, suspend, or terminate the approval of a provider.
(f) The department may not terminate a contract while a due process hearing is pending under this section. The department may withhold payments while the hearing is pending, but shall pay the withheld payments and resume contract payments if the final determination is favorable to the provider.
(g) Subsections (d)-(f) do not apply if a contract: (1) is canceled by the department because of the exhaustion of funds; (2) expires according to its terms; or (3) is canceled because program services are restricted to conform to budgetary limitations as prescribed by Section 43.004(b).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 43.007. INDIVIDUAL REFERRAL AND APPLICATION FOR SERVICES. (a) The board may adopt substantive and procedural rules to govern the application for admission to the program and the receipt of treatment services, including the dental, financial, and other criteria for eligibility to receive treatment services.
(b) An applicant for treatment services must be referred to the program by a person who knows the individual's economic condition, such as a school administrator or school nurse, social worker, municipal or county official, dentist, physician, public health clinic, community health center, hospital, or any other source acceptable to the board.
(c) An applicant for treatment services must complete or cause to be completed an application form prescribed by the department.
(d) The application form must include or be accompanied by: (1) a statement by the individual, or by the person with a legal obligation to support the individual, that the individual or the person is financially unable to pay for all or part of the cost of the necessary treatment services; (2) a statement from the referring person that the treatment services are necessary to prevent or reduce the probability of pain, infection, or disease; and
(3) any other assurances from the applicant or any other documentary evidence required by the board to support the applicant's eligibility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.008. ELIGIBILITY FOR SERVICES. (a) The department shall determine an individual's eligibility for treatment services according to this chapter and the program rules.
(b) An individual is not eligible to receive treatment services provided under this chapter unless:
(1) the individual is a resident of this state; (2) the department has determined that neither the individual nor a person with a legal obligation to support the individual is financially able to pay for all or part of the treatment services provided by this chapter; (3) the individual complies with any other requirements stated in the program rules; and
(4) at least one licensed dentist or licensed physician has certified to the department that the dentist or physician has examined the individual and has found that:
(A) the individual meets the board's dental criteria; and (B) the dentist or physician has reason to expect that the treatment services provided by or through the department will prevent or reduce the probability of the individual's experiencing pain, infection, or disease.
(c) Except as permitted by program rules, the department may not provide treatment services before an individual's eligibility date assigned by the department or authorize payment for treatment services furnished by a provider before that date.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.009. DENIAL, MODIFICATION, SUSPENSION, OR TERMINATION OF SERVICES. (a) The department may, for cause, deny an application for treatment services or modify, suspend, or terminate a recipient's treatment services after notice to the applicant or recipient and the opportunity for a due process hearing.
(b) The board by rule shall provide criteria for action by the department under this section.
(c) Chapter 2001, Government Code, do not apply to the granting, denial, modification, suspension, or termination of treatment services. The department shall conduct hearings in accordance with the board's due process hearing rules.
(d) The department shall render the final administrative decision in a due process hearing to deny, modify, suspend, or terminate the receipt of oral health services.
(e) This section does not apply if oral health services are restricted to conform to budgetary limitations as prescribed by Section 43.004(b).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(66), eff. Sept. 1, 1995.
§ 43.010. FINANCIAL ELIGIBILITY; OTHER BENEFITS. (a) The department shall require an individual receiving treatment services under this chapter or a person with a legal obligation to support the individual to pay for or reimburse the department for that part of the cost of the treatment services that the individual or person is financially able to pay.
(b) An individual is not eligible to receive treatment services under this chapter to the extent that the individual or a person with a legal obligation to support the individual is eligible for some other benefit that would pay for all or part of the treatment services.
(c) When the application is made under this chapter or at any time during eligibility and the receipt of treatment services, the applicant for or recipient of treatment services shall inform the department of any other benefit to which the individual or a person with a legal obligation to support the individual may be entitled.
(d) An individual who has received treatment services that are covered by some other benefit, or a person with a legal obligation to support the individual, shall reimburse the department to the extent of the treatment services provided when the other benefit is received.
(e) The commissioner may waive the enforcement of Subsection (b) as prescribed by board rules in certain individually considered cases in which enforcement will deny treatment services to a class of otherwise eligible individuals because of conflicting federal, state, or local laws or rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.011. RECOVERY OF COSTS. (a) The department may recover the cost of treatment services provided under this chapter from a person who does not pay or reimburse the department as required by this chapter or from any third party who has a legal obligation to pay other benefits and to whom notice of the department's interest has been given.
(b) At the request of the commissioner, the attorney general may bring suit in the appropriate court of Travis County on behalf of the department.
(c) In a judgment in favor of the department, the court may award attorney's fees, court costs, and interest accruing from the date on which the department provides the service to the date on which the department is reimbursed.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.012. FEES. The board may charge fees for the oral health services provided directly by the department or through approved providers in accordance with Subchapter D, Chapter 12.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.013. FUNDS. (a) Subject to limitations or conditions prescribed by the legislature, the board may seek, receive, and spend funds received from any public or private source for the purposes of this chapter.
(b) The department is not required to provide oral health services unless funds are appropriated to the department for that express purpose.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 43.014. CONTRACTS. The department may enter into contracts and agreements necessary to facilitate the efficient and economical provision of oral health services under this chapter, including contracts for the purchase of services, equipment, and supplies from qualified providers.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 44.051. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT. An individual may act as an advocate for survivors of sexual assault if the individual has completed a sexual assault training program certified by the department and:
(1) is employed by a sexual assault program; or (2) provides services through a sexual assault program as a volunteer under the supervision of an advocate.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997.
SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
Without reference to the addition of Subchapter D by Acts 1997, 75th Leg., ch. 775, § 2, Acts 1997, 75th Leg., ch. 784, § 1 redesignated Chapter 44, Health & Safety Code as Chapter 420, Government Code; see Government Code § 420.001 et seq.
§ 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A communication between an advocate and a survivor, or a person claiming to be a survivor, that is made in the course of providing sexual assault advocacy services to the survivor is confidential and may not be disclosed except as provided by this subchapter.
(b) A record of the identity, personal history, or background information of a survivor or information concerning the victimization of a survivor that is created by or provided to an advocate or maintained by a sexual assault program is confidential and may not be disclosed except as provided by this subchapter.
(c) A person who receives information from a confidential communication or record as described by this subchapter may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was obtained.
(d) This subchapter governs a confidential communication or record concerning a survivor regardless of when the survivor received the services of an advocate or sexual assault program.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997.
Without reference to the addition of Subchapter D by Acts 1997, 75th Leg., ch. 775, § 2, Acts 1997, 75th Leg., ch. 784, § 1 redesignated Chapter 44, Health & Safety Code as Chapter 420, Government Code; see Government Code § 420.001 et seq.
§ 44.072. EXCEPTIONS. (a) A communication or record that is confidential under this subchapter may be disclosed in court or in an administrative proceeding if:
(1) the proceeding is brought by the survivor against an advocate or a sexual assault program or is a criminal proceeding or a certification revocation proceeding in which disclosure is relevant to the claims or defense of the advocate or sexual assault program; or
(2) the survivor or a person authorized to act on behalf of the survivor consents in writing to the release of the confidential information as provided by Section 44.073.
(b) A communication or record that is confidential under this subchapter may be disclosed only to:
(1) medical or law enforcement personnel if the advocate determines that there is a probability of imminent physical danger to any person for whom the communication or record is relevant or if there is a probability of immediate mental or emotional injury to the survivor;
(2) a governmental agency if the disclosure is required or authorized by law;
(3) a qualified person to the extent necessary for a management audit, financial audit, program evaluation, or research, except that a report of the research, audit, or evaluation may not directly or indirectly identify a survivor;
(4) a person who has the written consent of the survivor or of a person authorized to act on the survivor's behalf as provided by Section 44.073; or
(5) an advocate or a person under the supervision of a counseling supervisor who is participating in the evaluation or counseling of or advocacy for the survivor.
(c) A communication or record that is confidential under this subchapter may not be disclosed to a parent or legal guardian of a survivor who is a minor if an advocate or a sexual assault program knows or has reason to believe that the parent or legal guardian of the survivor is a suspect in the sexual assault of the survivor.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997.
Without reference to the addition of Subchapter D by Acts 1997, 75th Leg., ch. 775, § 2, Acts 1997, 75th Leg., ch. 784, § 1 redesignated Chapter 44, Health & Safety Code as Chapter 420, Government Code; see Government Code § 420.001 et seq.
§ 44.073. CONSENT. (a) Consent for the release of confidential information must be in writing and signed by the survivor, a parent or legal guardian if the survivor is a minor, a legal guardian if the survivor has been adjudicated incompetent to manage the survivor's personal affairs, an attorney ad litem appointed for the survivor, or a personal representative if the survivor is deceased. The written consent must specify:
(1) the information or records covered by the release; (2) the reason or purpose for the release; and (3) the person to whom the information is to be released. (b) A survivor or other person authorized to consent may withdraw consent to the release of information by submitting a written notice of withdrawal to the person or program to which consent was provided. Withdrawal of consent does not affect information disclosed before the date written notice of the withdrawal was received.
(c) A person who receives information made confidential by this chapter may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person obtained the information.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997.
Without reference to the addition of Subchapter D by Acts 1997, 75th Leg., ch. 775, § 2, Acts 1997, 75th Leg., ch. 784, § 1 redesignated Chapter 44, Health & Safety Code as Chapter 420, Government Code; see Government Code § 420.001 et seq.
§ 44.074. CRIMINAL SUBPOENA. Notwithstanding any other provision of this chapter, a person shall disclose a communication or record that is confidential under this chapter for use in a criminal investigation or proceeding in response to a subpoena issued in accordance with law.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997.
§ 44.075. OFFENSE. A person commits an offense if the person intentionally or knowingly discloses a communication or record that is confidential under this chapter, except as provided by this chapter. An offense under this section is a Class C misdemeanor.
Added by Acts 1997, 75th Leg., ch. 775, § 2, eff. Sept. 1, 1997. § 45.001. DEFINITION. In this chapter, "child passenger safety seat system" has the meaning assigned by Section 545.412, Transportation Code.
Added by Acts 1993, 73rd Leg., ch. 311, § 1, eff. Aug. 30, 1993. Amended by Acts 1997, 75th Leg., ch. 165, § 30.203, eff. Sept. 1, 1997.
§ 45.002. CHILD PASSENGER SAFETY SEAT SYSTEM PROGRAM. (a) The department may establish a program to distribute child passenger safety seat systems to indigent persons in this state.
(b) A program established under this section may distribute new or used child passenger safety seat systems that have been donated to the department for distribution.
Added by Acts 1993, 73rd Leg., ch. 311, § 1, eff. Aug. 30, 1993.
§ 45.003. RULES. The board may adopt rules governing eligibility for a child passenger safety seat system from the program established under Section 45.002.
Added by Acts 1993, 73rd Leg., ch. 311, § 1, eff. Aug. 30, 1993. § 46.001. DEFINITIONS. In this chapter: (1) "Tertiary care facility" means a: (A) primary teaching hospital of a medical school; (B) level I trauma center; (C) level II trauma center; or (D) level III trauma center. (2) "Tertiary medical services" includes, but is not limited to, services provided by state-designated trauma centers, burn center treatment, neonatology level III unit services, pediatric surgery, trauma surgery, neurosurgery, cardiothoracic and vascular surgery, organ transplant, services provided for a life-threatening dermatologic illness, services provided to a person with a high-risk pregnancy or cancer, and radiation oncology.
(3) "Stabilization services" means services provided by a tertiary care facility or a level IV designated trauma center that are necessary to assure, within reasonable medical probability, that no material deterioration of a patient's medical condition is likely to result from or occur during the transfer of the patient to a tertiary care facility.
(4) "Unreimbursed stabilization services" means stabilization services for which a tertiary care facility or level IV designated trauma facility has not received full payment from any public or private source.
(5) "Unreimbursed tertiary medical services" means tertiary care medical services for which a tertiary care facility has not received full payment from any public or private source.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999.
§ 46.002. RULES. (a) The board may adopt rules to implement a system that encourages hospitals to provide tertiary medical services and stabilization services.
(b) The rules must address: (1) coordination of tertiary medical services and stabilization services among health care facilities in the delivery area;
(2) pre-hospital care management guidelines for triage, transfer, and transportation of patients and periodic evaluation of tertiary care facilities' and level IV trauma facilities' compliance with the guidelines and the trauma facility rules, as appropriate;
(3) requirements for data collection, including patient outcomes; (4) assurances that tertiary care facilities will not refuse to accept the transfer of a patient solely because of the person's inability to pay for services or because of the person's age, sex, race, religion, or national origin; and
(5) enforcement of the rules.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999.
§ 46.003. TERTIARY CARE ACCOUNT. (a) The tertiary care account is an account in the state treasury. Except as by Subsection (e), money in the account may be appropriated only to the department for the purposes of this chapter.
(b) The account is composed of money appropriated to the account and any other funds required to be put in the account.
(c) The department may seek and accept gifts, grants, and donations from any public or private entity on behalf of the account.
(d) Section 403.095, Government Code, does not apply to the account. (e) For each fiscal year, five percent of the total amount in the account shall be held in reserve and may be used only for reimbursement of unpaid tertiary medical services and stabilization services provided as a result of extraordinary emergencies occurring during that year. Of the amount remaining:
(1) not more than five percent may be used for the costs of administering the account;
(2) five percent shall be allocated for the payment of state assistance under Chapter 61; and
(3) the remaining amount shall be allocated as provided by Subsection (f). (f) Except as provided by Subsection (e), the account shall be allocated for payment to tertiary care facilities and level IV trauma centers for unreimbursed tertiary medical services and stabilization services, as provided for in Sections 46.005 and 46.006.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1128, § 5, eff. June 15, 2001.
§ 46.004. COLLECTION OF INFORMATION. (a) Each tertiary care facility or level IV trauma facility that seeks payment under this chapter shall submit to the department, in the manner and at the time required by the department, information that relates to the unreimbursed tertiary medical services or stabilization services provided to persons who reside outside the service area of the county, public hospital, or hospital district that is responsible for indigent health care under Chapter 61 in the area in which the tertiary care facility or level IV trauma facility is located.
(b) The board shall adopt rules governing the collection of the information under Subsection (a).
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999.
§ 46.005. CERTIFICATION TO COMPTROLLER OF UNREIMBURSED TERTIARY MEDICAL SERVICES. (a) The department shall certify to the comptroller for each tertiary care facility the cost of unreimbursed tertiary medical services provided to persons who reside outside the service area of the county, public hospital, or hospital district that is responsible for indigent health care under Chapter 61 in the area in which the tertiary care facility is located.
(b) In each fiscal year the department shall use at least 86 percent of the appropriated money in the tertiary care account to compensate tertiary care facilities for unreimbursed tertiary medical services.
(c) Each year the department shall make, for a facility that operated as a tertiary care facility during the previous year, an initial certification to the comptroller under Subsection (a) in an amount that equals 80 percent of the amount certified under this section for the facility in the previous year. The department shall make a subsequent certification of the cost of additional unreimbursed tertiary medical services provided by the facility on receipt from the facility of the information required to be submitted under Section 46.004.
(d) Except as provided by Subsection (e), each year the comptroller shall pay a tertiary care facility the certified amount determined under Subsection (a) from the funds specified under Section 46.003(f).
Text of subsec. (e) as added by Acts 1999, 76th Leg., ch. 969, § 1
(e) If in any year the total cost of unreimbursed tertiary medical services certified under Subsection (a) for all tertiary care facilities exceeds the amount available for payment to the facilities under Section 46.003(f), the department shall allocate the amount available under Section 46.003(f) to each facility based on the percentages computed by dividing the cost of the facility's unreimbursed services by the total cost of all facilities' unreimbursed services. The comptroller shall pay each tertiary care facility based on the allocation made under this subsection.
Text of subsec. (e) as added by Acts 1999, 76th Leg., ch. 1377, § 2.01
(e) If in any year the total cost of unreimbursed tertiary medical services certified under Subsection (a) for all tertiary care facilities exceeds the amount available for payment to all facilities under Section 46.003(f), less the amount allocated for stabilization services under Section 46.006(b), the department shall allocate the amount available under Section 46.003(f) to each facility based on the percentages computed by dividing the cost of the facility's unreimbursed tertiary medical services by the total cost of all facilities' unreimbursed tertiary medical services. The comptroller shall pay each tertiary care facility based on the allocation made under this subsection.
(f) For purposes of this section and Section 46.007, the cost of each service provided by a tertiary care facility is the average amount payable under Medicare reimbursement policies for that service.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999.
§ 46.006. CERTIFICATION TO COMPTROLLER OF UNREIMBURSED STABILIZATION SERVICES. (a) The department shall certify to the comptroller for each tertiary care facility or level IV trauma facility the cost of unreimbursed stabilization services provided to persons who reside outside the service area of the county, public hospital, or hospital district that is responsible for indigent health care under Chapter 61 in the area in which the tertiary care facility or level IV trauma facility is located.
(b) In each fiscal year the department shall use no more than four percent of the appropriated money in the tertiary care account to compensate tertiary care facilities and level IV trauma facilities for unreimbursed stabilization services.
(c) Each year the department shall make, for a facility that operated as a tertiary care facility or level IV trauma facility during the previous year, an initial certification to the comptroller under Subsection (a) in an amount that equals 80 percent of the amount certified under this section for the facility in the previous year. The department shall make a subsequent certification of the cost of additional unreimbursed stabilization services provided by the facility on receipt from the facility of the information required to be submitted under Section 46.004.
(d) Except as provided by Subsection (e), each year the comptroller shall pay a tertiary care facility or level IV trauma facility the certified amount determined under Subsection (a) from the funds specified under Section 46.003(f).
Text of subsec. (e) as added by Acts 1999, 76th Leg., ch. 969, § 1
(e) If in any year the total cost of unreimbursed stabilization services certified under Subsection (a) for all tertiary care facilities or level IV trauma facilities exceeds the amount available for payment to the facilities under Section 46.003(f), the department shall allocate the amount available under Section 46.003(f) to each facility based on the percentages computed by dividing the cost of the facility's unreimbursed stabilization services by the total cost of all facilities' unreimbursed stabilization services. The comptroller shall pay each tertiary care facility or level IV trauma facility based on the allocation made under this subsection.
Text of subsec. (e) as added by Acts 1999, 76th Leg., ch. 1377, § 2.01
(e) If in any year the total cost of unreimbursed stabilization services certified under Subsection (a) for all tertiary care facilities or level IV trauma facilities exceeds the amount available for payment to the facilities under Section 46.003(f), as limited by Subsection (b), the department shall allocate the amount available to each facility based on the percentages computed by dividing the cost of the facility's unreimbursed stabilization services by the total cost of all facilities' unreimbursed stabilization services. The comptroller shall pay each tertiary care facility or level IV trauma facility based on the allocation made under this subsection.
(f) For purposes of this section and Section 46.007, the cost of each service provided by a tertiary care facility or level IV trauma facility is the average amount payable under Medicare reimbursement policies for that service.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999.
§ 46.007. CERTIFICATION OF EMERGENCIES. (a) For purposes of reimbursing extraordinary emergencies under this chapter, the department shall certify an extraordinary emergency:
(1) if the governor issues an executive order or a proclamation under Chapter 418, Government Code;
(2) if a disaster is declared by the president of the United States under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. Section 5121 et seq.); or
(3) for another similar disaster the department finds has resulted in an extraordinary cost to a tertiary care facility or level IV trauma facility.
(b) If an extraordinary emergency is certified under Subsection (a), the department shall certify to the comptroller the amount of unreimbursed tertiary medical services or stabilization services or transportation services incurred by a tertiary care facility or level IV trauma facility, as appropriate, during the emergency.
(c) Except as provided by Subsection (d), each year the comptroller shall pay a tertiary care facility or level IV trauma facility the certified amount determined under Subsection (b) from the funds specified under Section 46.003(e).
Text of subsec. (d) as added by Acts 1999, 76th Leg., ch. 969, § 1
(d) If in any year the total cost of unreimbursed tertiary medical services or stabilization services certified under Subsection (b) for all facilities exceeds the amount available for payment to the facilities under Section 46.003(e), the department shall allocate the amount available under Section 46.003(e) to each facility based on the percentages computed by dividing the cost of the facility's or provider's unreimbursed services by the total cost of all facilities' unreimbursed services. The comptroller shall pay each tertiary care facility or level IV trauma facility based on the allocation made under this subsection.
Text of subsec. (d) as added by Acts 1999, 76th Leg., ch. 1377, § 2.01
(d) If in any year the total cost of unreimbursed tertiary medical services or stabilization services certified under Subsection (b) for all facilities exceeds the amount available for payment to the facilities under Section 46.003(e), the department shall allocate the amount available under Section 46.003(e) to each facility based on the percentages computed by dividing the cost of the facility's unreimbursed services by the total cost of all facilities' unreimbursed services. The comptroller shall pay each tertiary care facility or level IV trauma facility based on the allocation made under this subsection.
Added by Acts 1999, 76th Leg., ch. 969, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1377, § 2.01, eff. Sept. 1, 1999. § 47.001. DEFINITIONS. In this chapter: (1) "Birth admission" means the time after birth that a newborn remains in the birthing facility before the newborn is discharged.
(2) "Birthing facility" means: (A) a hospital licensed under Chapter 241 that offers obstetrical services and is located in a county with a population of more than 50,000; or
(B) a birthing center licensed under Chapter 244 that is located in a county with a population of more than 50,000 and that has 100 or more births per year.
(3) "Health care provider" means a registered nurse recognized as an advanced practice nurse by the Board of Nurse Examiners or a physician assistant licensed by the Texas State Board of Physician Assistant Examiners.
(4) "Hearing loss" means a hearing loss of 30 dB HL or greater in the frequency region important for speech recognition and comprehension in one or both ears, approximately 500 through 4,000 Hz. As technological advances permit the detection of less severe hearing loss, the department may modify this definition by rule.
(5) "Infant" means a child who is at least 30 days but who is younger than 24 months old.
(6) "Intervention or follow-up care" means the early intervention services described in Part C, Individuals with Disabilities Education Act (20 U.S.C. Sections 1431-1445), as amended by Pub. L. No. 105-17.
(7) "Newborn" means a child younger than 30 days old. (8) "Parent" means a natural parent, stepparent, adoptive parent, legal guardian, or other legal custodian of a child.
(9) "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners.
(10) "Program" means a newborn hearing screening, tracking, and intervention program certified by the department under this chapter.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.002. APPLICABILITY OF CHAPTER. This chapter does not apply to a facility operated by a midwife as defined by Section 203.002, Occupations Code.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.770, eff. Sept. 1, 2001.
§ 47.003. NEWBORN HEARING SCREENING, TRACKING, AND INTERVENTION PROGRAM. (a) A birthing facility, through a program certified by the department under Section 47.004, shall offer the parents of a newborn a hearing screening for the newborn for the identification of hearing loss. The screening shall be offered during the birth admission, and the parents shall be informed that information may be provided to the department upon their written consent.
(b) The department or the department's designee shall approve program protocols.
(c) The department may maintain data and information on each newborn who receives services under a program.
(d) The department shall ensure that intervention is available to families for a newborn identified as having hearing loss and that the intervention is managed by state programs operating under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.).
(e) The department shall ensure that the intervention described by Subsection (d) is available for a newborn identified as having hearing loss through the time the child is an infant.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.004. CERTIFICATION OF SCREENING PROGRAMS. (a) The department or the department's designee shall establish certification criteria for implementing a program.
(b) In order to be certified, the program must: (1) provide hearing screening using equipment recommended by the department;
(2) use appropriate staff to provide the screening; (3) maintain and report data electronically as required by the department; (4) distribute family, health care provider, and physician educational materials standardized by the department; and
(5) provide information, as recommended by the department, to the parents on follow-up services for newborns and infants with abnormal screening results.
(c) The department may certify a program that meets and maintains the certification criteria.
(d) The department may renew the certification of a program on a periodic basis as established by board rule in order to ensure quality services to newborns and families.
(e) A fee may not be charged to certify or recertify a program.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.005. INFORMATION CONCERNING SCREENING RESULTS AND FOLLOW-UP CARE. (a) A birthing facility that operates a program shall distribute to the parents of each newborn who is screened educational materials that are standardized by the department regarding screening results and follow-up care.
(b) A birthing facility that operates a program shall report screening results to the parents, the newborn's attending physician or health care provider, and the department.
(c) Appropriate and necessary care for the infant who needs follow-up care should be directed and coordinated by the infant's physician or health care provider, with support from appropriate ancillary services.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.006. TECHNICAL ASSISTANCE BY DEPARTMENT. The department may consult with a birthing facility and provide to the facility technical assistance associated with the implementation of a certified program.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.007. INFORMATION MANAGEMENT, REPORTING, AND TRACKING SYSTEM. (a) The department shall provide each birthing facility that provides newborn hearing screening under the state's medical assistance program provided under Chapter 32, Human Resources Code, with the appropriate information management, reporting, and tracking software for the program. The information management, reporting, and tracking system must be capable of providing the department with information and data necessary to plan, monitor, and evaluate the program, including the program's screening, follow-up, diagnostic, and intervention components.
(b) A qualified hearing screening provider, hospital, audiologist, or intervention specialist may access the information management, reporting, and tracking system to provide information, where available, to the department, including information relating to:
(1) infants who receive follow-up care; (2) infants identified with hearing loss; (3) infants who are referred for intervention services; and (4) case level information necessary to report required statistics to the Maternal and Child Health Bureau on an annual basis.
(c) The department shall ensure that the written consent of a parent is obtained before any information individually identifying the newborn or infant is released through the information management, reporting, and tracking system.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999.
§ 47.008. CONFIDENTIALITY AND GENERAL ACCESS TO DATA. (a) The information management, reporting, and tracking system provided in accordance with this chapter must meet confidentiality requirements in accordance with required state and federal privacy guidelines.
(b) Data obtained through the information management, reporting, and tracking system under this chapter are for the confidential use of the department, the department's designee, and the persons or public or private entities that the department determines are necessary to carry out the functions of the tracking system.
(c) The department by rule shall develop guidelines to protect the confidentiality of patients in accordance with Chapter 159, Occupations Code, and require the written consent of a parent or guardian of a patient before any individually identifying information is provided to the department as set out in this chapter. The department shall permit a parent or guardian at any time to withdraw information provided to the department under this chapter.
(d) Statistical or aggregated information that is about activities conducted under this chapter and that could not be used to individually identify a newborn, infant, or patient or a parent or guardian of a newborn, infant, or patient is not confidential.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.771, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 880, § 1, eff. June 20, 2003.
§ 47.009. IMMUNITY FROM LIABILITY. A birthing facility, a clinical laboratory, an audiologist, a health care provider, a physician, a registered nurse, or any other officer or employee of a birthing facility, a laboratory, a physician, or an audiologist is not criminally or civilly liable for furnishing information in good faith to the department or its designee as required by this chapter. This section does not apply to information gathered and furnished after a parent of a newborn or infant declined screening offered through a program.
Added by Acts 1999, 76th Leg., ch. 1347, § 1, eff. Sept. 1, 1999. § 48.001. DEFINITIONS. In this chapter: (1) "Compensation" includes receiving payment or receiving reimbursement for expenses.
(2) "Promotora" or "community health worker" means a person who, with or without compensation, provides a liaison between health care providers and patients through activities that may include activities such as assisting in case conferences, providing patient education, making referrals to health and social services, conducting needs assessments, distributing surveys to identify barriers to health care delivery, making home visits, and providing bilingual language services.
Added by Acts 1999, 76th Leg., ch. 857, § 2.01, eff. Sept. 1, 1999. Renumbered from § 46.001 and amended by Acts 2001, 77th Leg., ch. 946, § 1, eff. Sept. 1, 2001 and Acts 2001, 77th Leg., ch. 1420, § 21.001(72), eff. Sept. 1, 2001.
§ 48.002. PROMOTORA AND COMMUNITY HEALTH WORKER TRAINING PROGRAM. (a) The department shall establish and operate a program designed to train and educate persons who act as promotoras or community health workers. In establishing the training program, the department, to the extent possible, shall consider the report and any findings of and implement any applicable recommendations of the Promotora Program Development Committee.
(b) Participation in a training and education program established under this section is voluntary for a promotora or community health worker who provides services without receiving any compensation and mandatory for a promotora or community health worker who provides services for compensation. The board may adopt rules to exempt a promotora or community health worker from mandatory training who has served for three or more years or who has 1,000 or more hours of experience.
Added by Acts 1999, 76th Leg., ch. 857, § 2.01, eff. Sept. 1, 1999. Renumbered from § 46.002 and amended by Acts 2001, 77th Leg., ch. 946, § 1, eff. Sept. 1, 2001 and Acts 2001, 77th Leg., ch. 1420, § 21.001(72), eff. Sept. 1, 2001.
§ 48.003. CERTIFICATION PROGRAM FOR PROMOTORAS AND COMMUNITY HEALTH WORKERS. (a) The department shall establish and operate a certification program for persons who act as promotoras or community health workers. In establishing the program, the board shall adopt rules that provide minimum standards and guidelines, including participation in the training and education program under Section 48.002, for issuance of a certificate to a person under this section. In adopting the minimum standards and guidelines, the board shall consider the report and any findings of and adopt any applicable recommendations of the Promotora Program Development Committee.
(b) Receipt of a certificate issued under this section may not be a requirement for a person to act as a promotora or community health worker without receiving any compensation and is a requirement for a person to act as a promotora or community health worker for compensation.
(c) The Health and Human Services Commission shall require health and human services agencies to use certified promotoras to the extent possible in health outreach and education programs for recipients of medical assistance under Chapter 32, Human Resources Code.
Added by Acts 1999, 76th Leg., ch. 857, § 2.01, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 729, § 1, eff. Sept. 1, 2001. Renumbered from § 46.003 and amended by Acts 2001, 77th Leg., ch. 946, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, § 21.001(72) and 21.002(8), eff. Sept. 1, 2001. § 49.001. DEFINITIONS. In this chapter: (1) "Commissioner" means the commissioner of state health services. (2) "Department" means the Department of State Health Services. (3) "Registry program" means the Donor Education, Awareness, and Registry Program of Texas.
Added by Acts 2005, 79th Leg., ch. 1186, § 4, eff. June 18, 2005.
§ 49.002. ESTABLISHMENT OF PROGRAM. (a) In consultation with the Department of Public Safety and organ procurement organizations, the department shall establish the Donor Education, Awareness, and Registry Program of Texas.
(b) The department shall enter into an agreement with an organization selected by the commissioner under a competitive proposal process for the establishment and maintenance of a statewide Internet-based registry of organ, tissue, and eye donors. Contingent on the continued availability of appropriations under Subsection (h), the term of the initial agreement is two years and may be renewed for two-year terms thereafter unless terminated in a written notice to the other party by the department or organization not later than the 180th day before the last day of a term.
(c) The Department of Public Safety at least monthly shall electronically transfer to the organization selected by the commissioner as provided by Subsection (b) the name, date of birth, driver's license number, most recent address, and any other relevant information in the possession of the Department of Public Safety for any person who indicates on the person's driver's license application under Section 521.401, Transportation Code, that the person would like to make an anatomical gift and consents in writing to the release of the information by the Department of Public Safety to the organization for inclusion in the statewide Internet-based registry of organ, tissue, and eye donors.
(d) The contract between the department and the organization selected by the commissioner as provided by Subsection (b) must require the organization to:
(1) make information obtained from the Department of Public Safety under Subsection (c) available to qualified organ, tissue, and eye bank organizations;
(2) allow potential donors to submit information in writing directly to the organization for inclusion in the statewide Internet-based registry of organ, tissue, and eye donors;
(3) maintain the statewide Internet-based registry of organ, tissue, and eye donors in a manner that allows qualified organ, tissue, and eye bank organizations to immediately access organ, tissue, and eye donation information 24 hours a day, seven days a week, through electronic and telephonic methods; and
(4) protect the confidentiality and privacy of the individuals providing information to the statewide Internet-based registry, regardless of the manner in which the information is provided.
(e) Except as otherwise provided by Subsection (d)(3) or this subsection, the Department of Public Safety, the organization selected by the commissioner under Subsection (b), or a qualified organ, tissue, and eye bank organization may not sell, rent, or otherwise share any information provided to the registry. A qualified organ, tissue, and eye bank organization may share any information provided to the registry with an organ procurement organization or a health care provider or facility providing medical care to a potential donor as necessary to properly identify an individual at the time of donation.
(f) The Department of Public Safety, the organization selected by the commissioner under Subsection (b), or the qualified organ, tissue, and eye bank organizations may not use any demographic or specific data provided to the registry for any fund-raising activities. Data may only be transmitted from the selected organization to qualified organ, tissue, and eye bank organizations through electronic and telephonic methods using secure, encrypted technology to preserve the integrity of the data and the privacy of the individuals providing information.
(g) In each office authorized to issue driver's licenses or personal identification certificates, the Department of Public Safety shall make available educational materials developed by the Texas Organ, Tissue, and Eye Donor Council established under Chapter 113.
(h) The Department of Public Safety shall remit to the comptroller the money collected under Sections 521.421(g) and 521.422(c), Transportation Code, as provided by those subsections. A county assessor-collector shall remit to the comptroller any money collected under Section 502.1745, Transportation Code, as provided by that section. Money remitted to the comptroller in accordance with this subsection that is appropriated to the department must be spent in accordance with the priorities established by the department in consultation with the Texas Organ, Tissue, and Eye Donor Council to pay the costs of:
(1) maintaining, operating, and updating the statewide Internet-based donor registry and establishing procedures for an individual to be added to the registry; and
(2) designing and distributing education materials for prospective donors as required under this section.
(i) Any additional money over the amount necessary to accomplish the purposes of Subsections (h)(1) and (2) may be used by the department to provide education under this chapter or may be awarded using a competitive grant process to organizations to conduct organ, eye, and tissue donation education activities in this state. A member of the Texas Organ, Tissue, and Eye Donor Council may not receive a grant under this subsection.
(j) The department shall require the organization selected under Subsection (b) to submit an annual written report to the department that includes:
(1) the number of donors listed on the registry; (2) changes in the number of donors listed on the registry; and (3) the demographic characteristics of listed donors, to the extent the characteristics may be determined from information provided on donor registry forms submitted by donors to the organization.
(k) To the extent funds are available and as part of the registry program, the department shall educate residents about anatomical gifts. The program shall include information about:
(1) the laws governing anatomical gifts, including Subchapter Q, Chapter 521, Transportation Code, and Chapter 692;
(2) the procedures for becoming an organ, eye, or tissue donor or donee; and
(3) the benefits of organ, eye, or tissue donation. (l) In developing the program, the department in consultation with the Texas Organ, Tissue, and Eye Donor Council shall solicit broad-based input reflecting recommendations of all interested groups, including representatives of patients, providers, ethnic groups, and geographic regions.
(m) In consultation with the Texas Organ, Tissue, and Eye Donor Council, the department may implement a training program for all appropriate Department of Public Safety and Texas Department of Transportation employees on the benefits of organ, tissue, and eye donation and the procedures for individuals to be added to the statewide Internet-based registry of organ, tissue, and eye donors. The department shall implement the training program before the date that the statewide Internet-based registry is operational and shall conduct the training on an ongoing basis for new employees.
Added by Acts 1999, 76th Leg., ch. 1516, § 1, eff. Sept. 1, 1999. Renumbered from § 46.001 by Acts 2001, 77th Leg., ch. 1420, § 21.001(73), eff. Sept. 1, 2001. Renumbered and amended from V.T.C.A., Health and Safety Code § 49.001 by Acts 2005, 79th Leg., ch. 1186, § 4, eff. June 18, 2005.
§ 49.003. EDUCATION FOR HEALTH CARE PROVIDERS AND ATTORNEYS. (a) The department shall develop a program to educate health care providers and attorneys in this state regarding anatomical gifts.
(b) The department through the program shall encourage attorneys to provide organ donation information to clients seeking legal advice for end-of-life decisions.
(c) The department shall encourage medical schools and nursing schools in this state to include mandatory organ donation education in the schools' curriculums.
(d) The department shall encourage medical schools in this state to require a physician in a neurology or neurosurgery residency program to complete an advanced course in organ donation education.
Added by Acts 2003, 78th Leg., ch. 801, § 1, eff. Sept. 1, 2003. Renumbered from V.T.C.A., Health & Safety Code § 49.002 and amended by Acts 2005, 79th Leg., ch. 1186, § 4, eff. June 18, 2005. § 62.001. OBJECTIVE OF THE STATE CHILD HEALTH PLAN. The principal objective of the state child health plan is to provide primary and preventative health care to low-income, uninsured children of this state, including children with special health care needs, who are not served by or eligible for other state assisted health insurance programs.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.002. DEFINITIONS. In this chapter: (1) "Commission" means the Health and Human Services Commission. (2) "Commissioner" means the commissioner of health and human services. (3) "Health plan provider" means an insurance company, health maintenance organization, or other entity that provides health benefits coverage under the child health plan program. The term includes a primary care case management provider network.
(4) "Gross family income" means the total amount of income established without consideration of any reduction for offsets that may be available to the family under any other program.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.45, eff. Sept. 1, 2003.
§ 62.003. NOT AN ENTITLEMENT; TERMINATION OF PROGRAM. (a) This chapter does not establish an entitlement to assistance in obtaining health benefits for a child.
(b) The program established under this chapter terminates at the time that federal funding terminates under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, unless a successor program providing federal funding for a state-designed child health plan program is created.
(c) Unless the legislature authorizes the expenditure of other revenue for the program established under this chapter, the program terminates on the date that money obtained by the state as a result of the Comprehensive Settlement Agreement and Release filed in the case styled The State of Texas v. The American Tobacco Co., et al., No. 5-96CV-91, in the United States District Court, Eastern District of Texas, is no longer available to provide state funding for the program.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.004. FEDERAL LAW AND REGULATIONS. The commissioner shall monitor federal legislation affecting Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.) and changes to the federal regulations implementing that law. If the commissioner determines that a change to Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.) or the federal regulations implementing that law conflicts with this chapter, the commissioner shall report the changes to the governor, lieutenant governor, and speaker of the house of representatives, with recommendations for legislation necessary to implement the federal law or regulations, seek a waiver, or withdraw from participation.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
SUBCHAPTER B. ADMINISTRATION OF CHILD HEALTH PLAN PROGRAM
§ 62.051. DUTIES OF COMMISSION. (a) The commission shall develop a state-designed child health plan program to obtain health benefits coverage for children in low-income families. The commission shall ensure that the child health plan program is designed and administered in a manner that qualifies for federal funding under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any other applicable law or regulations.
(b) The commission is the agency responsible for making policy for the child health plan program, including policy related to covered benefits provided under the child health plan. The commission may not delegate this duty to another agency or entity.
(c) The commission shall oversee the implementation of the child health plan program and coordinate the activities of each agency necessary to the implementation of the program, including the Texas Department of Health, Texas Department of Human Services, and Texas Department of Insurance.
(d) The commission shall adopt rules as necessary to implement this chapter. The commission may require the Texas Department of Health, the Texas Department of Human Services, or any other health and human services agency to adopt, with the approval of the commission, any rules that may be necessary to implement the program. With the consent of another agency, including the Texas Department of Insurance, the commission may delegate to that agency the authority to adopt, with the approval of the commission, any rules that may be necessary to implement the program.
(e) The commission shall conduct a review of each entity that enters into a contract under Section 62.055 or Section 62.155, to ensure that the entity is available, prepared, and able to fulfill the entity's obligations under the contract in compliance with the contract, this chapter, and rules adopted under this chapter.
(f) The commission shall ensure that the amounts spent for administration of the child health plan program do not exceed any limit on those expenditures imposed by federal law.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.052. DUTIES OF TEXAS DEPARTMENT OF HEALTH. (a) The commission may direct the Texas Department of Health to:
(1) implement contracts with health plan providers under Section 62.155; (2) monitor the health plan providers, through reporting requirements and other means, to ensure performance under the contracts and quality delivery of services;
(3) monitor the quality of services delivered to enrollees through outcome measurements including:
(A) rate of hospitalization for ambulatory sensitive conditions, including asthma, diabetes, epilepsy, dehydration, gastroenteritis, pneumonia, and UTI/kidney infection;
(B) rate of hospitalization for injuries; (C) percent of enrolled adolescents reporting risky health behavior such as injuries, tobacco use, alcohol/drug use, dietary behavior, physical activity, or other health related behaviors; and
(D) percent of adolescents reporting attempted suicide; and (4) provide payment under the contracts to the health plan providers. (b) The commission, or the Texas Department of Health under the direction of and in consultation with the commission, shall adopt rules as necessary to implement this section.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.053. DUTIES OF TEXAS DEPARTMENT OF HUMAN SERVICES. (a) Under the direction of the commission, the Texas Department of Human Services may:
(1) accept applications for coverage under the child health plan and implement the child health plan program eligibility screening and enrollment procedures;
(2) resolve grievances relating to eligibility determinations; and (3) coordinate the child health plan program with the Medicaid program. (b) If the commission contracts with a third party administrator under Section 62.055, the commission may direct the Texas Department of Human Services to:
(1) implement the contract; (2) monitor the third party administrator, through reporting requirements and other means, to ensure performance under the contract and quality delivery of services; and
(3) provide payment under the contract to the third party administrator. (c) The commission, or the Texas Department of Human Services under the direction of and in consultation with the commission, shall adopt rules as necessary to implement this section.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.054. DUTIES OF TEXAS DEPARTMENT OF INSURANCE. (a) At the request of the commission, the Texas Department of Insurance shall provide any necessary assistance with the development of the child health plan. The department shall monitor the quality of the services provided by health plan providers and resolve grievances relating to the health plan providers.
(b) The commission and the Texas Department of Insurance may adopt a memorandum of understanding that addresses the responsibilities of each agency in developing the plan.
(c) The Texas Department of Insurance, in consultation with the commission, shall adopt rules as necessary to implement this section.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.055. CONTRACTS FOR IMPLEMENTATION OF CHILD HEALTH PLAN. (a) It is the intent of the legislature that the commission maximize the use of private resources in administering the child health plan created under this chapter. In administering the child health plan, the commission may contract with a third party administrator to provide enrollment and related services under the state child health plan.
(b), (c) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.156(a)(1). (d) A third party administrator may perform tasks under the contract that would otherwise be performed by the Texas Department of Health or Texas Department of Human Services under this chapter.
(e) The commission shall: (1) retain all policymaking authority over the state child health plan; (2) procure all contracts with a third party administrator through a competitive procurement process in compliance with all applicable federal and state laws or regulations; and
(3) ensure that all contracts with child health plan providers under Section 62.155 are procured through a competitive procurement process in compliance with all applicable federal and state laws or regulations.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.43, 2.156(a)(1), eff. Sept. 1, 2003.
§ 62.058. FRAUD PREVENTION. The commission shall develop and implement rules for the prevention and detection of fraud in the child health plan program.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.0582. THIRD-PARTY BILLING VENDORS.
Text of section effective January 1, 2006
(a) A third-party billing vendor may not submit a claim with the commission for payment on behalf of a health plan provider under the program unless the vendor has entered into a contract with the commission authorizing that activity.
(b) To the extent practical, the contract shall contain provisions comparable to the provisions contained in contracts between the commission and health plan providers, with an emphasis on provisions designed to prevent fraud or abuse under the program. At a minimum, the contract must require the third-party billing vendor to:
(1) provide documentation of the vendor's authority to bill on behalf of each provider for whom the vendor submits claims;
(2) submit a claim in a manner that permits the commission to identify and verify the vendor, any computer or telephone line used in submitting the claim, any relevant user password used in submitting the claim, and any provider number referenced in the claim; and
(3) subject to any confidentiality requirements imposed by federal law, provide the commission, the office of the attorney general, or authorized representatives with:
(A) access to any records maintained by the vendor, including original records and records maintained by the vendor on behalf of a provider, relevant to an audit or investigation of the vendor's services or another function of the commission or office of attorney general relating to the vendor; and
(B) if requested, copies of any records described by Paragraph (A) at no charge to the commission, the office of the attorney general, or authorized representatives.
(c) On receipt of a claim submitted by a third-party billing vendor, the commission shall send a remittance notice directly to the provider referenced in the claim. The notice must include detailed information regarding the claim submitted on behalf of the provider.
(d) The commission shall take all action necessary, including any modifications of the commission's claims processing system, to enable the commission to identify and verify a third-party billing vendor submitting a claim for payment under the program, including identification and verification of any computer or telephone line used in submitting the claim, any relevant user password used in submitting the claim, and any provider number referenced in the claim.
(e) The commission shall audit each third-party billing vendor subject to this section at least annually to prevent fraud and abuse under the program.
Added by Acts 2003, 78th Leg., ch. 198, § 2.44(a), eff. Jan. 1, 2006.
§ 62.059. HEALTH INSURANCE PREMIUM ASSISTANCE PROGRAM FOR CHILDREN ELIGIBLE FOR CHILD HEALTH PLAN. (a) In this section, "group health benefit plan" means a plan described by Section 1207.001, Insurance Code.
(b) The commission shall identify children, otherwise eligible to enroll in the state child health plan under this chapter, who are eligible to enroll in a group health benefit plan.
(c) For a child identified under Subsection (b), the commission shall determine whether it is cost-effective to enroll the child in the group health benefit plan under this section. The commission may determine cost-effectiveness on an aggregate basis for the premium assistance program as a whole.
(d) If the commission determines that it is cost-effective to enroll the child in the group health benefit plan, the commission shall:
(1) inform the child and the child's parent or guardian of the availability of the premium assistance program under this section;
(2) offer, as an optional alternative to enrollment in the commission's state child health plan program, a premium assistance payment to assist with the employee's or member's share of the required premiums for the group health benefit plan that is available to the child; and
(3) provide written notice to the issuer of the group health benefit plan in accordance with Chapter 1207, Insurance Code.
(e) The commission shall determine the amount of the premium assistance payment. The premium assistance payment shall be paid only for the reimbursement of the employee's or member's share of required premiums for coverage of a child enrolled in the group health benefit plan.
(f) The premium assistance payment paid under Subsection (e) may provide assistance for the payment of a group health benefit plan premium that includes the child's parent or other individuals who are members of the child's family.
(g) The commission may not provide for the payment of any deductible, copayment, coinsurance, or other cost-sharing obligation for the child or another individual enrolled in a group health benefit plan under Subsection (f).
(h) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.07(b). (i) Redesignated as subsec. (h) by Acts 2003, 78th Leg., ch. 11, § 1.
Added by Acts 2001, 77th Leg., ch. 1165, § 1, eff. Aug. 31, 2001. Amended by Acts 2003, 78th Leg., ch. 11, § 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 198, § 2.07(b), eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, § 11.125, eff. Sept. 1, 2005.
SUBCHAPTER C. ELIGIBILITY FOR COVERAGE UNDER CHILD HEALTH PLAN
§ 62.101. ELIGIBILITY. (a) A child is eligible for health benefits coverage under the child health plan if the child:
(1) is younger than 19 years of age; (2) is not eligible for medical assistance under the Medicaid program; (3) is not covered by a health benefits plan offering adequate benefits, as determined by the commission;
(4) has a family income that is less than or equal to the income eligibility level established under Subsection (b); and
(5) satisfies any other eligibility standard imposed under the child health plan program in accordance with 42 U.S.C. Section 1397bb, as amended, and any other applicable law or regulations.
(b) The commission shall establish income eligibility levels consistent with Title XXI, Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any other applicable law or regulations, and subject to the availability of appropriated money, so that a child who is younger than 19 years of age and whose gross family income is at or below 200 percent of the federal poverty level is eligible for health benefits coverage under the program. In addition, the commission may establish eligibility standards regarding the amount and types of allowable assets for a family whose gross family income is above 150 percent of the federal poverty level.
(c) The commissioner shall evaluate enrollment levels and program impact every six months during the first 12 months of implementation and at least annually thereafter and shall submit a finding of fact to the Legislative Budget Board and the Governor's Office of Budget and Planning as to the adequacy of funding and the ability of the program to sustain enrollment at the eligibility level established by Subsection (b). In the event that appropriated money is insufficient to sustain enrollment at the authorized eligibility level, the commissioner shall:
(1) suspend enrollment in the child health plan; (2) establish a waiting list for applicants for coverage; and (3) establish a process for periodic or continued enrollment of applicants in the child health plan program as the availability of money allows.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.46, eff. Sept. 1, 2003.
§ 62.1015. ELIGIBILITY OF CERTAIN CHILDREN; DISALLOWANCE OF MATCHING FUNDS. (a) In this section, "charter school," "employee," and "regional education service center" have the meanings assigned by Section 2, Article 3.50-7, Insurance Code.
(b) A child of an employee of a charter school, school district, other educational district whose employees are members of the Teacher Retirement System of Texas, or regional education service center may be enrolled in health benefits coverage under the child health plan. A child enrolled in the child health plan under this section:
(1) participates in the same manner as any other child enrolled in the child health plan; and
(2) is subject to the same requirements and restrictions relating to income eligibility, continuous coverage, and enrollment, including applicable waiting periods, as any other child enrolled in the child health plan.
(c) The cost of health benefits coverage for children enrolled in the child health plan under this section shall be paid as provided in the General Appropriations Act. Expenditures made to provide health benefits coverage under this section may not be included for the purpose of determining the state children's health insurance expenditures, as that term is defined by 42 U.S.C. Section 1397ee(d)(2)(B), as amended, unless the Health and Human Services Commission, after consultation with the appropriate federal agencies, determines that the expenditures may be included without adversely affecting federal matching funding for the child health plan provided under this chapter.
Added by Acts 2001, 77th Leg., ch. 1187, § 1.04, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 198, § 2.47, eff. Sept. 1, 2003.
§ 62.102. CONTINUOUS COVERAGE. The commission shall provide that an individual who is determined to be eligible for coverage under the child health plan remains eligible for those benefits until the earlier of:
(1) the end of the six-month period following the date of the eligibility determination; or
(2) the individual's 19th birthday.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.48, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 899, § 3.01, eff. Aug. 29, 2005.
§ 62.103. APPLICATION FORM AND PROCEDURES. (a) The commission, or the Texas Department of Human Services at the direction of and in consultation with the commission, shall adopt an application form and application procedures for requesting child health plan coverage under this chapter.
(b) The form and procedures must be coordinated with forms and procedures under the Medicaid program to ensure that there is a single consolidated application to seek assistance under this chapter or the Medicaid program.
(c) To the extent possible, the application form shall be made available in languages other than English.
(d) The commission may permit application to be made by mail, over the telephone, or through the Internet.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2001, 77th Leg., ch. 584, § 1, eff. Jan. 1, 2002.
§ 62.104. ELIGIBILITY SCREENING AND ENROLLMENT. (a) The commission, or the Texas Department of Human Services at the direction of and in consultation with the commission, shall develop eligibility screening and enrollment procedures for children that comply with the requirements of 42 U.S.C. Section 1397bb, as amended, and any other applicable law or regulations. The procedures shall ensure that Medicaid-eligible children are identified and referred to the Medicaid program.
(b) The Texas Integrated Enrollment Services eligibility determination system or a compatible system may be used to screen and enroll children under the child health plan.
(c) The eligibility screening and enrollment procedures shall ensure that children who appear to be Medicaid-eligible are identified and that their families are assisted in applying for Medicaid coverage.
(d) A child who applies for enrollment in the child health plan, who is denied Medicaid coverage after completion of a Medicaid application under Subsection (c), but who is eligible for enrollment in the child health plan, shall be enrolled in the child health plan without further application or qualification.
(e) The commission shall report semi-annually to the committees of both houses of the legislature with jurisdiction over the child health plan:
(1) the number of individuals referred for Medicaid application under this section who are enrolled in the Medicaid program; and
(2) the number of individuals who are denied coverage under the Medicaid program because they failed to complete the application process.
(f) A determination of whether a child is eligible for child health plan coverage under the program and the enrollment of an eligible child with a health plan provider must be completed, and information on the family's available choice of health plan providers must be provided, in a timely manner, as determined by the commission. The commission must require that the determination be made and the information be provided not later than the 30th day after the date a complete application is submitted on behalf of the child, unless the child is referred for Medicaid application under this section.
(g) In the first year of implementation of the child health plan, enrollment shall be open. Thereafter, the commission may establish enrollment periods.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.105. COVERAGE FOR QUALIFIED ALIENS. The commission shall provide coverage under the state Medicaid program and under the program established under this chapter to a child who is a qualified alien, as that term is defined by 8 U.S.C. Section 1641(b), if the federal government authorizes the state to provide that coverage. The commission shall comply with any prerequisite imposed under the federal law to providing that coverage.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
SUBCHAPTER D. CHILD HEALTH PLAN
§ 62.151. CHILD HEALTH PLAN COVERAGE. (a) The child health plan must comply with this chapter and the coverage requirements prescribed by 42 U.S.C. Section 1397cc, as amended, and any other applicable law or regulations.
(b) In developing the covered benefits, the commission shall consider the health care needs of healthy children and children with special health care needs.
(c) In developing the plan, the commission shall ensure that primary and preventive health benefits do not include reproductive services, other than prenatal care and care related to diseases, illnesses, or abnormalities related to the reproductive system.
(d) The child health plan must allow an enrolled child with a chronic, disabling, or life-threatening illness to select an appropriate specialist as a primary care physician.
(e) In developing the covered benefits, the commission shall seek input from the Public Assistance Health Benefit Review and Design Committee established under Section 531.067, Government Code.
(f) The commission, if it determines the policy to be cost-effective, may ensure that an enrolled child does not, unless authorized by the commission in consultation with the child's attending physician or advanced practice nurse, receive under the child health plan:
(1) more than four different outpatient brand-name prescription drugs during a month; or
(2) more than a 34-day supply of a brand-name prescription drug at any one time.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.49, eff. Sept. 1, 2003.
§ 62.152. APPLICATION OF INSURANCE LAW. To provide the flexibility necessary to satisfy the requirements of Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any other applicable law or regulations, the child health plan is not subject to a law that requires:
(1) coverage or the offer of coverage of a health care service or benefit; (2) coverage or the offer of coverage for the provision of services by a particular health care services provider, except as provided by Section 62.155(b); or
(3) the use of a particular policy or contract form or of particular language in a policy or contract form.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.153. COST SHARING. (a) To the extent permitted under 42 U.S.C. Section 1397cc, as amended, and any other applicable law or regulations, the commission shall require enrollees to share the cost of the child health plan, including provisions requiring enrollees under the child health plan to pay:
(1) a copayment for services provided under the plan; (2) an enrollment fee; or (3) a portion of the plan premium. (b) Subject to Subsection (d), cost-sharing provisions adopted under this section shall ensure that families with higher levels of income are required to pay progressively higher percentages of the cost of the plan.
(c) If cost-sharing provisions imposed under Subsection (a) include requirements that enrollees pay a portion of the plan premium, the commission shall specify the manner in which the premium is paid. The commission may require that the premium be paid to the Texas Department of Health, the Texas Department of Human Services, or the health plan provider.
(d) Cost-sharing provisions adopted under this section may be determined based on the maximum level authorized under federal law and applied to income levels in a manner that minimizes administrative costs.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.50, eff. Sept. 1, 2003.
§ 62.154. WAITING PERIOD; CROWD OUT. (a) To the extent permitted under Title XXI of the Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any other applicable law or regulations, the child health plan must include a waiting period. The child health plan may include copayments and other provisions intended to discourage:
(1) employers and other persons from electing to discontinue offering coverage for children under employee or other group health benefit plans; and
(2) individuals with access to adequate health benefit plan coverage, other than coverage under the child health plan, from electing not to obtain or to discontinue that coverage for a child.
(b) A child is not subject to a waiting period adopted under Subsection (a) if:
(1) the family lost coverage for the child as a result of: (A) termination of employment because of a layoff or business closing; (B) termination of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L. No. 99-272);
(C) change in marital status of a parent of the child; (D) termination of the child's Medicaid eligibility because: (i) the child's family's earnings or resources increased; or (ii) the child reached an age at which Medicaid coverage is not available; or
(E) a similar circumstance resulting in the involuntary loss of coverage; (2) the family terminated health benefits plan coverage for the child because the cost to the child's family for the coverage exceeded 10 percent of the family's net income;
(3) the child has access to group-based health benefits plan coverage and is required to participate in the health insurance premium payment reimbursement program administered by the commission; or
(4) the commission has determined that other grounds exist for a good cause exception.
(c) A child described by Subsection (b) may enroll in the child health plan program at any time, without regard to any open enrollment period established under the enrollment procedures.
(d) The waiting period required by Subsection (a) must extend for a period of 90 days after:
(1) the first day of the month in which the applicant is enrolled under the child health plan, if the date of enrollment is on or before the 15th day of the month; or
(2) the first day of the month after which the applicant is enrolled under the child health plan, if the date of enrollment is after the 15th day of the month.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.51(a), (b), eff. Sept. 1, 2003.
§ 62.155. HEALTH PLAN PROVIDERS. (a) The commission, or the Texas Department of Health at the direction of and in consultation with the commission, shall select the health plan providers under the program through a competitive procurement process. A health plan provider, other than a state administered primary care case management network, must hold a certificate of authority or other appropriate license issued by the Texas Department of Insurance that authorizes the health plan provider to provide the type of child health plan offered and must satisfy, except as provided by this chapter, any applicable requirement of the Insurance Code or another insurance law of this state.
(b) A managed care organization or other entity shall seek to obtain, in the organization's or entity's provider network, the participation of significant traditional providers, as defined by commission rule, if that organization or entity:
(1) contracts with the commission or with another agency or entity to operate a part of the child health plan under this chapter; and
(2) uses a provider network to provide or arrange for health care services under the child health plan.
(c) In selecting a health plan provider, the commission: (1) may give preference to a person who provides similar coverage under the Medicaid program; and
(2) shall provide for a choice of at least two health plan providers in each service area.
(d) The commissioner may authorize an exception to Subsection (c)(2) if there is only one acceptable applicant to become a health plan provider in the service area.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.52, eff. Sept. 1, 2003.
§ 62.156. HEALTH CARE PROVIDERS. Health care providers who provide health care services under the child health plan must satisfy certification and licensure requirements, as required by the commission, consistent with law.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 62.157. TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES FOR CHILDREN WITH SPECIAL HEALTH CARE NEEDS.
Text of section as added by Acts 2001, 77th Leg., ch. 959, § 5
(a) In providing covered benefits to a child with special health care needs, a health plan provider must permit benefits to be provided through telemedicine medical services and telehealth services in accordance with policies developed by the commission.
(b) The policies must provide for: (1) the availability of covered benefits appropriately provided through telemedicine medical services and telehealth services that are comparable to the same types of covered benefits provided without the use of telemedicine medical services and telehealth services; and
(2) the availability of covered benefits for different services performed by multiple health care providers during a single telemedicine medical services and telehealth services session, if the commission determines that delivery of the covered benefits in that manner is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services and telehealth services, including the costs of transportation and lodging and other direct costs.
(c) In developing the policies required by Subsection (a), the commission shall consult with:
(1) The University of Texas Medical Branch at Galveston; (2) Texas Tech University Health Sciences Center; (3) the Texas Department of Health; (4) providers of telemedicine hub sites in this state; (5) providers of services to children with special health care needs; and (6) representatives of consumer or disability groups affected by changes to services for children with special health care needs.
Added by Acts 2001, 77th Leg., ch. 959, § 5, eff. June 14, 2001.
For text of section as added by Acts 2001, 77th Leg., ch. 1255, § 4, see § 62.157, post
§ 62.157. TELEMEDICINE MEDICAL SERVICES.
Text of section as added by Acts 2001, 77th Leg., ch. 1255, § 4
(a) In providing covered benefits to a child, a health plan provider must permit benefits to be provided through telemedicine medical services in accordance with policies developed by the commission.
(b) The policies must provide for: (1) the availability of covered benefits appropriately provided through telemedicine medical services that are comparable to the same types of covered benefits provided without the use of telemedicine medical services; and
(2) the availability of covered benefits for different services performed by multiple health care providers during a single session of telemedicine medical services, if the commission determines that delivery of the covered benefits in that manner is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services, including the costs of transportation and lodging and other direct costs.
(c) In developing the policies required by Subsection (a), the commission shall consult with the telemedicine advisory committee.
(d) In this section, "telemedicine medical service" has the meaning assigned by Section 57.042, Utilities Code.
Added by Acts 2001, 77th Leg., ch. 1255, § 4, eff. June 15, 2001.
For text of section as added by Acts 2001, 77th Leg., ch. 959, § 5, see § 62.157, ante
§ 62.158. STATE TAXES. The commission shall ensure that any experience rebate or profit-sharing for health plan providers under the child health plan is calculated by treating premium, maintenance, and other taxes under the Insurance Code and any other taxes payable to this state as allowable expenses for purposes of determining the amount of the experience rebate or profit-sharing.
Added by Acts 2003, 78th Leg., ch. 198, § 2.53, eff. Sept. 1, 2003.
§ 62.159. DISEASE MANAGEMENT SERVICES. (a) In this section, "disease management services" means services to assist a child manage a disease or other chronic health condition, such as heart disease, diabetes, respiratory illness, end-stage renal disease, HIV infection, or AIDS, and with respect to which the commission identifies populations for which disease management would be cost-effective.
(b) The child health plan must provide disease management services or coverage for disease management services in the manner required by the commission, including:
(1) patient self-management education; (2) provider education; (3) evidence-based models and minimum standards of care; (4) standardized protocols and participation criteria; and (5) physician-directed or physician-supervised care.
Text of subsecs. (c) and (d) effective until January 1, 2006
(c) The commission shall conduct a study that evaluates the savings to the state as a result of implementation of the comprehensive disease management programs described by Subsections (a) and (b). The commission shall evaluate the clinical outcomes of children enrolled in a disease management program. The commission shall report the progress of the study to the governor, lieutenant governor, and speaker of the house of representatives not later than December 1, 2004, and the final results of the study not later than December 1, 2005.
(d) The commission may conduct the study under Subsection (c) in conjunction with an academic center.
(e) Subsections (c) and (d) and this subsection expire January 1, 2006.
Added by Acts 2003, 78th Leg., ch. 589, § 1, eff. June 20, 2003. § 63.001. DEFINITION. In this chapter, "commission" means the Health and Human Services Commission.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.002. NOT AN ENTITLEMENT. This chapter does not establish an entitlement to assistance in obtaining health benefits for a child.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.003. HEALTH BENEFITS PLAN COVERAGE FOR CERTAIN CHILDREN. The commission shall develop and implement a program to provide health benefits plan coverage for a child who:
(1) is a qualified alien, as that term is defined by 8 U.S.C. Section 1641(b);
(2) is younger than 19 years of age; (3) entered the United States after August 22, 1996; (4) has resided in the United States for less than five years; and (5) meets the income eligibility requirement of, but is not eligible for assistance under:
(A) the child health plan program under Chapter 62; or (B) the medical assistance program under Chapter 32, Human Resources Code.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.004. BENEFITS COVERAGE REQUIRED. To the extent possible, the program required by Section 63.003 must provide benefits comparable to the benefits provided under the child health plan program under Chapter 62.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.005. HEALTH BENEFITS PLAN PROVIDER. (a) A health benefits plan provider under this chapter must:
(1) hold a certificate of authority or other appropriate license issued by the Texas Department of Insurance that authorizes the health benefits plan provider to provide the type of coverage to be offered through the program required by Section 63.003; and
(2) satisfy, except as provided by Subsection (b), any other applicable requirement of the Insurance Code or another insurance law of this state.
(b) Except as required by the commission, a health benefits plan provider under this chapter is not subject to a law that requires coverage or the offer of coverage of a health care service or benefit.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.006. COST-SHARING PAYMENTS. (a) Except as provided by Subsection (b), the commission may not require a child who is provided health benefits plan coverage under Section 63.003 and who meets the income eligibility requirement of the medical assistance program under Chapter 32, Human Resources Code, to pay a premium, deductible, coinsurance, or other cost-sharing payment as a condition of health benefits plan coverage under this chapter.
(b) The commission may require a child described by Subsection (a) to pay a copayment as a condition of health benefits plan coverage under this chapter that is equal to any copayment required under the child health plan program under Chapter 62.
(c) The commission may require a child who is provided health benefits plan coverage under Section 63.003 and who meets the income eligibility requirement of the child health plan program under Chapter 62 to pay a premium, deductible, coinsurance, or other cost-sharing payment as a condition of health benefits plan coverage under this chapter. The payment must be equal to any premium, deductible, coinsurance, or other cost-sharing payment required under the child health plan program under Chapter 62.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999.
§ 63.007. DISALLOWANCE OF MATCHING FUNDS FROM FEDERAL GOVERNMENT. Expenditures made to provide health benefits plan coverage under this chapter may not be included for the purpose of determining the state children's health insurance expenditures, as that term is defined by 42 U.S.C. Section 1397ee(d)(2)(B), as amended.
Added by Acts 1999, 76th Leg., ch. 235, § 1, eff. Aug. 30, 1999. § 64.001. TEACHING HOSPITAL ACCOUNT. The Texas Department of Health state-owned multi-categorical teaching hospital account is an account in the general revenue fund. Money in the account may be appropriated only to the department to provide funding for indigent health care.
Added by Acts 1999, 76th Leg., ch. 1377, § 3.01, eff. Sept. 1, 1999. § 82.001. SHORT TITLE. This chapter may be cited as the Texas Cancer Incidence Reporting Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 33, eff. Sept. 1, 1991.
§ 82.002. DEFINITIONS. In this chapter: (1) "Cancer" includes: (A) a large group of diseases characterized by uncontrolled growth and spread of abnormal cells;
(B) any condition of tumors having the properties of anaplasia, invasion, and metastasis;
(C) a cellular tumor the natural course of which is fatal, including malignant and benign tumors of the central nervous system; and
(D) malignant neoplasm, other than nonmelanoma skin cancers such as basal and squamous cell carcinomas.
(2) "Clinical laboratory" means an accredited facility in which: (A) tests are performed identifying findings of anatomical changes; and (B) specimens are interpreted and pathological diagnoses are made. (3) "Health care facility" means: (A) a general or special hospital as defined by Chapter 241 (Texas Hospital Licensing Law);
(B) an ambulatory surgical center licensed under Chapter 243; (C) an institution licensed under Chapter 242; or (D) any other facility, including an outpatient clinic, that provides diagnosis or treatment services to patients with cancer.
(4) "Health care practitioner" means: (A) a physician as defined by Section 151.002, Occupations Code; or (B) a person who practices dentistry as described by Section 251.003, Occupations Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 589, § 1, eff. Sept. 1, 2001.
§ 82.003. APPLICABILITY OF CHAPTER. This chapter applies to records of cases of cancer, diagnosed on or after January 1, 1979, and to records of all ongoing cancer cases diagnosed before January 1, 1979.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 589, § 2, eff. Sept. 1, 2001.
§ 82.004. REGISTRY REQUIRED. The board shall maintain a cancer registry for the state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 82.005. CONTENT OF REGISTRY. (a) The cancer registry must be a central data bank of accurate, precise, and current information that medical authorities agree serves as an invaluable tool in the early recognition, prevention, cure, and control of cancer.
(b) The cancer registry must include: (1) a record of the cases of cancer that occur in the state; and (2) information concerning cancer cases as the board considers necessary and appropriate for the recognition, prevention, cure, or control of cancer.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 589, § 3, eff. Sept. 1, 2001.
§ 82.006. BOARD POWERS. To implement this chapter, the board may: (1) adopt rules that the board considers necessary; (2) execute contracts that the board considers necessary; (3) receive the data from medical records of cases of cancer that are in the custody or under the control of clinical laboratories, health care facilities, and health care practitioners to record and analyze the data directly related to those diseases;
(4) compile and publish statistical and other studies derived from the patient data obtained under this chapter to provide, in an accessible form, information that is useful to physicians, other medical personnel, and the general public;
(5) comply with requirements as necessary to obtain federal funds in the maximum amounts and most advantageous proportions possible;
(6) receive and use gifts made for the purpose of this chapter; and (7) limit cancer reporting activities under this chapter to specified geographic areas of the state to ensure optimal use of funds available for obtaining the data.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 589, § 4, eff. Sept. 1, 2001.
§ 82.007. REPORTS. (a) The department shall publish an annual report to the legislature of the information obtained under this chapter.
(b) The department, in cooperation with other cancer reporting organizations and research institutions, may publish reports the department determines are necessary or desirable to carry out the purpose of this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 34, eff. Sept. 1, 1991.
§ 82.008. DATA FROM MEDICAL RECORDS. (a) To ensure an accurate and continuing source of data concerning cancer, each health care facility, clinical laboratory, and health care practitioner shall furnish to the board or its representative, on request, data the board considers necessary and appropriate that is derived from each medical record pertaining to a case of cancer that is in the custody or under the control of the health care facility, clinical laboratory, or health care practitioner. The department may not request data that is more than three years old unless the department is investigating a possible cancer cluster.
(b) A health care facility, clinical laboratory, or health care practitioner shall furnish the data requested under Subsection (a) in a reasonable format prescribed by the department and within six months of the patient's admission, diagnosis, or treatment for cancer unless a different period is prescribed by the United States Department of Health and Human Services.
(c) The data required to be furnished under this section must include patient identification and diagnosis.
(d) The department may access medical records that would identify cases of cancer, establish characteristics or treatment of cancer, or determine the medical status of any identified patient from the following sources:
(1) a health care facility or clinical laboratory providing screening, diagnostic, or therapeutic services to a patient with respect to cancer; or
(2) a health care practitioner diagnosing or providing treatment to a patient with cancer, except as described by Subsection (g).
(e) The board shall adopt procedures that ensure adequate notice is given to the health care facility, clinical laboratory, or health care practitioner before the department accesses data under Subsection (d).
(f) A health care facility, clinical laboratory, or health care practitioner that knowingly or in bad faith fails to furnish data as required by this chapter shall reimburse the department or its authorized representative for the costs of accessing and reporting the data. The costs reimbursed under this subsection must be reasonable, based on the actual costs incurred by the department or by its authorized representative in the collection of data under Subsection (d), and may include salary and travel expenses. The department may assess a late fee on an account that is 60 days or more overdue. The late fee may not exceed one and one-half percent of the total amount due on the late account for each month or portion of a month the account is not paid in full. A health care facility, clinical laboratory, or health care practitioner may request that the department conduct a hearing to determine whether reimbursement to the department under this subsection is appropriate.
(g) The department may not require a health care practitioner to furnish data or provide access to records if:
(1) the data or records pertain to cases reported by a health care facility providing screening, diagnostic, or therapeutic services to cancer patients that involve patients referred directly to or previously admitted to the facility; and
(2) the facility reported the same data the practitioner would be required to report.
(h) The data required to be furnished under this section may be shared with cancer registries of health care facilities subject to the confidentiality provisions in Section 82.009.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 35, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 343, § 1, eff. May 27, 1997; Acts 1999, 76th Leg., ch. 1411, § 23.01, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 589, § 5, eff. Sept. 1, 2001.
§ 82.009. CONFIDENTIALITY. (a) Reports, records, and information obtained under this chapter are confidential and are not subject to disclosure under Chapter 552, Government Code, are not subject to subpoena, and may not otherwise be released or made public except as provided by this section or Section 82.008(h). The reports, records, and information obtained under this chapter are for the confidential use of the department and the persons or public or private entities that the department determines are necessary to carry out the intent of this chapter.
(b) Medical or epidemiological information may be released: (1) for statistical purposes in a manner that prevents identification of individuals, health care facilities, clinical laboratories, or health care practitioners;
(2) with the consent of each person identified in the information; or (3) to promote cancer research, including release of information to other cancer registries and appropriate state and federal agencies, under rules adopted by the board to ensure confidentiality as required by state and federal laws.
(c) A state employee may not testify in a civil, criminal, special, or other proceeding as to the existence or contents of records, reports, or information concerning an individual whose medical records have been used in submitting data required under this chapter unless the individual consents in advance.
(d) Data furnished to a cancer registry or a cancer researcher under Subsection (b) or Section 82.008(h) is for the confidential use of the cancer registry or the cancer researcher, as applicable, and is subject to Subsection (a).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(90), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 343, § 2, eff. May 27, 1997; Acts 1999, 76th Leg., ch. 1411, § 23.02, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 589, § 6, eff. Sept. 1, 2001.
§ 82.010. IMMUNITY FROM LIABILITY. The following persons subject to this chapter that act in compliance with this chapter are not civilly or criminally liable for furnishing the information required under this chapter:
(1) a health care facility or clinical laboratory; (2) an administrator, officer, or employee of a health care facility or clinical laboratory;
(3) a health care practitioner or employee of a health care practitioner; and
(4) an employee of the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 589, § 7, eff. Sept. 1, 2001.
§ 82.011. EXAMINATION AND SUPERVISION NOT REQUIRED. This chapter does not require an individual to submit to any medical examination or supervision or to examination or supervision by the board or its representatives.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 83.001. DEFINITIONS. In this chapter: (1) "Agent Orange" means the herbicide composed primarily of trichlorophenoxyacetic acid and dichlorophenoxyacetic acid.
(2) "Veteran" means a person who served in Vietnam, Cambodia, or Laos during the Vietnam conflict and was a resident of this state:
(A) when the person was inducted into the armed forces of the United States of America; or
(B) on March 31, 1981.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.002. REPORTS TO DEPARTMENT. (a) A physician having primary responsibility for treating a veteran who believes he may have been exposed to chemical defoliants or herbicides or other causative agents, including Agent Orange, while serving in the armed forces of the United States shall, at the request of the veteran, submit a report to the department.
(b) If there is no physician having primary responsibility for treating the veteran, the hospital treating the veteran shall, at the request of the veteran, submit the report to the department.
(c) If there is no physician or hospital treating the veteran, the veteran may submit the report directly to the department. If the veteran is deceased, the veteran's next of kin may submit the report.
(d) A report submitted under this section must be on a form provided by the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.003. INFORMATION TO DEPARTMENT. (a) The reporting form provided by the department to a physician must request the following information:
(1) symptoms of the veteran that may be related to exposure to a chemical defoliant or herbicide or other causative agent, including Agent Orange; (2) diagnosis of the veteran; and (3) methods of treatment prescribed. (b) The reporting form provided by the department to a veteran or the veteran's next of kin must request the following information:
(1) symptoms of the veteran that may be related to exposure to a chemical defoliant or herbicide or other causative agent, including Agent Orange; and
(2) any other information as determined by the commissioner. (c) The department may require the veteran to provide other information as determined by the commissioner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.004. REPORTS BY DEPARTMENT. (a) The department shall compile and evaluate information submitted under this chapter into a report to be distributed annually to members of the legislature, the Veterans Administration, the Texas Veterans Commission, and other veterans' groups. The report must include statistical information and current research findings on the effects of exposure to chemical defoliants or herbicides or other causative agents, including Agent Orange.
(b) The department shall conduct epidemiological studies on veterans who have cancer or other medical problems associated with exposure to a chemical defoliant or herbicide or other causative agent, including Agent Orange, or who have children born with birth defects after the veterans' suspected exposure to a chemical defoliant or herbicide or other causative agent, including Agent Orange.
(c) The department must obtain consent from each veteran to be studied under Subsection (b).
(d) The department shall compile and evaluate information obtained from studies conducted under Subsection (b) into a report to be distributed as provided by Subsection (a).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.005. CONFIDENTIALITY. (a) The identity of a veteran about whom a report has been made under Section 83.002 or 83.004 may not be disclosed unless the veteran consents to the disclosure.
(b) Statistical information collected under this chapter is public information.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.006. IMMUNITY FROM LIABILITY. A physician or hospital reporting in compliance with this chapter is not civilly or criminally liable for providing the information required by this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.007. CLASS ACTION SUIT. The attorney general may represent a class of individuals composed of veterans who may have been injured because of contact with chemical defoliants or herbicides or other causative agents, including Agent Orange, in a suit for release of information relating to exposure to the chemicals during military service and for release of individual medical records.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.008. ASSISTANCE PROGRAM. (a) The department and the health science centers and other medical facilities of The University of Texas System shall institute a cooperative program to:
(1) refer veterans to appropriate state and federal agencies to file claims to remedy medical and financial problems caused by the veterans' exposure to chemical defoliants or herbicides or other causative agents, including Agent Orange; (2) provide veterans with cytogenetic, sperm, immunological, neurological, progeny birth defect, and other appropriate clinical or laboratory evaluations to determine if the veteran has suffered physical damage as a result of substantial exposure to chemical defoliants or herbicides or other causative agents, including Agent Orange; (3) provide veterans with genetic counseling; and (4) refer a veteran's child for further evaluation and treatment if the child has a birth defect and the suspected cause of the birth defect is the veteran's exposure to a chemical defoliant or herbicide or other causative agent, including Agent Orange.
(b) The commissioner shall adopt rules necessary to administer the program authorized by this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.009. CERTAIN CASES EXCLUDED. Sections 83.002 and 83.004 do not apply to veterans treated before January 1, 1982, for symptoms typical of a person who has been exposed to a chemical defoliant or herbicide or other causative agent, including Agent Orange.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 83.010. TERMINATION OF PROGRAMS AND DUTIES. If the commissioner determines that an agency of the federal government is performing the referral and screening functions required by Section 83.008, the commissioner may discontinue any program required by this chapter or any duty required of a physician or hospital under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 84.001. SHORT TITLE. This chapter may be cited as the Occupational Condition Reporting Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 2, eff. May 23, 1997.
§ 84.002. DEFINITIONS. In this chapter: (1) "Health professional" means an individual whose: (A) vocation or profession is directly or indirectly related to the maintenance of health in another individual; and
(B) duties require a specified amount of formal education and may require a special examination, a certificate or license, or membership in a regional or national association.
(2) "Occupational condition" means a disease, abnormal health condition, or laboratory finding that is caused by or is related to exposures in the workplace.
(3) "Reportable condition" means a disease, condition, or laboratory finding required to be reported under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 2, eff. May 23, 1997.
§ 84.003. REPORTABLE CONDITIONS; RULES. (a) Asbestosis and silicosis are occupational conditions that are reportable to the department.
(b) Blood lead levels in adults are laboratory findings that are reportable to the department as provided by board rule.
(c) The board may adopt rules that require other occupational conditions to be reported under this chapter. Before the board requires another occupational condition to be reported, the board must find that the condition:
(1) has a well-understood etiology; (2) results predominantly from occupational exposures; and (3) is preventable. (d) The board shall maintain a list of reportable conditions. (e) The board shall adopt rules necessary to administer and implement this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 2, eff. May 23, 1997.
§ 84.004. REPORTING REQUIREMENTS. (a) The following persons shall report cases or suspected cases of reportable conditions to the department:
(1) a physician who diagnoses or treats the individual with the condition; (2) a person who is in charge of a clinical or hospital laboratory, blood bank, mobile unit, or other facility in which a laboratory examination of any specimen derived from a human body yields microscopical, cultural, serological, or other evidence suggestive of the condition; and
(3) a health professional. (b) The department may contact a physician attending a person with a case or a suspected case of an occupational condition.
(c) The board shall prescribe the form and method of reporting. The board may require the reports to contain any information necessary to achieve the purposes of this chapter, including the person's name, address, age, sex, race, occupation, employer, and attending physician.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 3, eff. May 23, 1997.
§ 84.005. POWERS AND DUTIES OF DEPARTMENT. (a) The department may enter into contracts or agreements as necessary to implement this chapter. The contracts or agreements may provide for payment by the state for materials, equipment, and services.
(b) The department may seek, receive, and spend any funds received through appropriations, grants, or donations from public or private sources for the purpose of identifying, reporting, or preventing those occupational conditions that have been determined by the board to be injurious or to be a threat to the public health, subject to any limitations or conditions prescribed by the legislature.
(c) Subject to the confidentiality requirements of this chapter, the department shall evaluate the reports of occupational conditions to establish the nature and magnitude of the hazards associated with those conditions, to prevent the occurrence of those hazards, and to establish any trends involved.
(d) The department may make inspections and investigations as authorized by this chapter and other law.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 4, eff. May 23, 1997.
§ 84.006. CONFIDENTIALITY. (a) All information and records relating to reportable conditions are confidential. That information may not be released or made public on subpoena or otherwise, except that release of information may be made:
(1) for statistical purposes, but only if a person is not identified; (2) with the consent of each person identified in the information released; or
(3) to medical personnel in a medical emergency to the extent necessary to protect the health or life of the named person.
(b) The board shall adopt rules establishing procedures to ensure that all information and records maintained by the department under this chapter are kept confidential and protected from release to unauthorized persons.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 5, eff. May 23, 1997.
§ 84.007. INVESTIGATIONS. (a) The department shall investigate the causes of occupational conditions and methods of prevention.
(b) In performing the commissioner's duty to prevent an occupational condition, the commissioner or the commissioner's designee may enter at reasonable times and inspect within reasonable limits all or any part of an area, structure, or conveyance, regardless of ownership, that is not used for private residential purposes.
(c) Persons authorized to conduct investigations under this section may take samples of materials present on the premises, including samples of soil, water, air, unprocessed or processed foodstuffs, manufactured items of clothing, and household goods. If samples are taken, a corresponding sample shall be offered to the person in control of the premises for independent analysis.
(d) Persons securing the required samples may reimburse or offer to reimburse the owner for the materials taken, but the reimbursement may not exceed the actual monetary loss sustained by the owner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 245, § 6, eff. May 23, 1997. § 85.001. SHORT TITLE. This chapter may be cited as the Human Immunodeficiency Virus Services Act.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.002. DEFINITIONS. In this chapter: (1) "AIDS" means acquired immune deficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.
(2) "Communicable disease" has the meaning assigned by Section 81.003 (Communicable Disease Prevention and Control Act).
(3) "Contact tracing" means identifying all persons who may have been exposed to an infected person and notifying them that they have been exposed, should be tested, and should seek treatment.
(4) "HIV" means human immunodeficiency virus. (5) "State agency" means: (A) a board, commission, department, office, or other agency that is in the executive branch of state government and that was created by the Texas Constitution or a state statute and includes an institution of higher education as defined by Section 61.003, Education Code;
(B) the legislature or a legislative agency; and (C) the supreme court, the court of criminal appeals, a court of appeals, the State Bar of Texas, or another state judicial agency.
(6) "Testing program" means a medical program to test for AIDS, HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.003. DEPARTMENT AS LEAD AGENCY AND PRIMARY RESOURCE. The department, in the discharge of its duty to protect the public health, shall act as the lead agency for AIDS and HIV policy for Texas and is the primary resource for HIV education, prevention, risk reduction materials, policies, and information in this state.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 708, § 2, eff. Sept. 1, 1993.
§ 85.004. EDUCATION PROGRAMS. (a) The department shall develop model education programs to be available to educate the public about AIDS and HIV infection.
(b) As part of the programs, the department shall develop a model educational pamphlet about methods of transmission and prevention of HIV infection, about state laws relating to the transmission, and to conduct that may result in the transmission of HIV.
(c) The programs must be scientifically accurate and factually correct and designed to:
(1) communicate to the public knowledge about methods of transmission and prevention of HIV infection;
(2) educate the public about transmission risks in social, employment, and educational situations;
(3) educate health care workers and health facility employees about methods of transmission and prevention in their particular workplace environments; and
(4) educate the public about state laws relating to the transmission and conduct that may result in the transmission of HIV.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.005. SPECIAL COMPONENTS OF EDUCATION PROGRAMS. (a) The department shall include in the education programs special components designed to reach:
(1) persons with behavior conducive to HIV transmission; (2) persons younger than 18 years of age; and (3) minority groups. (b) In designing education programs for ethnic minorities and in assisting local community organizations in developing education programs for minority groups, the department shall ensure that the programs reflect the nature and spread of HIV infection in minorities in this state.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.006. EDUCATION PROGRAMS FOR DISABLED PERSONS. (a) The department shall develop and promote HIV education and prevention programs specifically designed to address the concerns of persons with physical or mental disabilities.
(b) In designing those programs, the department shall consult persons with disabilities or consult experts in the appropriate professional disciplines.
(c) To the maximum extent possible, state-funded HIV education and prevention programs shall be accessible to persons with physical disabilities.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.007. EDUCATION PROGRAMS FOR MINORS. (a) The department shall give priority to developing model education programs for persons younger than 18 years of age.
(b) The materials in the education programs intended for persons younger than 18 years of age must:
(1) emphasize sexual abstinence before marriage and fidelity in marriage as the expected standard in terms of public health and the most effective ways to prevent HIV infection, sexually transmitted diseases, and unwanted pregnancies; and
(2) state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code.
(c) In addition, the materials in the education program intended for persons younger than 18 years of age must:
(1) teach that sexual activity before marriage is likely to have harmful psychological and physical consequences;
(2) teach adolescents ways to recognize and respond to unwanted physical and verbal sexual advances;
(3) teach that the use of alcohol or drugs increases a person's vulnerability to unwanted sexual advances; and
(4) emphasize the importance of attaining self-sufficiency before engaging in sexual activity.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg., ch. 1411, § 24.01, eff. Sept. 1, 1999.
§ 85.008. DISTRIBUTION OF EDUCATION PROGRAMS. (a) The department shall determine where HIV education efforts are needed in this state and shall initiate programs in those areas by identifying local resources.
(b) The department shall assist communities, especially those in rural areas, in establishing self-sustaining education programs, using public and private resources.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.009. EDUCATION PROGRAMS AVAILABLE ON REQUEST. The department shall make the education programs available to local governments and private businesses on request.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.010. EDUCATIONAL COURSE FOR EMPLOYEES AND CLIENTS OF HEALTH CARE FACILITIES. A health care facility licensed by the department, the Texas Department of Mental Health and Mental Retardation, or the Texas Department of Human Services shall require its employees to complete an educational course about HIV infection based on the model education programs developed by the department.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.011. CONTRACTS FOR EDUCATION PROGRAMS. (a) The department may contract with any person, other than a person who advocates or promotes conduct that violates state law, for the design, development, and distribution of education programs.
(b) This section does not restrict an education program from providing accurate information about different ways to reduce the risk of exposure to or the transmission of HIV.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.012. MODEL WORKPLACE GUIDELINES. (a) To ensure consistent public policy, the department, in consultation with appropriate state and local agencies and private entities, shall develop model workplace guidelines concerning persons with HIV infection and related conditions.
(b) The model workplace guidelines must include provisions stating that: (1) all employees will receive some education about methods of transmission and prevention of HIV infection and related conditions;
(2) accommodations will be made to keep persons with HIV infection employed and productive for as long as possible;
(3) the confidentiality of employee medical records will be protected; (4) HIV-related policies will be consistent with current information from public health authorities, such as the Centers for Disease Control of the United States Public Health Service, and with state and federal law and regulations;
(5) persons with HIV infection are entitled to the same rights and opportunities as persons with other communicable diseases; and
(6) employers and employees should not engage in discrimination against persons with HIV infection unless based on accurate scientific information.
(c) The department shall develop more specific model workplace guidelines for employers in businesses with educational, correctional, health, or social service responsibilities.
(d) The department shall make the model workplace guidelines available on request.
(e) Employers should be encouraged to adopt HIV-related workplace guidelines that incorporate, at a minimum, the guidelines established by the board under this section.
(f) This chapter does not create a new cause of action for a violation of workplace guidelines.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.013. FUNDING INFORMATION. (a) The department shall: (1) maintain current information on public and private sources of funding for HIV-related prevention, education, treatment, and social support services; and
(2) maintain information on the type, amount, and sources of funding for HIV-related prevention, education, treatment, and social support services being provided throughout the state.
(b) To encourage and maximize the use of federal and private funds, the department shall forward the information as soon as possible after receipt to public and nonprofit agencies that may be eligible for funding and shall make the information available to public and private entities on request.
(c) The department may seek, accept, and spend funds from state, federal, local, and private entities to carry out this section.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.014. TECHNICAL ASSISTANCE TO COMMUNITY ORGANIZATIONS. (a) The department shall provide technical assistance to nonprofit community organizations to maximize the use of limited resources and volunteer efforts and to expand the availability of health care, education, prevention, and social support services needed to address the HIV epidemic.
(b) The department shall provide technical assistance in: (1) recruiting, training, and effectively using volunteers in the delivery of HIV-related services;
(2) identifying funding opportunities and sources, including information on developing sound grant proposals; and
(3) developing and implementing effective service delivery approaches for community-based health care, education, prevention, and social support services pertaining to HIV.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.015. CONTRACT FOR SERVICES; DURATION. (a) The department may contract with an entity to provide the services required by Subchapters A through F if:
(1) the contract would minimize duplication of effort and would deliver services cost-effectively; and
(2) the contracting entity does not advocate or promote conduct that violates state law.
(b) Subsection (a)(2) does not restrict an education program from providing accurate information about ways to reduce the risk of exposure to or transmission of HIV.
(c) The department may audit an entity contracting with the department under Subsection (a).
(d) The department may seek, accept, and spend funds from state, federal, local, and private entities to carry out Subsections (a) through (c).
(e) A contract entered into by the department under this subchapter may not be for a term of more than one year, except that a contract may be renewed without a public hearing.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.016. RULES. The board may adopt rules necessary to implement Subchapters A through F.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER B. STATE GRANT PROGRAM TO COMMUNITY ORGANIZATIONS
§ 85.031. STATE GRANT PROGRAM TO COMMUNITY ORGANIZATIONS. The department shall establish and administer a state grant program to nonprofit community organizations for:
(1) HIV education, prevention, and risk reduction programs; and (2) treatment, health, and social service programs for persons with HIV infection.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.032. RULES; PROGRAM STRUCTURE. (a) The board may adopt rules relating to:
(1) the services that may be furnished under the program; (2) a system of priorities regarding the types of services provided, geographic areas covered, or classes of individuals or communities targeted for services under the program; and
(3) a process for resolving conflicts between the department and a program receiving money under this subchapter.
(b) Board or department actions relating to service, geographic, and other priorities shall be based on the set of priorities and guidelines established under this section.
(c) In structuring the program and adopting rules, the department and the board shall attempt to:
(1) coordinate the use of federal, local, and private funds; (2) encourage the provision of community-based services; (3) address needs that are not met by other sources of funding; (4) provide funding as extensively as possible across the regions of the state in amounts that reflect regional needs; and
(5) encourage cooperation among local service providers.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.033. COORDINATION OF SERVICES. (a) To prevent unnecessary duplication of services, the board and the department shall seek to coordinate the services provided by eligible programs under Subchapters A through G with existing federal, state, and local programs.
(b) The department shall consult with the Texas Department of Human Services to ensure that programs funded under this subchapter complement and do not unnecessarily duplicate services provided through the Texas Department of Human Services.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.034. APPLICATION PROCEDURES AND ELIGIBILITY GUIDELINES. (a) The department shall establish application procedures and eligibility guidelines for the state grants under this subchapter.
(b) Application procedures must include regional public hearings after reasonable notice in the region in which the community organization is based before awarding an initial grant or grants totalling more than $25,000 annually.
(c) Before the 10th day before the date of the public hearing, notice shall be given to each state representative and state senator who represents any part of the region in which any part of the grant will be expended.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.035. APPLICANT INFORMATION. An applicant for a state grant under this subchapter shall submit to the department for approval:
(1) a description of the objectives established by the applicant for the conduct of the program;
(2) documentation that the applicant has consulted with appropriate local officials, community groups, and individuals with expertise in HIV education and treatment and knowledge of the needs of the population to be served;
(3) a description of the methods the applicant will use to evaluate the activities conducted under the program to determine if the objectives are met; and
(4) any other information requested by the department.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.036. AWARDING OF GRANTS. (a) In awarding grants for education programs under this subchapter, the department shall give special consideration to nonprofit community organizations whose primary purpose is serving persons younger than 18 years of age.
(b) In awarding grants for treatment, health, and social services, the department shall endeavor to distribute grants in a manner that prevents unnecessary duplication of services within a community.
(c) In awarding grants for education programs, the department shall endeavor to complement existing education programs in a community, to prevent unnecessary duplication of services within a community, to provide HIV education programs for populations engaging in behaviors conducive to HIV transmission, to initiate needed HIV education programs where none exist, and to promote early intervention and treatment of persons with HIV infection.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.037. RESTRICTIONS ON GRANTS. (a) The department may not award a grant to an entity or community organization that advocates or promotes conduct that violates state law.
(b) This section does not prohibit the award of a grant to an entity or community organization that provides accurate information about ways to reduce the risk of exposure to or transmission of HIV.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.038. RESTRICTIONS ON FUNDS. (a) The department may not use more than five percent of the funds appropriated for the grant program to employ sufficient staff to review and process grant applications, monitor and evaluate the effectiveness of funded programs, and provide technical assistance to grantees.
(b) Not more than one-third of the funds available under this subchapter may be used for HIV education, prevention, and risk reduction.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.039. INFORMATION PROVIDED BY FUNDED PROGRAM. (a) A program funded with a grant under this subchapter shall provide information and educational materials that are accurate, comprehensive, and consistent with current findings of the United States Public Health Service.
(b) Information and educational materials developed with a grant awarded under this subchapter must contain materials and be presented in a manner that is specifically directed to the group for which the materials are intended.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.040. EVALUATION OF FUNDED PROGRAMS. (a) The department shall develop evaluation criteria to document effectiveness, unit-of-service costs, and number of volunteers used in programs funded with grants under this subchapter.
(b) An organization that receives funding under the program shall: (1) collect and maintain relevant data as required by the department; and (2) submit to the department copies of all material the organization has printed or distributed relating to HIV infection.
(c) The department shall provide prompt assistance to grantees in obtaining materials and skills necessary to collect and report the data required under this section.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.041. RECORDS AND REPORTS. (a) The department shall require each program receiving a grant under this subchapter to maintain records and information specified by the department.
(b) The board may adopt rules relating to the information a program is required to report to the department and shall adopt procedures and forms for reporting the information to prevent unnecessary and duplicative reporting of data.
(c) The department shall review records, information, and reports prepared by programs funded under this subchapter. Before December 1 of each year, the department shall prepare a report that is available to the public and that summarizes data regarding the type, level, quality, and cost-effectiveness of services provided under this subchapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.042. FINANCIAL RECORDS. (a) The department shall review periodically the financial records of a program funded with a grant under this subchapter.
(b) As a condition of accepting a grant under this subchapter, a community organization must allow the department to periodically review the financial records of that organization.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.043. DUE PROCESS. The department may provide a due process hearing procedure for the resolution of conflicts between the department and a program funded with a state grant under this subchapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.044. ADVISORY COMMITTEE. The board may appoint an advisory committee to assist in the development of procedures and guidelines required by this subchapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER C. HIV MEDICATION PROGRAM
§ 85.061. HIV MEDICATION PROGRAM. (a) The Texas HIV medication program is established in the department.
(b) The program shall assist hospital districts, local health departments, public or nonprofit hospitals and clinics, nonprofit community organizations, and HIV-infected individuals in the purchase of medications approved by the board that have been shown to be effective in reducing hospitalizations due to HIV-related conditions.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.062. ELIGIBILITY. (a) To be eligible for the program, an individual:
(1) must not be eligible for Medicaid benefits; (2) must meet financial eligibility criteria set by board rule; (3) must not qualify for any other state or federal program available for financing the purchase of the prescribed medication; and
(4) must be diagnosed by a licensed physician as having AIDS or an HIV-related condition or illness of at least the minimal severity set by the board.
(b) The department shall give priority to participation in the program to eligible individuals younger than 18 years of age.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.063. PROCEDURES AND ELIGIBILITY GUIDELINES. The board by rule shall establish:
(1) application and distribution procedures; (2) eligibility guidelines to ensure the most appropriate distribution of funds available each year; and
(3) appellate procedures to resolve any eligibility or funding conflicts.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.064. FUNDING. (a) The department may accept and use local, state, and federal funds and private donations to fund the program.
(b) State, local, and private funds may be used to qualify for federal matching funds if federal funding becomes available.
(c) A hospital district, local health department, public or nonprofit hospital or clinic, or nonprofit community organization may participate in the program by sending funds to the department for the purpose of providing assistance to clients for the purchase of HIV medication. A hospital district may send funds obtained from any source, including taxes levied by the district.
(d) The department shall deposit money received under this section in the state treasury to the credit of the HIV medication fund and to the credit of a special account in that fund that shall be established for each entity sending funds under this section.
(e) Funds received from a hospital district, local health department, public or nonprofit hospital or clinic, or nonprofit community organization under this section may be used only to provide assistance to clients of that entity. The funds may be supplemented with other funds available for the purpose of the program.
(f) Funds appropriated by the General Appropriations Act may not be transferred from other line items for the program.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.065. SLIDING FEE SCALE TO PURCHASE MEDICATION. The department may institute a sliding fee scale to help eligible HIV-infected individuals purchase medications under the program.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.066. ADVISORY COMMITTEE. The board may appoint an advisory committee to assist in the development of procedures and guidelines required by this subchapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER D. TESTING PROGRAMS AND COUNSELING
§ 85.081. MODEL PROTOCOLS FOR COUNSELING AND TESTING. (a) The department shall develop model protocols for counseling and testing related to HIV infection. The protocols shall be made available to health care providers on request.
(b) A testing program shall adopt and comply with the model protocols developed by the department under Subsection (a).
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.082. DEPARTMENT VOLUNTARY TESTING PROGRAMS. (a) The department shall establish voluntary HIV testing programs in each public health region to make confidential counseling and testing available. The department shall complete contact tracing after a confirmed positive test.
(b) The department may contract with public and private entities to perform the testing as necessary according to local circumstances.
(c) The results of a test conducted by a testing program or department program under this section may not be used for insurance purposes, to screen or determine suitability for employment, or to discharge a person from employment.
(d) A person who is injured by an intentional violation of Subsection (c) may bring a civil action for damages and may recover for each violation from a person who violates Subsection (c):
(1) $1,000 or actual damages, whichever is greater; and (2) reasonable attorney fees. (e) In addition to the remedies provided by Subsection (d), the person may bring an action to restrain a violation or threatened violation of Subsection (c).
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.083. REGISTRATION OF TESTING PROGRAM. (a) A person may not advertise or represent to the public that the person conducts a testing program for AIDS, HIV infection, or related conditions without registering with the department.
(b) A hospital licensed under Chapter 241 (Texas Hospital Licensing Law) or a physician licensed under Subtitle B, Title 3, Occupations Code, is not required to be registered under this section unless the hospital or physician advertises or represents to the public that the hospital or physician conducts or specializes in testing programs for AIDS, HIV infection, or related conditions.
(c) The department may assess and collect a registration fee in an amount that does not exceed the estimated costs of administering this section.
(d) A person who violates Subsection (a) is liable for a civil penalty of $1,000 for each day of a continuing violation.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.773, eff. Sept. 1, 2001.
§ 85.084. FOR-PROFIT TESTING PROGRAM. A testing program that operates for profit, that advertises or represents to the public that it conducts or specializes in testing programs, and that is required to register under Section 85.083 shall:
(1) obtain the informed consent of the person to be tested before conducting the test; and
(2) provide an itemized statement of charges to the person tested or counseled.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.085. PHYSICIAN SUPERVISION OF MEDICAL CARE. A licensed physician shall supervise any medical care or procedure provided under a testing program.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.086. REPORTS. A testing program shall report test results for HIV infection in the manner provided by Chapter 81 (Communicable Disease Prevention and Control Act).
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.087. TRAINING OF COUNSELORS. (a) The department shall develop and offer a training course for persons providing HIV counseling. The training course shall include information relating to the special needs of persons with positive HIV test results, including the importance of early intervention and treatment and recognition of psychosocial needs.
(b) The department shall maintain a registry of persons who successfully complete the training course.
(c) The department may charge a fee for the course to persons other than employees of entities receiving state or federal funds for HIV counseling and testing programs through a contract with the department.
(d) The board shall set the fee in an amount that is reasonable and necessary to cover the costs of providing the course.
(e) The department may contract for the training of counselors.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.088. STATE-FUNDED HEALTH CLINICS. (a) State-funded primary health, women's reproductive health, and sexually transmitted disease clinics shall:
(1) make available to patients and clients information and educational materials concerning the prevention of HIV infection; and
(2) provide voluntary, anonymous, and affordable counseling and testing programs concerning HIV infection or provide referrals to those programs.
(b) Information provided under Subsection (a)(1) shall be routinely incorporated into patient education and counseling in clinics specializing in sexually transmitted diseases and women's reproductive health.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.089. DISCIPLINARY ACTION. This subchapter does not prohibit disciplinary proceedings from being conducted by the appropriate licensing authorities for a health care provider's violation of this subchapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER E. DUTIES OF STATE AGENCIES AND STATE CONTRACTORS
§ 85.111. EDUCATION OF STATE EMPLOYEES. (a) Each state agency annually shall provide to each state employee an educational pamphlet about:
(1) methods of transmission and prevention of HIV infection; (2) state laws relating to the transmission of HIV infection; and (3) conduct that may result in the transmission of HIV infection. (b) The educational pamphlet shall be provided to a newly hired state employee on the first day of employment.
(c) The educational pamphlet shall be based on the model developed by the department and shall include the workplace guidelines adopted by the state agency.
(d) The department shall prepare and distribute to each state agency a model informational pamphlet that can be reproduced by each state agency to meet the requirements of this section.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.112. WORKPLACE GUIDELINES. (a) Each state agency shall adopt and implement workplace guidelines concerning persons with AIDS and HIV infection.
(b) The workplace guidelines shall incorporate at a minimum the model workplace guidelines developed by the department.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.113. WORKPLACE GUIDELINES FOR STATE CONTRACTORS. An entity that contracts with or is funded by any of the following state agencies to operate a program involving direct client contact shall adopt and implement workplace guidelines similar to the guidelines adopted by the agency that funds or contracts with the entity:
(1) the Texas Commission on Alcohol and Drug Abuse; (2) the Texas Commission for the Blind; (3) the Texas Commission for the Deaf and Hard of Hearing; (4) the Texas Juvenile Probation Commission; (5) the Texas Department of Criminal Justice; (6) the Texas Youth Commission; (7) the department; (8) the Texas Department of Human Services; (9) the Texas Department of Mental Health and Mental Retardation; and (10) the Texas Rehabilitation Commission.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 835, § 25, eff. Sept. 1, 1995.
§ 85.114. EDUCATION OF CERTAIN CLIENTS, INMATES, PATIENTS, AND RESIDENTS. (a) Each state agency listed in Section 85.113 shall routinely make available HIV education for clients, inmates, patients, and residents of treatment, educational, correctional, or residential facilities under the agency's jurisdiction.
(b) Education available under this section shall be based on the model education program developed by the department and tailored to the cultural, educational, language, and developmental needs of the clients, inmates, patients, or residents, including the use of Braille or telecommunication devices for the deaf.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.115. CONFIDENTIALITY GUIDELINES. (a) Each state agency shall develop and implement guidelines regarding confidentiality of AIDS and HIV-related medical information for employees of the agency and for clients, inmates, patients, and residents served by the agency.
(b) Each entity that receives funds from a state agency for residential or direct client services or programs shall develop and implement guidelines regarding confidentiality of AIDS and HIV-related medical information for employees of the entity and for clients, inmates, patients, and residents served by the entity.
(c) The confidentiality guidelines shall be consistent with guidelines published by the department and with state and federal law and regulations.
(d) An entity that does not adopt confidentiality guidelines as required by Subsection (b) is not eligible to receive state funds until the guidelines are developed and implemented.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.116. TESTING AND COUNSELING FOR STATE EMPLOYEES EXPOSED TO HIV INFECTION ON THE JOB. (a) On an employee's request, a state agency shall pay the costs of testing and counseling an employee of that agency concerning HIV infection if:
(1) the employee documents to the agency's satisfaction that the employee may have been exposed to HIV while performing duties of employment with that agency; and
(2) the employee was exposed to HIV in a manner that the United States Public Health Service has determined is capable of transmitting HIV.
(b) The board by rule shall prescribe the criteria that constitute possible exposure to HIV under this section. The criteria must be based on activities the United States Public Health Service determines pose a risk of HIV infection.
(c) For the purpose of qualifying for workers' compensation or any other similar benefits or compensation, an employee who claims a possible work-related exposure to HIV infection must provide the employer with a written statement of the date and circumstances of the exposure and document that, within 10 days after the date of the exposure, the employee had a test result that indicated an absence of HIV infection.
(d) The cost of a state employee's testing and counseling shall be paid from funds appropriated for payment of workers' compensation benefits to state employees. The director of the workers' compensation division of the attorney general's office shall adopt rules necessary to administer this subsection.
(e) Counseling or a test conducted under this section must conform to the model protocol on HIV counseling and testing prescribed by the department.
(f) A state employee who may have been exposed to HIV while performing duties of state employment may not be required to be tested.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER F. DEMONSTRATION PROJECTS ON NURSING CARE
§ 85.131. RESEARCH ON NURSING CARE. To ensure a continuum of nursing care for persons with AIDS or HIV infection and related conditions who require long-term nursing care but do not require hospitalization except for acute exacerbations of their condition, the Texas Department of Human Services shall develop one or more demonstration projects to research the cost and need for services that are appropriate to provide the special care necessary for those persons and for the specific medical complications resulting from AIDS or HIV infection.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.132. DEMONSTRATION PROJECTS IN NURSING FACILITIES. (a) The Texas Department of Human Services shall establish one or more demonstration projects in nursing facilities to:
(1) assist the Texas Department of Human Services in analyzing the cost of providing care for persons with AIDS or HIV infection and related conditions authorized by this subchapter;
(2) provide test sites in designated nursing facilities to study the costs and requirements of the operation of those facilities and the provision of appropriate nursing care and other related programs and services;
(3) demonstrate the extent of the need for facilities that can provide the long-term nursing care that is required by a person with AIDS or HIV infection and related conditions when those persons are not in need of hospitalization for an acute exacerbated condition;
(4) determine the extent of the individualized nursing care required to adequately meet the specific needs of persons with AIDS or HIV infection and related conditions without imposing the costs of providing those programs and services on all facilities that currently provide nursing care to persons whose needs are different than the needs of persons with AIDS or HIV infection and related conditions; and
(5) provide one or more teaching and demonstration models for caring for persons with AIDS or HIV infection and related conditions.
(b) Participants in the demonstration project are entitled to reimbursement at a special rate that covers all the cost of the care provided.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER G. POLICIES OF CORRECTIONAL AND LAW ENFORCEMENT AGENCIES, FIRE DEPARTMENTS, AND EMERGENCY MEDICAL SERVICES PROVIDERS
§ 85.141. MODEL POLICIES CONCERNING PERSONS IN CUSTODY. The department, in consultation with appropriate correctional and law enforcement agencies, fire departments, and emergency medical services providers, shall develop model policies regarding the handling, care, and treatment of persons with AIDS or HIV infection who are in the custody of the Texas Department of Criminal Justice, local law enforcement agencies, municipal and county correctional facilities, and district probation departments.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.142. ADOPTION OF POLICY. (a) Each state and local law enforcement agency, fire department, emergency medical services provider, municipal and county correctional facility, and district probation department shall adopt a policy for handling persons with AIDS or HIV infection who are in their custody or under their supervision.
(b) The policy must be substantially similar to a model policy developed by the department under Section 85.141.
(c) A policy adopted under this section applies to persons who contract or subcontract with an entity required to adopt the policy under Subsection (a).
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
§ 85.143. CONTENT OF POLICY. A policy adopted under this subchapter must:
(1) provide for periodic education of employees, inmates, and probationers concerning HIV;
(2) ensure that education programs for employees include information and training relating to infection control procedures and that employees have infection control supplies and equipment readily available; and
(3) ensure access to appropriate services and protect the confidentiality of medical records relating to HIV infection.
Added by Acts 1991, 72nd Leg., ch. 14, § 36, eff. Sept. 1, 1991.
SUBCHAPTER I. PREVENTION OF TRANSMISSION OF HIV AND HEPATITIS B VIRUS BY INFECTED HEALTH CARE WORKERS
§ 85.201. LEGISLATIVE FINDINGS. (a) The legislature finds that: (1) the Centers for Disease Control of the United States Public Health Service have made recommendations for preventing transmission of human immunodeficiency virus (HIV) and hepatitis B virus (HBV) to patients in the health care setting;
(2) the Centers for Disease Control of the United States Public Health Service have found that when health care workers adhere to recommended infection-control procedures, the risk of transmitting HBV from an infected health care worker to a patient is small, and the risk of transmitting HIV is likely to be even smaller;
(3) the risk of transmission of HIV and HBV in health care settings will be minimized if health care workers adhere to the Centers for Disease Control of the United States Public Health Service recommendations; and
(4) health care workers who perform exposure-prone procedures should know their HIV antibody status; health care workers who perform exposure-prone procedures and who do not have serologic evidence of immunity to HBV from vaccination or from previous infection should know their HBsAg status and, if that is positive, should also know their HBeAg status.
(b) Any testing for HIV antibody status shall comply with Subchapters C, D, and F, Chapter 81.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
§ 85.202. DEFINITIONS. In this subchapter: (1) "Exposure-prone procedure" means a specific invasive procedure that poses a direct and significant risk of transmission of HIV or hepatitis B virus, as designated by a health professional association or health facility, as provided by Section 85.204(b)(4).
(2) "Health care worker" means a person who furnishes health care services in direct patient care situations under a license, certificate, or registration issued by this state or a person providing direct patient care in the course of a training or educational program.
(3) "Invasive procedure" means: (A) a surgical entry into tissues, cavities, or organs; or (B) repair of major traumatic injuries associated with any of the following:
(i) an operating or delivery room, emergency department, or outpatient setting, including a physician's or dentist's office;
(ii) cardiac catheterization or angiographic procedures; (iii) a vaginal or cesarean delivery or other invasive obstetric procedure during which bleeding may occur; or
(iv) the manipulation, cutting, or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.
(4) "Universal precautions" means procedures for disinfection and sterilization of reusable medical devices and the appropriate use of infection control, including hand washing, the use of protective barriers, and the use and disposal of needles and other sharp instruments as those procedures are defined by the Centers for Disease Control of the United States Public Health Service.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
§ 85.203. INFECTION CONTROL STANDARDS. (a) All health care workers shall adhere to universal precautions as defined by this subchapter.
(b) Health care workers with exudative lesions or weeping dermatitis shall refrain from all direct patient care and from handling patient care equipment and devices used in performing invasive procedures until the condition resolves.
(c) All institutions of higher education and professional and vocational schools training health care workers shall provide instruction on universal precautions.
(d) Health care institutions shall establish procedures for monitoring compliance with universal precautions.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
§ 85.204. MODIFICATION OF PRACTICE. (a) Except as provided by Subsections (b) and (c), a health care worker who is infected with HIV or who is infected with hepatitis B virus and is HBeAg positive may not perform an exposure-prone procedure.
(b)(1) A health care worker who is infected with HIV or who is infected with hepatitis B virus and is HBeAg positive may perform an exposure-prone procedure only if the health care worker has sought counsel from an expert review panel and been advised under what circumstances, if any, the health care worker may continue to perform the exposure-prone procedure.
(2) An expert review panel should include the health care worker's personal physician and experts with knowledge of infectious diseases, infection control, the epidemiology of HIV and hepatitis B virus, and procedures performed by the health care worker.
(3) All proceedings and communications of the expert review panel are confidential and release of information relating to a health care worker's HIV status shall comply with Chapter 81.
(4) Health professional associations and health facilities should develop guidelines for expert review panels and identify exposure-prone procedures, as defined by this subchapter.
(c) A health care worker who performs an exposure-prone procedure as provided under Subsection (b) shall notify a prospective patient of the health care worker's seropositive status and obtain the patient's consent before the patient undergoes an exposure-prone procedure, unless the patient is unable to consent.
(d) To promote the continued use of the talents, knowledge, and skills of a health care worker whose practice is modified because of the worker's HIV or hepatitis B virus infection status, the worker should:
(1) be provided opportunities to continue patient care activities, if practicable; and
(2) receive career counseling and job retraining. (e) A health care worker whose practice is modified because of hepatitis B virus infection may request periodic redeterminations by the expert review panel under Subsection (b) of any change in the worker's HBeAg status due to resolution of infection or as a result of treatment.
(f) A health care worker who is infected with HIV or who is infected with hepatitis B virus and is HBeAg positive who performs invasive procedures not identified as exposure-prone should not have his or her practice restricted, provided the infected health care worker adheres to the standards for infection control provided in Section 85.203.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
§ 85.205. DISCIPLINARY PROCEDURES. A health care worker who fails to comply with this subchapter is subject to disciplinary procedures by the appropriate licensing entity.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
§ 85.206. RETENTION OF LICENSE; PERMITTED ACTS. This subchapter does not:
(1) require the revocation of the license, registration, or certification of a health care worker who is infected with HIV or hepatitis B virus;
(2) prohibit a health care worker who is infected with HIV or hepatitis B virus and who adheres to universal precautions, as defined by this subchapter, from:
(A) performing procedures not identified as exposure-prone; or (B) providing health care services in emergency situations; (3) prohibit a health care worker who is infected with HIV and who adheres to universal precautions from providing health care services, including exposure-prone procedures, to persons who are infected with HIV; or
(4) require the testing of health care workers.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.05, eff. Sept. 1, 1991.
SUBCHAPTER J. HOME COLLECTION KITS FOR HIV INFECTION TESTING
§ 85.251. DEFINITIONS. In this subchapter: (1) "Home collection kit" means a product sold to the general public and used by an individual to collect a specimen from the human body and to submit the specimen to a laboratory for testing and a report.
(2) "Service provider" means the manufacturer of a home collection kit or a person designated by the manufacturer to provide the services required by this subchapter.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.252. PROHIBITIONS RELATING TO HOME COLLECTION KIT. A person may not market, distribute, or sell a home collection kit for HIV infection testing in this state unless the kit complies with Chapter 431.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.253. PROHIBITIONS RELATING TO HOME TESTING. (a) A person may not market, distribute, or sell a product to be used by a member of the public to test a specimen collected from the human body for HIV infection unless the kit complies with Chapter 431.
(b) This section does not apply to a product marketed, distributed, or sold only to physicians or other persons authorized by law to test for HIV infection a specimen collected from the human body.
(c) A person may not require an individual to be tested for HIV infection as provided in Section 81.102.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.254. PACKAGE OF SERVICES. A home collection kit for HIV infection testing shall be sold as part of a package of services that includes:
(1) laboratory testing by a qualified facility; (2) reporting of test results; (3) verification of positive test results; (4) counseling as required by this subchapter; and (5) information, upon request, describing how test results and related information are stored by the service provider, how long the information is retained, and under what circumstances the information may be communicated to other persons.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.255. QUALIFIED FACILITY. A laboratory facility that conducts testing of a specimen collected with a home collection kit for HIV infection testing must comply with the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Section 263a).
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.256. ORAL REPORTING. A service provider shall report test results from a home collection kit for HIV infection testing orally to the individual tested. Notwithstanding Section 81.109, the test results may be provided by telephone.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.257. COUNSELING; COUNSELING PROTOCOLS. (a) A service provider shall provide pretesting counseling to an individual who is considering using a home collection kit for HIV infection testing. This counseling may be provided orally by telephone or through written information included with the home collection kit.
(b) At the time the test results are reported to the individual tested, the service provider shall provide counseling and appropriate referrals for care and treatment.
(c) Counseling provided by a service provider, including written information provided under Subsection (a) and referrals, must conform with counseling protocols adopted by the board. Except as provided by Section 85.256, the counseling protocols must be consistent with the requirements of Section 81.109 and the protocols adopted under Section 85.081.
(d) Counseling provided by a service provider under this section must be provided in English and in Spanish. The board may require a service provider to provide counseling in another language if the board finds that the service provider is marketing home collection kits in a community in which a significant portion of the population speaks a language other than English or Spanish.
(e) A service provider, in providing counseling, may not: (1) solicit the purchase of additional services or products; or (2) refer the individual being counseled to an entity: (A) that is owned or controlled by the service provider; (B) that owns or controls the service provider; (C) that is owned or controlled by an entity that owns or controls the service provider; or
(D) that has another ongoing financial relationship with the service provider.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.258. LABELING. (a) A home collection kit for HIV infection testing shall meet the requirements of Chapter 431.
(b) In addition to the requirements in Subsection (a), the labeling shall explain which persons and entities will have access to the test results for the individual.
(c) In addition to the labeling requirements in Subsections (a) and (b), a home collection kit labeled in Spanish must also be available. The board may require a service provider to label a home collection kit in another language if the board finds that the service provider is marketing home collection kits in a community in which a significant portion of the population speaks a language other than English or Spanish.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.259. ENFORCEMENT. A home collection kit for HIV infection testing is a "device" as that term is defined in Section 431.002 and is subject to the provisions for enforcement contained in Chapter 431. Any violation of the requirement in Section 85.258 shall be subject to the enforcement provisions of Chapter 431.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.260. CONFIDENTIALITY. (a) Any statement that an identifiable individual has or has not been tested with a home collection kit for HIV infection testing, including a statement or assertion that the individual is positive, is negative, is at risk, or has or does not have a certain level of antigen or antibody, is confidential as provided by Section 81.103.
(b) A person commits an offense if the person violates this section. The punishment for an offense under this section is the same as the punishment for an offense under Section 81.103.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.261. CERTAIN TECHNOLOGY PROHIBITED. A service provider may not use technology that permits the service provider to identify an individual to whom test results or counseling is provided or to identify the telephone number from which that individual is calling.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995.
§ 85.262. REPORTS. A service provider shall report test results from a home collection kit for HIV infection testing in the manner provided by Subchapter C, Chapter 81.
Added by Acts 1995, 74th Leg., ch. 33, § 1, eff. April 28, 1995. § 86.001. PURPOSE. It is the intent of the legislature that breast cancer patients have access to a standardized written summary, as provided under this subchapter, of medically efficacious and viable alternative treatments for breast cancer, which may include surgical, radiological, or chemotherapeutic treatment or combinations of those treatments.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991.
§ 86.002. STANDARDIZED WRITTEN SUMMARY. (a) The department shall publish a standardized written summary, in language a patient can understand, of the advantages, disadvantages, risks, and descriptions of all medically efficacious and viable alternatives for the treatment of breast cancer.
(b) The department shall update the summary annually, if necessary, to reflect changes in the treatment of breast cancer.
(c) The advisory council shall develop the summary.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991.
§ 86.003. ADVISORY COUNCIL. (a) The advisory council is appointed by the commissioner.
(b) The advisory council shall include at least one of each of the following:
(1) a representative of a statewide nonprofit organization that is an advocate for breast cancer patients;
(2) a representative of a statewide professional organization representing the full spectrum of physicians;
(3) a physician associated with an institution of higher education who specializes in the treatment of breast cancer; and
(4) a representative of the Texas Cancer Council.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991.
§ 86.004. DISTRIBUTION OF SUMMARY. (a) Not later than the 90th day after the date the department receives the standardized written summary from the advisory council, the department shall print and make available to all physicians in the state sufficient copies of the summary.
(b) A physician may distribute the summary to a patient when the physician determines in the physician's professional judgment that it is in the best interest of the patient to receive a copy of the summary.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991.
§ 86.005. FUNDING. (a) The department may not expend general revenue funds for the publication or distribution of the standardized written summary.
(b) The department may provide technical assistance to the advisory council to aid in the development of the summary.
(c) The department may accept grants, donations of money or materials, and other forms of assistance from private and public sources to be used solely for the development and distribution of the summary.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991.
SUBCHAPTER B. BREAST CANCER SCREENING
§ 86.011. BREAST CANCER SCREENING. (a) The Office of Rural Community Affairs may provide for breast cancer screening in counties with a population of 50,000 or less.
(b) The Office of Rural Community Affairs may provide the breast cancer screening through contracts with public or private entities to provide mobile units and on-site screening services.
(c) The Office of Rural Community Affairs shall coordinate the breast cancer screening with programs administered by the Texas Cancer Council.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 1424, § 9, eff. Sept. 1, 2001.
§ 86.012. ADVISORY COMMITTEE. (a) The board may appoint an advisory committee to advise the Office of Rural Health Care on the breast cancer screening, including targeting those areas of the state in which the screening is most needed.
(b) The advisory committee may be composed of: (1) physicians who practice in rural areas; (2) administrators of hospitals in rural areas; and (3) representatives of organizations formed to promote breast cancer awareness.
Added by Acts 1991, 72nd Leg., ch. 14, § 37, eff. Sept. 1, 1991. § 87.001. DEFINITIONS. In this chapter: (1) "Birth defect" means a physical or mental functional deficit or impairment in a human embryo, fetus, or newborn resulting from one or more genetic or environmental causes.
(2) "Communicable disease" has the meaning assigned by Section 81.003. (3) Repealed by Acts 1995, 74th Leg., ch. 76, § 8.134, eff. Sept. 1, 1995.
(4) "Environmental causes" means the sum total of all the conditions and elements that make up the surroundings and influence the development of an individual.
(5) "Harmful physical agent" has the meaning assigned by Section 503.001. (6) "Health professional" means an individual whose: (A) vocation or profession is directly or indirectly related to the maintenance of health in another individual; and
(B) duties require a specified amount of formal education and may require a special examination, certificate, or license or membership in a regional or national association.
(7) "Health facility" includes: (A) a general or special hospital licensed by the department under Chapter 241;
(B) a physician-owned or physician-operated clinic; (C) a publicly or privately funded medical school; (D) a state hospital or state school maintained and managed by the Texas Department of Mental Health and Mental Retardation;
(E) a genetic evaluation and counseling center; (F) a public health clinic conducted by a local health unit, health department, or public health district organized and recognized under Chapter 121;
(G) a physician peer review organization; and (H) another facility specified by board rule. (8) "Midwife" has the meaning assigned by Section 203.002, Occupations Code.
(9) "Local health unit" has the meaning assigned by Section 121.004. (10) "Toxic substance" has the meaning assigned by Section 503.001.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 8.134, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1420, § 14.774, eff. Sept. 1, 2001.
§ 87.002. CONFIDENTIALITY. (a) Except as specifically authorized by this chapter, reports, records, and information furnished to a department employee or to an authorized agent of the department that relate to cases or suspected cases of a health condition are confidential and may be used only for the purposes of this chapter.
(b) Reports, records, and information relating to cases or suspected cases of health conditions are not public information under Chapter 552, Government Code, and may not be released or made public on subpoena or otherwise except as provided by this chapter.
(c) The department may release medical, epidemiological, or toxicological information:
(1) for statistical purposes, if released in a manner that prevents the identification of any person;
(2) with the consent of each person identified in the information or, if the person is a minor, the minor's parents, managing conservator, guardian, or other person who is legally authorized to consent;
(3) to medical personnel, appropriate state agencies, health authorities, regional directors, and public officers of counties and municipalities as necessary to comply with this chapter and board rules relating to the identification, monitoring, and referral of children with birth defects;
(4) to appropriate federal agencies, such as the Centers for Disease Control of the United States Public Health Service; or
(5) to medical personnel to the extent necessary to protect the health or life of the child identified in the information.
(d) A board member, the commissioner, another employee of the department, or an authorized agent may not be examined in a civil, criminal, special, or other proceeding as to the existence or contents of pertinent records of or reports or information about a child identified or monitored for a birth defect by the department without the consent of the child's parents, managing conservator, guardian, or other person authorized by law of this state or another state or by a court order to give consent.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(88), 8.130, eff. Sept. 1, 1995.
§ 87.003. CONTRACTS. The department may enter into contracts or agreements with persons as necessary to implement this chapter. The contracts or agreements may provide for payment by the state for supplies, equipment, data, and data collection and other services.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.004. LIMITATION OF LIABILITY. A health professional, a health facility, or an administrator, officer, or employee of a health facility subject to this chapter is not civilly or criminally liable for divulging information required to be released under this chapter, except in a case of gross negligence or wilful misconduct.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.005. COOPERATION OF GOVERNMENTAL ENTITIES. Another state board, commission, agency, or governmental entity capable of assisting the department in carrying out the intent of this chapter shall cooperate with the department and furnish expertise, services, and facilities to the program.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. BIRTH DEFECTS MONITORING PROGRAM
§ 87.021. SURVEILLANCE PROGRAM; REGISTRY ESTABLISHED. (a) The board shall establish in the department a program to:
(1) identify and investigate certain birth defects in children; and (2) maintain a central registry of cases of birth defects. (b) The board may authorize the department to implement a statewide program or to limit the program to a part or all of one or more public health regions, depending on the funding available to the department. In establishing the program, the board shall consider:
(1) the number and geographic distribution of births in the state; (2) the trained personnel and other departmental resources that may be assigned to the program activities; and
(3) the occurrence or probable occurrence of an urgent situation that requires or will require an unusual commitment of the department's personnel and other resources.
(c) The board and the department shall design the program so that the program will:
(1) provide information to identify risk factors and causes of birth defects;
(2) provide information on other possible causes of birth defects; (3) provide for the development of strategies to prevent birth defects; (4) provide for interview studies about the causes of birth defects; (5) together with other departmental programs, contribute birth defects data to a central registry;
(6) provide for the appointment of authorized agents to collect birth defects information; and
(7) provide for the active collection of birth defects information. (d) The board shall adopt rules to govern the operation of the program and carry out the intent of this chapter. At a minimum, the rules shall:
(1) use a medically recognized system to specify the birth defects to be identified and investigated;
(2) select a system for classifying the birth defects according to the public health significance of each defect to prioritize the use of resources;
(3) develop a system to select and specify the cases to be investigated; (4) specify a system for selecting the demographic areas in which the department may undertake investigations; and
(5) prescribe the training and experience a person must have for appointment as an authorized agent of the department.
(e) In adopting the rules required by Subsection (d), the board shall consider at least:
(1) the known incidence and prevalence rates of a birth defect in the state or portions of the state;
(2) the known incidence and prevalence rates of a particular birth defect in specific population groups who live in the state or portions of the state;
(3) the morbidity and mortality resulting from the birth defect; and (4) the existence, cost, and availability of a strategy to prevent and treat the birth defect.
(f) In addition to providing for the active collection of birth defects information under Subsection (c)(7), the board and the department may design the program to also provide for the passive collection of that information.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 1042, § 1, eff. June 20, 2003.
§ 87.022. DATA COLLECTION. (a) To ensure an accurate source of data necessary to investigate the incidence, prevalence, and trends of birth defects, the board may require a health facility, health professional, or midwife to make available for review by the department or by an authorized agent medical records or other information that is in the facility's, professional's, or midwife's custody or control and that relates to the occurrence of a birth defect specified by the board.
(b) The board by rule shall prescribe the manner in which records and other information are made available to the department.
(c) The board shall adopt procedural rules to facilitate cooperation between the health care facility, health professional, or midwife and a department employee or authorized agent, including rules for notice, requests for medical records, times for record reviews, and record management during review.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.023. REFERRAL FOR SERVICES. A child who meets the medical criteria prescribed by board rule, and the child's family, shall be referred to the department's case management program for guidance in applying for financial or medical assistance available through existing state and federal programs.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
SUBCHAPTER C. INVESTIGATIONS AND INSPECTIONS
§ 87.041. INVESTIGATIONS. (a) The department may conduct investigations, including epidemiological or toxicological investigations, of cases of specified birth defects.
(b) The department may conduct these investigations to determine the nature and extent of the disease or the known or suspected cause of the birth defect and to formulate and evaluate control measures to protect the public health. The department's investigation is not limited to geographic, temporal, or occupational associations and may include investigation of past exposures.
(c) A person shall provide medical, demographic, epidemiological, toxicological, and environmental information to the department under this chapter.
(d) A person is not liable in damages or other relief for providing medical or other confidential information to the department during an epidemiological or toxicological investigation.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.042. DEPARTMENTAL INVESTIGATORY POWERS. To conduct an investigation under this chapter, the commissioner or the commissioner's designee has the same authority to enter, inspect, investigate, and take samples and to do so in the same manner as is provided for communicable diseases under Sections 81.061, 81.063, 81.064, and 81.065.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 8.132, eff. Sept. 1, 1995.
SUBCHAPTER D. CENTRAL REGISTRY
§ 87.061. REGISTRY; CONFIDENTIALITY. (a) Information collected and analyzed by the department or an authorized agent under this chapter may be placed in a central registry to facilitate research and to maintain security. The department may also store information available from other departmental programs and information from other reporting systems and health care providers.
(b) The department shall use the registry to: (1) investigate the causes of birth defects and other health conditions as authorized by Texas statutes;
(2) design and evaluate measures to prevent the occurrence of birth defects and other health conditions; and
(3) conduct other investigations and activities necessary for the board and department to fulfill their obligation to protect the health of the public.
(c) The department may store in the central registry information that is obtained from the section of the birth certificate entitled "For Medical and Health Use Only." This information may be used only as provided by Section 191.002(b), relating to the form and contents of the birth certificate.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.062. ACCESS TO INFORMATION. (a) Access to the central registry information is limited to authorized department employees and other persons with a valid scientific interest who are engaged in demographic, epidemiological, or other studies related to health and who agree in writing to maintain confidentiality.
(b) The department shall maintain a listing of each person who is given access to the information in the central registry. The listing shall include:
(1) the name of the person authorizing access; (2) the name, title, and organizational affiliation of each person given access;
(3) the dates of access; and (4) the specific purpose for which the information was used. (c) The listing is public information, is open to the public under Chapter 552, Government Code, and may be inspected during the department's normal hours of operation.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept. 1, 1995.
§ 87.063. RESEARCH; REVIEW AND APPROVAL. (a) The commissioner and the department's committee for the protection of human subjects shall review each research proposal that requests the use of information in the central registry. The board shall adopt rules establishing criteria to be used in deciding if the research design should be approved. A proposal that meets the approval criteria is considered to establish a valid interest as required by Section 87.062(a), and the commissioner and the committee shall authorize the researcher to review the records relevant to the research proposal and to contact cases and controls.
(b) If an investigator using central registry data under a research design approved under this section believes it is necessary to contact case subjects and controls, the investigator must submit a protocol describing the purpose and method to the commissioner and the department's committee for the protection of human subjects. If the contact protocol is approved, the investigator is considered to have established a bona fide research, development, or planning purpose and is entitled to carry out the contacts without securing additional approvals or waivers from any entity.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 8.133, eff. Sept. 1, 1995.
§ 87.064. REPORT OF CENTRAL REGISTRY ACTIVITIES AND FINDINGS. (a) The department shall publish an annual report of activities using data contained in the central registry. The report shall include:
(1) a description of research projects in progress since the last report and the sponsors and principal investigators directing each project;
(2) results of the completed research projects either as an abstract or a complete scientific paper that has been reviewed and approved by an appropriate jury;
(3) a summary of the statistical information compiled in the registry, including a specific discussion of any clusters, high or low incidences, or prevalences or trends encountered;
(4) any policy, research, educational, or other recommendations the department considers appropriate; and
(5) such other information the editors of the report find is appropriate. (b) The department may publish periodic reports in addition to the annual report.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993.
§ 87.065. COORDINATION WITH MEXICO. In developing the central registry and conducting research in areas of this state that border Mexico, the department shall make every effort to coordinate its efforts with similar efforts and research programs in Mexico.
Added by Acts 1993, 73rd Leg., ch. 602, § 1, eff. Sept. 1, 1993. § 88.001. DEFINITIONS. In this chapter: (1) "Child care" includes a school, preschool, kindergarten, nursery school, or other similar activity that provides care or instruction for young children.
(2) "Child care facility" means a public place or a residence in which a person furnishes child care.
(3) "Health authority" means a physician appointed as such under Chapter 121.
(4) "Health professional" means an individual whose: (A) vocation or profession is directly or indirectly related to the maintenance of health in another individual; and
(B) duties require a specified amount of formal education and may require a special examination, certificate or license, or membership in a regional or national association.
(5) "Lead" includes metallic lead and materials containing metallic lead with a potential for release in sufficient concentrations to pose a threat to public health.
(6) "Blood lead levels of concern" means the presence of blood lead concentrations suspected to be associated with mental and physical disorders due to absorption, ingestion, or inhalation of lead as specified in the most recent criteria issued by the United States Department of Health and Human Services, United States Public Health Service, Centers for Disease Control and Prevention of the United States Public Health Service.
(7) "Lead poisoning" means the presence of a confirmed venous blood level established by board rule in the range specified for medical evaluation and possible pharmacologic treatment in the most recent criteria issued by the United States Department of Health and Human Services, United States Public Health Service, Centers for Disease Control and Prevention of the United States Public Health Service.
(8) "Local health department" means a department created under Chapter 121.
(9) "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners.
(10) "Public health district" means a district created under Chapter 121. (11) "Regional director" means a physician appointed by the board as the chief administrative officer of a public health region under Chapter 121.
(12) "Board" means the Texas Board of Health.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996. Amended by Acts 2003, 78th Leg., ch. 740, § 3, eff. Sept. 1, 2003.
§ 88.002. CONFIDENTIALITY. (a) Except as specifically authorized by this chapter, reports, records, and information furnished to a health authority, a regional director, or the department that relate to cases or suspected cases of children with blood lead levels of concern or lead poisoning are confidential and may be used only for the purposes of this chapter.
(b) Reports, records, and information relating to cases or suspected cases of childhood lead poisoning and children with blood lead levels of concern are not public information under the open records law, Chapter 552, Government Code, and may not be released or made public on subpoena or otherwise except as provided by this chapter.
(c) Medical, epidemiologic, or toxicologic information may be released: (1) for statistical purposes if released in a manner that prevents the identification of any person;
(2) with the consent of each person identified in the information; (3) to medical personnel, appropriate state agencies, health authorities, regional directors, and public officers of counties and municipalities as necessary to comply with this chapter and related rules;
(4) to appropriate federal agencies, such as the Centers for Disease Control and Prevention of the United States Public Health Service, except that the information must be limited to the information requested by the agency; or
(5) to medical personnel to the extent necessary in a medical emergency to protect the health or life of the child identified in the information.
(d) The commissioner, a regional director or other department employee, a health authority or employee of a public health district, a health authority or employee of a county or municipal health department, or a public official of a county or municipality may not be examined in a civil, criminal, special, or other proceeding as to the existence or contents of pertinent records of or reports or information about a child identified, examined, or treated for lead poisoning or about a child possessing blood lead levels of concern by the department, a public health district, a local health department, or a health authority without the consent of the child's parents, managing conservator, guardian, or other person authorized by law to give consent.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996.
§ 88.0025. CHILDHOOD LEAD POISONING PREVENTION. The board may implement policies and procedures to promote the elimination of childhood lead poisoning within the state. The board may adopt measures to:
(1) significantly reduce the incidence of childhood lead poisoning throughout the state;
(2) improve public awareness of lead safety issues and educate both property owners and tenants about practices that can reduce the incidence of lead poisoning; and
(3) encourage the testing of children likely to suffer the consequences of lead poisoning so that prompt diagnosis and treatment and the prevention of harm are possible.
Added by Acts 2003, 78th Leg., ch. 740, § 4, eff. Sept. 1, 2003.
§ 88.003. REPORTABLE HEALTH CONDITION. (a) Childhood blood lead levels of concern are reportable.
(b) The board by rule may designate: (1) blood lead concentrations in children that must be reported; and (2) the ages of children for whom the reporting requirements apply. (c) The board may adopt rules that establish a registry of children with blood lead levels of concern and lead poisoning.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996.
§ 88.004. PERSONS REQUIRED TO REPORT. (a) A person required to report childhood blood lead levels of concern shall report to the department in the manner specified by board rule. Except as provided by this section, a person required by this section to report must make the report immediately after the person gains knowledge of the case or suspected case of a child with a blood lead level of concern.
(b) A physician shall report a case or suspected case of childhood lead poisoning or of a child with a blood lead level of concern after the physician's first examination of a child for whom reporting is required by board rule.
(c) A person in charge of an independent clinical laboratory, a hospital or clinic laboratory, or other facility in which a laboratory examination of a specimen derived from the human body yields evidence of a child with a blood lead level of concern shall report the findings to the department as required by board rule.
(d) If a report is not made as required by Subsection (b) or (c), the following persons shall report a case or suspected case of a child with lead poisoning or a blood lead level of concern and all information known concerning the child:
(1) the administrator of a hospital licensed under Chapter 241; (2) a professional registered nurse; (3) an administrator or director of a public or private child care facility;
(4) an administrator of a home health agency; (5) an administrator or health official of a public or private institution of higher education;
(6) a superintendent, manager, or health official of a public or private camp, home, or institution;
(7) a parent, managing conservator, or guardian; and (8) a health professional.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996.
§ 88.005. REPORTING PROCEDURES. (a) The board shall prescribe the form and method of reporting under this chapter, including a report in writing, by telephone, or by electronic data transmission.
(b) Board rules may require the reports to contain any information relating to a case that is necessary for the purposes of this chapter, including:
(1) the child's name, address, age, sex, and race; (2) the child's blood lead concentration; (3) the procedure used to determine the child's blood lead concentration; and
(4) the name of the attending physician. (c) The commissioner may authorize an alternate routing of information in particular cases if the commissioner determines that the customary reporting procedure would cause the information to be unduly delayed.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996.
§ 88.006. REPORTS OF HOSPITALIZATION; DEATH. (a) A physician who attends a child during the child's hospitalization shall immediately notify the department if the physician knows or suspects that the child has lead poisoning or a blood lead level of concern and the physician believes the lead poisoning or blood lead level of concern resulted from the child's exposure to a dangerous level of lead that may be a threat to the public health.
(b) A physician who attends a child during the child's last illness shall immediately notify the department if the physician:
(1) knows or suspects that the child died of lead poisoning; and (2) believes the lead poisoning resulted from the child's exposure to a dangerous level of lead that may be a threat to the public health.
(c) An attending physician, health authority, or regional director, with the consent of the child's survivors, may request an autopsy if the physician, health authority, or regional director needs further information concerning the cause of death in order to protect the public health. The health authority or regional director may order the autopsy to determine the cause of death if the child's survivors do not consent to the autopsy. The autopsy results shall be reported to the department.
(d) A justice of the peace acting as coroner or a medical examiner in the course of an inquest under Chapter 49, Code of Criminal Procedure, who finds that a child's cause of death was lead poisoning that resulted from exposure to a dangerous level of lead that the justice of the peace or medical examiner believes may be a threat to the public health shall immediately notify the health authority or the regional director in the jurisdiction in which the finding is made.
Added by Acts 1995, 74th Leg., ch. 965, § 52, eff. Jan. 1, 1996. § 89.001. DEFINITIONS. In this chapter: (1) "Community corrections facility" means a facility established under Chapter 509, Government Code.
(2) "County jail" means a facility operated by or for a county for the confinement of persons accused or convicted of an offense and includes:
(A) a facility operated by or for a county for the confinement of persons accused or convicted of an offense;
(B) a county jail or a correctional facility authorized by Subchapter F, Chapter 351, Local Government Code; and
(C) a county correctional center authorized by Subchapter H, Chapter 351, Local Government Code.
(3) "Governing body" means: (A) the commissioners court of a county, for a county jail; (B) the district judges governing a community corrections facility, for a community corrections facility;
(C) the governing body of a municipality, for a jail operated by or under contract to a municipality; or
(D) the community supervision and corrections department, for a jail operated under contract to a community supervision and corrections department.
(4) "Health authority" has the meaning assigned by Section 121.021. (5) "Jail" means: (A) a county jail; or (B) a facility for the confinement of persons accused of an offense that is:
(i) operated by a municipality or a vendor under contract with a municipality under Subchapter E, Chapter 351, Local Government Code; or
(ii) operated by a vendor under contract with a community supervision and corrections department under Chapter 76, Government Code.
(6) "Local health department" means a health department created under Subchapter D, Chapter 121. (7) "Physician" means a person licensed to practice medicine in a state of the United States.
(8) "Public health district" means a health district established under Subchapter E, Chapter 121. (9) "Screening test" means a rapid analytical laboratory or other procedure to determine the need for further diagnostic evaluation.
(10) "Tuberculosis" means a disease caused by Mycobacterium tuberculosis or other members of the Mycobacterium tuberculosis complex.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 7.07, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 348, § 1, eff. Sept. 1, 1997.
§ 89.002. SCOPE OF CHAPTER. Except as provided by Subchapter E, this chapter applies only to a jail that:
(1) has a capacity of at least 100 beds; or (2) houses inmates: (A) transferred from a county that has a jail that has a capacity of at least 100 beds; or
(B) from another state.
Added by Acts 1997, 75th Leg., ch. 348, § 2, eff. Sept. 1, 1997.
SUBCHAPTER B. SCREENING OF JAIL EMPLOYEES AND VOLUNTEERS
§ 89.011. SCREENING OF JAIL EMPLOYEES AND VOLUNTEERS. (a) The governing body of a jail or community corrections facility, through the community supervision and corrections department, shall require that each employee or volunteer working or providing services in a jail or a community corrections facility, who meets the screening guidelines prescribed by board rule, present to the governing body a certificate signed by a physician that states that:
(1) the employee or volunteer has been tested for tuberculosis infection in accordance with board rules; and
(2) the results of the test indicate that the person does not have tuberculosis.
(b) In lieu of a screening test, an employee or volunteer with a history of a positive screening test may provide:
(1) documentation of that positive test result and of any diagnostic and therapeutic follow-up; and
(2) a certificate signed by a physician that states that the person does not have tuberculosis.
(c) The health authority may require an employee or volunteer to have an additional screening test or medical examination if the department determines that an additional test or examination is necessary and appropriate to protect the public health.
(d) An employee or volunteer is exempt from the screening test required by this section if:
(1) the screening test conflicts with the tenets of an organized religion to which the individual belongs; or
(2) the screening test is medically contraindicated based on an examination by a physician.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 3, eff. Sept. 1, 1997.
§ 89.012. FOLLOW-UP EVALUATIONS AND TREATMENT. (a) An employee or a volunteer with a positive screening test result must obtain a diagnostic evaluation from the person's own physician to determine if the person has tuberculosis.
(b) If the employee or volunteer has tuberculosis, the governing body may not permit the person to begin or continue the person's employment duties or volunteer services unless the person is under treatment for the disease by a physician and the person provides to the governing body a certificate signed by the attending physician stating that the patient is noninfectious.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 4, eff. Sept. 1, 1997.
§ 89.013. CERTIFICATE REQUIRED. (a) The governing body or a designee of the governing body shall confirm that each employee or volunteer required to be screened under this subchapter has the required certificate.
(b) The governing body may not permit an employee or volunteer to carry out the person's duties if the person does not have the required certificate.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 5, eff. Sept. 1, 1997.
§ 89.014. COST OF TESTS, FOLLOW-UP, AND TREATMENT. The employee or volunteer shall pay the expense of a screening test, diagnostic evaluation, or other professional medical service required under this subchapter unless the commissioners court, the governing body of a municipality, or a local health department or public health district elects to provide the service.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 5, eff. Sept. 1, 1997.
SUBCHAPTER C. INMATE SCREENING AND TREATMENT
§ 89.051. INMATE SCREENING REQUIRED. (a) Each inmate in a jail or community corrections facility shall undergo a screening test for tuberculosis infection approved by the board if:
(1) the inmate will probably be confined in jail or a community corrections facility for more than seven days; and
(2) the inmate meets the screening guidelines prescribed by board rules. (b) The inmate must be tested on or before the seventh day after the day the inmate is first confined.
(c) An inmate listed by Subsection (a) is not required to be retested at each rebooking if the inmate is booked into a jail or a community corrections facility more than once during a 12-month period unless the inmate shows symptoms of tuberculosis or is known to have been exposed to tuberculosis.
(d) An inmate is exempt from the screening test required by this section if:
(1) the screening test conflicts with the tenets of an organized religion to which the individual belongs; or
(2) the screening test is medically contraindicated based on an examination by a physician.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 6, eff. Sept. 1, 1997.
§ 89.052. RESCREENING; DIAGNOSTIC EVALUATIONS. The department or a health authority may require a governing body to provide an additional screening test or a diagnostic evaluation if the department or health authority determines that an additional screening test or a diagnostic evaluation is necessary and appropriate to protect the health of the jail inmates, employees, volunteers, or the public.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 7, eff. Sept. 1, 1997.
§ 89.053. FOLLOW-UP EVALUATIONS. (a) If an inmate has a confirmed positive screening test result, the governing body shall provide a diagnostic evaluation to determine whether the inmate has tuberculosis.
(b) The sheriff, jail administrator, or director of the community corrections facility shall provide appropriate accommodations to an inmate who has tuberculosis or is suspected of having tuberculosis, including respiratory isolation, if necessary, and adequate medical care and treatment that meet the accepted standards of medical practice.
(c) The jail or community corrections facility shall provide preventive therapy to an infected inmate if the preventive therapy is prescribed by the attending physician and the inmate consents to the treatment.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 8, eff. Sept. 1, 1997.
§ 89.054. INMATE TRANSFER AND RELEASE. A copy of an inmate's medical records or documentation of screenings or treatment received during confinement must accompany an inmate transferred from one jail or community corrections facility to another or the Texas Department of Criminal Justice and be available for medical review on arrival of the inmate.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993.
SUBCHAPTER D. REPORTING; RULEMAKING; MINIMUM STANDARDS
§ 89.071. REPORTING. (a) A case of tuberculosis shall be reported to the appropriate health authority or to the department not later than the third day after the day on which the diagnosis is suspected.
(b) The results of a screening test shall be reported to the department monthly in a manner approved by the department.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993.
§ 89.072. RULEMAKING. The department shall recommend to the Commission on Jail Standards and the Texas Department of Criminal Justice rules to carry out this chapter, including rules describing:
(1) the types of screening tests and diagnostic evaluations and the scope of the professional examinations that may be used to meet the requirements of this chapter;
(2) the categories of employees, volunteers, or inmates who must have a screening test under this chapter;
(3) the form and content of the certificate required under Subchapter B for employees and volunteers;
(4) the deadlines for filing a certificate; (5) the transfer of employee or volunteer certificates and inmate records between facilities;
(6) the frequency of screening tests for employees, volunteers, and inmates;
(7) the criteria for requiring an additional screening test or a diagnostic evaluation or examination; and
(8) the reporting of a screening test or an evaluation or examination result to the appropriate health authority or to the department.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 9, eff. Sept. 1, 1997.
§ 89.073. ADOPTION OF LOCAL STANDARDS. (a) The standards prescribed by this chapter and the rules adopted by the board relating to screening tests or examinations for tuberculosis required for certain employees and volunteers are minimum standards.
(b) With the prior approval of the department: (1) a governing body may adopt and enforce standards for carrying out this chapter if the standards are compatible with and equal to or more stringent than the standards prescribed by this chapter and the board's rules; and
(2) a private facility may adopt and enforce standards for carrying out this chapter if the standards are compatible with and equal to or more stringent than the standards prescribed by this chapter and the board's rules.
(c) The board shall adopt substantive and procedural rules to govern the submission of standards adopted under Subsection (b). At a minimum these rules must contain:
(1) a procedure for the submission of standards for departmental review; and
(2) an internal departmental appeal process by which a governing body or private entity may seek a review of the department's decision to reject proposed standards.
Added by Acts 1993, 73rd Leg., ch. 786, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 348, § 10, eff. Sept. 1, 1997.
SUBCHAPTER E. CONTINUITY OF CARE
§ 89.101. DEFINITIONS. In this subchapter: (1) "Corrections facility" means: (A) a jail or community corrections facility, without regard to whether the jail or facility satisfies the requirements of Section 89.002;
(B) any correctional facility operated by or under contract with a division of the Texas Department of Criminal Justice; or
(C) a detention facility operated by the Texas Youth Commission. (2) "Offender" means a juvenile or adult who is arrested or charged with a criminal offense.
Added by Acts 1997, 75th Leg., ch. 348, § 11, eff. Sept. 1, 1997.
§ 89.102. REPORT OF RELEASE. A corrections facility shall report to the department the release of an offender who is receiving treatment for tuberculosis. The department shall arrange for continuity of care for the offender.
Added by Acts 1997, 75th Leg., ch. 348, § 11, eff. Sept. 1, 1997. § 90.001. FINDINGS. The legislature finds that: (1) osteoporosis, a bone-thinning disease, is a major public health problem that, in many cases, remains undiagnosed, resulting in fractures, pain, disability, and immobility;
(2) early detection and prevention are critical health care strategies for those at risk of osteoporosis; and
(3) it is in the public interest of this state to promote public awareness of the benefits and value of the early detection, prevention, and appropriate treatment of osteoporosis.
Added by Acts 1995, 74th Leg., ch. 71, § 1, eff. May 11, 1995.
§ 90.002. OSTEOPOROSIS PROGRAM. Using existing resources, the department shall educate the public on the causes of osteoporosis and the personal risk factors associated with the development of osteoporosis, publicize the value of early detection and prevention, and identify the most cost-effective options available for treatment.
Added by Acts 1995, 74th Leg., ch. 71, § 1, eff. May 11, 1995.
§ 90.003. TASK FORCE. (a) In developing the program created by Section 90.002, the commissioner may appoint a task force to make recommendations on strategies for educating the public on the health benefits of early detection and prevention of osteoporosis.
(b) Members of the task force are not entitled to compensation, a per diem, or expense reimbursement for their service on the task force.
Added by Acts 1995, 74th Leg., ch. 71, § 1, eff. May 11, 1995. § 91.001. FINDINGS. The legislature finds that: (1) prostate cancer is a major public health problem with an estimated 13,000 Texans to be diagnosed each year resulting in over 2,200 Texans dying each year;
(2) African Americans have the highest incidence of prostate cancer in the state;
(3) early detection through annual checkups and testing are critical to the preservation of life and to health care strategies for those at risk of prostate cancer; and
(4) it is in the public interest of this state to promote public awareness of the benefits and value of the early detection, prevention, and treatment of prostate cancer.
Added by Acts 1995, 74th Leg., ch. 793, § 1, eff. June 16, 1995. Amended by Acts 1999, 76th Leg., ch. 990, § 1, eff. Sept. 1, 1999.
§ 91.002. PROSTATE CANCER STRATEGY. (a) In consultation with the board, the commissioner shall develop and implement a program that educates the public on the causes of prostate cancer and the factors associated with the development of prostate cancer. This program must include components designed to reach high-risk populations that reflect the nature of and trends in prostate cancer morbidity and mortality rates in high-risk groups in this state.
(b) The program shall also publicize the value and methods of early detection and prevention and identify the options available for treatment.
Added by Acts 1995, 74th Leg., ch. 793, § 1, eff. June 16, 1995. Amended by Acts 1999, 76th Leg., ch. 990, § 2, eff. Sept. 1, 1999.
§ 91.003. TASK FORCE. (a) Using existing resources in developing the program created by Section 91.002, the commissioner shall appoint a task force to make recommendations on strategies for educating the public on the health benefits of the early detection, prevention, and treatment of prostate cancer.
(b) Members of the task force are not entitled to compensation, per diem, or expense reimbursement for their service on the task force.
Added by Acts 1995, 74th Leg., ch. 793, § 1, eff. June 16, 1995. § 92.001. DEFINITIONS. In this chapter: (1) "Injury" means damage to the body that results from intentional or unintentional acute exposure to thermal, mechanical, electrical, or chemical energy or from the absence of essentials such as heat or oxygen.
(2) "Reportable injury" means an injury or condition required to be reported under this subchapter.
(3) "Traumatic brain injury" means an acquired injury to the brain, including brain injuries caused by anoxia due to near drowning. The term does not include brain dysfunction caused by congenital or degenerative disorders or birth trauma.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.001 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.001 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 893, § 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1088, § 3, eff. Sept. 1, 2003.
§ 92.002. REPORTABLE INJURY; RULES. (a) Spinal cord injuries, traumatic brain injuries, and submersion injuries are reportable to the department. The board by rule shall define those terms for reporting purposes.
(b) The board may adopt rules that require other injuries to be reported under this subchapter.
(c) The board shall maintain and revise, as necessary, the list of reportable injuries.
(d) The board shall adopt rules necessary to administer this subchapter.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.002 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.002 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 893, § 2, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1088, § 4, eff. Sept. 1, 2003.
§ 92.003. REPORTING REQUIREMENTS. (a) The following persons shall report cases or suspected cases of reportable injuries to the department:
(1) a physician who diagnoses or treats a reportable injury; and (2) a medical examiner or justice of the peace. (b) The department may contact a physician attending a person with a case or suspected case of a reportable injury.
(c) The board shall prescribe the form and method of reporting. The board may require the reports to contain any information, including the person's name, address, age, sex, race, occupation, employer, and attending physician, necessary to achieve the purposes of this subchapter.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.003 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.003 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 893, § 3, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1088, § 5, eff. Sept. 1, 2003.
§ 92.004. POWERS AND DUTIES OF DEPARTMENT. (a) The department may enter into contracts or agreements as necessary to carry out this subchapter. The contracts or agreements may provide for payment by the state for materials, equipment, and services.
(b) The department may seek, receive, and spend any funds received through appropriations, grants, donations, or contributions from public or private sources for the purpose of identifying, reporting, or preventing those injuries that have been determined by the board to be harmful or to be a threat to the public health.
(c) Subject to the confidentiality provisions of this subchapter, the department shall evaluate the reports of injuries to establish the nature and magnitude of the hazards associated with those injuries, to reduce the occurrence of those risks, and to establish any trends involved.
(d) The department may make inspections and investigations as authorized by this subchapter and other law.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.004 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.004 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 1088, § 6, eff. Sept. 1, 2003.
§ 92.005. ACCESS TO INFORMATION. Subject to the confidentiality provisions of this subchapter, the department may collect, or cause to be collected, medical, demographic, or epidemiologic information from any medical or laboratory record or file to help the department in the epidemiologic investigation of injuries and their causes.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.005 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.005 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 1088, § 7, eff. Sept. 1, 2003.
§ 92.006. CONFIDENTIALITY. (a) All information and records relating to injuries are confidential, including information from injury investigations. That information may not be released or made public on subpoena or otherwise, except that release may be made:
(1) for statistical purposes, but only if a person is not identified; (2) with the consent of each person identified in the information released; or
(3) to medical personnel in a medical emergency to the extent necessary to protect the health or life of the named person.
(b) The board shall adopt rules establishing procedures to ensure that all information and records maintained by the department under this subchapter are kept confidential and protected from release to unauthorized persons.
(c) The director, the director's designee, or an employee of the department may not be examined in a judicial or other proceeding about the existence or contents of pertinent records of, investigation reports of, or reports or information about a person examined or treated for an injury without that person's consent.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.006 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.006 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 1088, § 8, eff. Sept. 1, 2003.
§ 92.007. INVESTIGATIONS. (a) The department shall investigate the causes of injuries and methods of prevention.
(b) The director or the director's designee may enter at reasonable times and inspect within reasonable limits a public place or building, including a public conveyance, in the director's duty to prevent an injury.
(c) The director or the director's designee may not enter a private residence to conduct an investigation about the causes of injuries without first receiving permission from a lawful adult occupant of the residence.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.007 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.007 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997.
§ 92.008. TECHNICAL ADVISORY COMMITTEE ON INJURY REPORTING. (a) The board shall appoint a technical advisory committee to advise the board of injuries other than spinal cord injuries, traumatic brain injuries, and submersion injuries that should be required by rule to be reported under this subchapter.
(b) The technical advisory committee is composed of: (1) three doctors of medicine or doctors of osteopathic medicine licensed to practice in this state; and
(2) three hospital representatives, one of whom must be a public hospital representative.
(c) A technical advisory committee member serves at the pleasure of the board.
(d) A vacancy on the technical advisory committee is filled by the board in the same manner as other appointments to the advisory committee.
(e) A member of the technical advisory committee is not entitled to reimbursement for expenses incurred in performing duties under this subchapter.
(f) The technical advisory committee may elect a chairman, vice-chairman, and secretary from among its members and may adopt rules to conduct its activities.
(g) The technical advisory committee is entitled to review and comment on the board's rules under Section 92.002(b) before the rules are proposed.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.008 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.008 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 893, § 4, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1088, § 9, eff. Sept. 1, 2003.
§ 92.009. COORDINATION WITH TEXAS DEPARTMENT OF INSURANCE. The department and the Texas Department of Insurance shall enter into a memorandum of understanding which shall include the following:
(1) the department and the Texas Department of Insurance shall exchange relevant injury data on an ongoing basis notwithstanding Section 92.006;
(2) confidentiality of injury data provided to the department by the Texas Department of Insurance is governed by Subtitle A, Title 5, Labor Code; (3) confidentiality of injury data provided to the Texas Department of Insurance by the department is governed by Section 92.006; and
(4) cooperation in conducting investigations of work-related injuries.
Added by Acts 1993, 73rd Leg., ch. 41, § 1, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Health & Safety Code § 87.009 by Acts 1995, 74th Leg., ch. 76, § 17.01(18), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Health and Safety Code § 88.009 by Acts 1997, 75th Leg., ch. 165, § 31.01(53), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 893, § 5, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 265, § 6.101, eff. Sept. 1, 2005.
§ 92.010. COORDINATION WITH TEXAS REHABILITATION COMMISSION. The department and the Texas Rehabilitation Commission shall enter into a memorandum of understanding to:
(1) exchange relevant injury data on an ongoing basis notwithstanding Section 92.006;
(2) maintain the confidentiality of injury data provided to the department by the commission in accordance with Section 92.006 and Section 111.057, Human Resources Code; and
(3) cooperate in conducting investigations of spinal cord and traumatic brain injuries.
Added by Acts 1997, 75th Leg., ch. 893, § 6, eff. Sept. 1, 1997. Renumbered from § 88.010 and amended by Acts 1999, 76th Leg., ch. 62, § 11.01, eff. Sept. 1, 1999.
§ 92.011. COORDINATION WITH TEXAS TRAUMATIC BRAIN INJURY ADVISORY COUNCIL. (a) The department and the Texas Traumatic Brain Injury Advisory Council established within the department under Subchapter B shall:
(1) exchange relevant injury data on an ongoing basis to the extent allowed by Section 92.006;
(2) maintain the confidentiality of injury data provided to the council by the department in accordance with Section 92.006;
(3) permit the council to review and comment on the board's rules under Section 92.002(b) before the rules are proposed; and
(4) cooperate in conducting investigations of traumatic brain injuries. (b) The department and the Texas Traumatic Brain Injury Advisory Council may enter into a memorandum of understanding to facilitate cooperation under Subsection (a).
Added by Acts 1997, 75th Leg., ch. 893, § 6, eff. Sept. 1, 1997. Renumbered from § 88.011 and amended by Acts 1999, 76th Leg., ch. 62, § 11.02, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1088, § 10, eff. Sept. 1, 2003.
SUBCHAPTER B. TEXAS TRAUMATIC BRAIN INJURY ADVISORY COUNCIL
§ 92.051. DEFINITIONS. In this subchapter: (1) "Traumatic brain injury support group" means a local, state, or national organization that:
(A) is established to provide support services to aid persons with a traumatic brain injury and their primary family caregivers;
(B) encourages research into the cause, prevention, and treatment of traumatic brain injury and care of persons with a traumatic brain injury; and
(C) is dedicated to the development of essential services for persons with a traumatic brain injury and their primary family caregivers.
(2) "Council" means the Texas Traumatic Brain Injury Advisory Council. (3) "Primary family caregiver" means an individual who is a relative of a person with a traumatic brain injury who has or has had a major responsibility for the care and supervision of the person with a traumatic brain injury and who is not a professional health care provider paid to care for the person with a traumatic brain injury.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.052. ADVISORY COUNCIL; ASSOCIATED AGENCY. (a) The Texas Traumatic Brain Injury Advisory Council is an advisory council within the department.
(b) Notwithstanding Subsection (a), if, as a result of legislation enacted in the 78th Legislature, Regular Session, 2003, a state agency other than the department is designated to serve as the agency with primary responsibility in relation to persons with physical disabilities, the council is an advisory council within that state agency and a reference in this chapter to the department means that agency.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.053. MEMBERSHIP. (a) The council must be composed in accordance with federal law. Appointments to the council shall be made without regard to:
(1) the race, color, sex, religion, age, or national origin of the appointees; or
(2) the disability of the appointees, except as required by federal law. (b) The council is composed of 22 members appointed as follows: (1) eight public consumer members appointed by the commissioner of health and human services, at least three of whom must be individuals related to persons with a traumatic brain injury and at least three of whom must be persons with a brain injury;
(2) six professional members appointed by the commissioner of health and human services, each of whom must have special training and interest in the care, treatment, or rehabilitation of persons with a traumatic brain injury, with one representative each from:
(A) acute hospital trauma units; (B) the National Institute for Disability Rehabilitation Research Traumatic Brain Injury Model System in this state;
(C) acute or post-acute rehabilitation facilities; (D) community-based services; (E) faculties of institutions of higher education; and (F) providers in the areas of physical therapy, occupational therapy, or cognitive rehabilitation; and
(3) eight state agency members, with one representative from each of the following agencies appointed by the chief executive officer of the agency:
(A) Texas Department of Health; (B) Texas Department of Human Services; (C) Texas Department of Mental Health and Mental Retardation; (D) Texas Rehabilitation Commission; (E) Health and Human Services Commission; (F) Texas Education Agency; (G) Texas Planning Council for Developmental Disabilities; and (H) Texas Department of Insurance. (c) One of the six public consumer members appointed under Subsection (b)(1) must be a member of a statewide traumatic brain injury support group.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.054. OFFICERS. (a) The members of the council annually shall elect a presiding officer and an assistant presiding officer from the council members.
(b) A representative of a state agency may not serve as presiding officer or assistant presiding officer.
(c) At least one of the officers must be a public consumer member.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.055. RESTRICTIONS ON MEMBERS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. The term does not include a voluntary health organization.
(b) A person may not be a public consumer member of the council if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization receiving money from the council;
(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving money from the council; or
(3) uses or receives a substantial amount of tangible goods, services, or money from the council, other than compensation or reimbursement authorized by law for council membership, attendance, or expenses.
(c) A person may not be a member of the council if the person is an officer, employee, or paid consultant of a Texas trade association in a health care field.
(d) A person may not be a member of the council if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.
(e) It is a ground for removal from the council that a member: (1) does not have at the time of taking office the qualifications required by Section 92.053(b);
(2) does not maintain during service on the council the qualifications required by Section 92.053(b);
(3) is ineligible for membership under Subsection (b), (c), or (d); (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the council.
(f) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.056. TERMS; VACANCY. (a) The public consumer and professional members of the council are appointed for staggered six-year terms, with the terms of four or five members expiring February 1 of each odd-numbered year.
(b) In addition to other methods by which a position may become vacant, a position on the council becomes vacant if a member resigns from the council by providing written notice to the presiding officer of the council.
(c) If a position on the council becomes vacant, the presiding officer shall provide written notice to the appropriate appointing official requesting a new appointment to fill the remainder of the member's term.
(d) If a vacancy occurs, the appropriate appointing official shall appoint a person, in the same manner as the original appointment, to serve for the remainder of the unexpired term.
(e) A person who has served one full term on the council is not eligible for reappointment.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.057. COMPENSATION; EXPENSES. (a) Except as provided by Subsections (b) and (c), a member of the council is not entitled to compensation for service on the council and is not entitled to reimbursement for travel expenses.
(b) A member who is a representative of a state agency shall be reimbursed for travel expenses incurred while conducting council business from the funds of the agency the person represents in accordance with the General Appropriations Act.
(c) If money is available for this purpose in the account established under Section 92.062(b), the department shall reimburse a public consumer member for the member's actual and necessary expenses incurred in performing council duties, including travel, meals, lodging, respite care for a dependent with a disability, and telephone long-distance charges.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.058. MEETINGS. The council shall meet at least once each calendar quarter on meeting dates set by the council and at the call of the presiding officer.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.059. DUTIES OF THE COUNCIL. The council shall: (1) inform state leaders of issues and policies as they relate to meeting the needs of persons with a traumatic brain injury and their primary family caregivers;
(2) recommend to state leaders policies and programs that more effectively serve persons with a traumatic brain injury and their families;
(3) recommend to the department methods to explore and promote innovative approaches to providing services and support to persons with a traumatic brain injury and their families;
(4) recommend to the department methods to promote education, training, and information about traumatic brain injury issues;
(5) advocate for persons with a traumatic brain injury and their families; (6) recommend to the department methods to support activities aimed at reducing preventable brain injuries; and
(7) recommend to the department methods to conduct outreach to obtain public input.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.060. DUTIES OF THE DEPARTMENT. (a) The department shall: (1) provide administrative support services to the council; (2) accept gifts and grants on behalf of the council from any public or private entity;
(3) receive, deposit, and disburse gifts and grants for the council in accordance with this subchapter and provide other administrative services in support of the council as requested by and negotiated with the council; and
(4) enter into a memorandum of understanding with the council that delineates the responsibilities of the department and the council under this subchapter and amend the memorandum as necessary to reflect changes in those responsibilities.
(b) The board may adopt rules as necessary to implement the department's duties under this subchapter and federal developmental disability laws.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.061. ADDITIONAL COUNCIL DUTIES. The council shall: (1) make recommendations, at the request of the governor or legislative leaders, relating to activities appropriate to the achievement of legislative and executive functions relating to persons with a traumatic brain injury; and
(2) submit to the governor, legislature, and other appropriate state and federal authorities periodic reports on the council's responsibilities and performance.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.062. GIFTS AND GRANTS. (a) The council is encouraged to seek a gift or grant from any public or private entity.
(b) The health and human services commission shall deposit any money received under Subsection (a) to the credit of the Texas Traumatic Brain Injury Advisory Council account. The Texas Traumatic Brain Injury Advisory Council account is an account in the general revenue fund that may be appropriated only for the purpose of carrying out this subchapter.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003.
§ 92.063. ADVISORY COMMITTEE STATUTE INAPPLICABLE. Chapter 2110, Government Code, does not apply to the council.
Added by Acts 2003, 78th Leg., ch. 1088, § 2, eff. Sept. 1, 2003. § 93.001. DEFINITIONS. In this chapter: (1) "Cardiovascular disease" means the group of diseases that target the heart and blood vessels and that are the result of complex interactions between multiple inherited traits and environmental factors.
(2) "Council" means the Council on Cardiovascular Disease and Stroke.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999.
§ 93.002. APPOINTMENT OF COUNCIL; TERMS OF MEMBERS. (a) The Council on Cardiovascular Disease and Stroke is composed of:
(1) 11 public members appointed by the governor, with the advice and consent of the senate, as follows:
(A) a licensed physician with a specialization in cardiology; (B) a licensed physician with a specialization in neurology to treat stroke;
(C) a licensed physician employed in a primary care setting; (D) a registered nurse with a specialization in quality improvement practices for cardiovascular disease and stroke;
(E) a registered and licensed dietitian; (F) two persons with experience and training in public health policy, research, or practice;
(G) two consumer members, with special consideration given to persons actively participating in the Texas affiliates of the American Heart Association or American Stroke Association, managed care, or hospital or rehabilitation settings; and
(H) two members from the general public that have or care for persons with cardiovascular disease or stroke; and
(2) one nonvoting member representing each of the state agencies that oversee:
(A) health services; (B) education; (C) assistive and rehabilitative services; and (D) aging and disability services. (b) In appointing public members under Subsection (a)(1), the governor shall attempt to appoint female members and members of different minority groups, including African Americans, Hispanic Americans, Native Americans, and Asian Americans.
(c) The head of each agency overseeing services listed in Subsection (a)(2) shall appoint the agency's representative nonvoting member.
(d) Public members of the council serve staggered six-year terms, with the terms of three or four of the public members expiring February 1 of each odd-numbered year. A nonvoting member representing a state agency serves at the will of the appointing agency.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1170, § 6.01, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 732, § 1, eff. Sept. 1, 2005.
§ 93.003. REIMBURSEMENT. (a) Except as provided by Subsection (b), a member of the council may be reimbursed for travel expenses incurred while conducting the business of the council at the same rate provided for state employees in the General Appropriations Act, provided funds are appropriated to the department for this purpose.
(b) If funds are not appropriated to support reimbursement of travel expenses, the commissioner may authorize reimbursement of the travel expenses incurred by a member while conducting the business of the council, as provided in the General Appropriations Act, if the commissioner finds on application of the member that travel for council business imposes a financial hardship on the member.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 732, § 2, eff. Sept. 1, 2005.
§ 93.004. DUTIES OF DEPARTMENT; FUNDS. The department shall accept funds appropriated for the purposes of this chapter and shall allocate those funds. The council shall make recommendations to the department concerning the allocation of funds.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999.
§ 93.005. CONSULTANTS; ADVISORY COMMITTEE. To advise and assist the council with respect to the council's duties under this chapter, the council may appoint one or more:
(1) consultants to the council; or (2) advisory committees under Chapter 2110, Government Code.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999.
§ 93.006. REPORT TO LEGISLATURE. (a) Repealed by Acts 2005, 79th Leg., ch. 732, § 7.
(b) Not later than January 15 of each year, the council shall report to the governor, the lieutenant governor, and the speaker of the house of representatives on the activities of the council, accounting for all funds received and disbursed by or for the council during the preceding fiscal year.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 732, § 3, 4, 7, eff. Sept. 1, 2005.
§ 93.007. RESTRICTIONS ON COUNCIL APPOINTMENT, MEMBERSHIP, OR EMPLOYMENT. (a) A person is not eligible to serve as a public member if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization receiving funds at the council's direction;
(2) owns or controls directly or indirectly more than a 10 percent interest in a business entity or other organization receiving funds at the council's direction; or
(3) uses or receives a substantial amount of tangible goods, services, or funds from the department at the council's direction, other than compensation or reimbursement authorized by law for council membership, attendance, or expenses.
(b) A person who is required to register as a lobbyist under Chapter 305, Government Code, may not serve as a member of the council or act as the general counsel of the council.
(c) An officer, employee, or paid consultant of a trade association in the field of health care may not be a member or employee of the council. A person who is the spouse of an officer, employee, or paid consultant of a trade association in the field of health care may not be a member of the council and may not be an employee, including an employee exempt from the state's position classification plan, who is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.
(d) For purposes of Subsection (c), a trade association is a nonprofit, cooperative, and voluntary association of business or professional competitors designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interests.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.008. REMOVAL OF COUNCIL MEMBER. (a) It is a ground for removal from the council if a member:
(1) is not eligible for appointment to the council at the time of appointment as provided by Section 93.007(a);
(2) is not eligible to serve on the council as provided by Section 93.007(a);
(3) violates a prohibition established by Section 93.007(b) or (c); (4) cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during each calendar year, unless the absence is excused by a majority vote of the council.
(b) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a member of the council exists.
(c) If the presiding officer of the council knows that a potential ground for removal exists, the presiding officer shall notify the governor of its existence.
(d) The council shall inform its members as often as necessary of: (1) the qualifications for office prescribed by this chapter; and (2) the responsibilities under applicable laws relating to standards of conduct for state officers or employees.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.009. PRESIDING OFFICER. The governor shall designate a member of the council as the presiding officer of the council to serve in that capacity at the will of the governor.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.010. STAFF SUPPORT. Each agency represented on the council: (1) shall provide the council with staff support of specialists as needed; and
(2) may provide staff support to an advisory committee.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.011. DIVISION OF POLICY AND MANAGEMENT RESPONSIBILITIES. The council shall develop and implement policies that clearly separate the policy-making responsibilities of the council and the management responsibilities of the commissioner and staff of the department.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.012. MEETINGS. (a) The council shall meet at least quarterly and shall adopt rules for the conduct of its meetings.
(b) An action taken by the council must be approved by a majority of the voting members present.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.013. GIFTS AND GRANTS. (a) The council may receive gifts and grants from any public or private source to perform its duties under this chapter. The department shall accept the gifts on behalf of the council and shall deposit any funds accepted under this section to the credit of a special account in the general revenue fund as required by Section 93.014.
(b) The department may retain five percent of any monetary gifts accepted on behalf of the council to cover its costs in administering this section.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
§ 93.014. HEART DISEASE AND STROKE RESOURCE FUND. (a) The heart disease and stroke resource fund is an account of the general revenue fund.
(b) The legislature may appropriate money deposited to the credit of the heart disease and stroke resource fund only to the council for:
(1) heart disease and stroke prevention, research, and medical care for heart attack and stroke victims; and
(2) grants to nonprofit heart disease and stroke organizations. (c) The council shall develop a policy governing the award of funds for clinical research that follows scientific peer review guidelines for primary and secondary prevention of heart disease or stroke or that follows other review procedures that are designed to distribute those funds on the basis of scientific merit.
(d) Interest earned from the investment of the heart disease and stroke resource fund shall be deposited to the credit of the fund.
Added by Acts 2005, 79th Leg., ch. 732, § 5, eff. Sept. 1, 2005.
SUBCHAPTER B. POWERS AND DUTIES OF COUNCIL
§ 93.051. CARDIOVASCULAR DISEASE AND STROKE PREVENTION PLAN; DUTIES OF COUNCIL. (a) The council shall develop an effective and resource-efficient plan to reduce the morbidity, mortality, and economic burden of cardiovascular disease and stroke in this state. The council shall:
(1) conduct health education, public awareness, and community outreach activities that relate to primary and secondary prevention of cardiovascular disease and stroke;
(2) promote, enhance, and coordinate health education, public awareness, and community outreach activities that relate to primary and secondary prevention of cardiovascular disease and stroke and that are provided by private and other public organizations;
(3) coordinate activities with other entities that are concerned with medical conditions that are similar to cardiovascular disease and stroke or that have similar risk factors;
(4) identify to health care providers, employers, schools, community health centers, and other groups the benefits of encouraging treatment, primary and secondary prevention, and public awareness of cardiovascular disease and stroke and recognize innovative and effective programs that achieve the objectives of improved treatment, prevention, and public awareness;
(5) provide guidance regarding the roles and responsibilities of government agencies, health care providers, employers, third-party payers, patients, and families of patients in the treatment, primary and secondary prevention, and public awareness of cardiovascular disease and stroke;
(6) improve access to treatment for and primary and secondary prevention of cardiovascular disease and stroke through public awareness programs, including access for uninsured individuals and individuals living in rural or underserved areas;
(7) assist communities to develop comprehensive local cardiovascular disease and stroke prevention programs;
(8) assist the Texas Education Agency and local school districts to promote a public school curriculum that includes physical, nutritional, and health education relating to cardiovascular disease and stroke prevention;
(9) establish appropriate forums, programs, or initiatives designed to educate the public regarding the impact of heart disease and stroke on women's health, with an emphasis on preventive health and healthy lifestyles; and
(10) evaluate and enhance the implementation and effectiveness of the program developed under this chapter.
(b) The council shall make written recommendations for performing its duties under this chapter to the department and the legislature.
(c) The council shall advise the legislature on legislation that is needed to develop further and maintain a statewide system of quality education services for all persons with cardiovascular disease or stroke. The council may develop and submit legislation to the legislature or comment on pending legislation that affects persons with cardiovascular disease and stroke.
(d) The council shall collaborate with the Governor's EMS and Trauma Advisory Council, the American Stroke Association, and other stroke experts to make recommendations to the department for rules on the recognition and rapid transportation of stroke patients to health care facilities capable of treating strokes 24 hours a day and recording stroke patient outcomes.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 732, § 6, eff. Sept. 1, 2005.
§ 93.052. DATABASE OF CLINICAL RESOURCES. The council shall review available clinical resources and shall develop a database of recommendations for appropriate care and treatment of patients with cardiovascular disease or who have suffered from or are at risk for stroke. The council shall make the database accessible to the public.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999.
§ 93.053. CARDIOVASCULAR DISEASE AND STROKE DATABASE. (a) The council shall collect and analyze information related to cardiovascular disease and stroke at the state and regional level and, to the extent feasible, at the local level. The council shall obtain the information from federal and state agencies and from private and public organizations. The council shall maintain a database of this information.
(b) The database may include: (1) information related to behavioral risk factors identified for cardiovascular disease and stroke;
(2) morbidity and mortality rates for cardiovascular disease and stroke; and
(3) community indicators relevant to cardiovascular disease and stroke. (c) In compiling the database, the council may use information available from other sources, such as the Behavioral Risk Factor Surveillance System established by the Centers for Disease Control and Prevention, reports of hospital discharge data, and information included in death certificates.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999.
§ 93.054. INFORMATION RECEIVED FROM ANOTHER STATE AGENCY; CONFIDENTIALITY. (a) To perform its duties under this chapter, the council may request and receive information in the possession of any state agency. In addition to the restriction imposed by Subsection (b), information provided to the council under this subsection is subject to any restriction on disclosure or use of the information that is imposed by law on the agency from which the council obtained the information.
(b) Information in the possession of the council that identifies a patient or that is otherwise confidential under law is confidential, is excepted from required public disclosure under Chapter 552, Government Code, and may not be disclosed for any purpose.
Added by Acts 1999, 76th Leg., ch. 1411, § 25.01, eff. Sept. 1, 1999. § 94.001. STATE PLAN FOR HEPATITIS C. (a) The department shall develop a state plan for prevention and treatment of hepatitis C. The plan must include strategies for prevention and treatment of hepatitis C in specific demographic groups that are disproportionately affected by hepatitis C, including persons infected with HIV, veterans, racial or ethnic minorities that suffer a higher incidence of hepatitis C, and persons who engage in high risk behavior, such as intravenous drug use.
(b) In developing the plan, the department shall seek the input of: (1) the public, including members of the public that have hepatitis C; (2) each state agency that provides services to persons with hepatitis C or the functions of which otherwise involve hepatitis C, including any appropriate health and human services agency described by Section 531.001, Government Code;
(3) any advisory body that addresses issues related to hepatitis C; (4) public advocates concerned with issues related to hepatitis C; and (5) providers of services to persons with hepatitis C. (c) The department shall update the state plan developed under this section biennially and shall, not later than October 1 of each even-numbered year, file the state plan with the governor, lieutenant governor, and speaker of the house of representatives.
Added by Acts 2001, 77th Leg., ch. 918, § 1, eff. June 14, 2001.
§ 94.002. HEPATITIS C EDUCATION AND PREVENTION PROGRAM. (a) The department shall develop a program to heighten awareness and enhance knowledge and understanding of hepatitis C. The department shall:
(1) conduct a seroprevalence study to estimate the current and future impact of hepatitis C on the state;
(2) conduct health education, public awareness, and community outreach activities to promote public awareness and knowledge about the risk factors, the value of early detection, available screening services, and the options available for the treatment of hepatitis C;
(3) provide training to public health clinic staff regarding the treatment, detection, and methods of transmission of hepatitis C;
(4) identify to health care providers and employers the benefits of disease awareness and prevention; and
(5) develop a prevention program to reduce the risk of transmission of hepatitis C.
(b) In developing the prevention program required by Subsection (a)(5), the department may forecast the economic and clinical impacts of hepatitis C and the impact of hepatitis C on quality of life. The department may develop the forecasts in conjunction with an academic medical center or a nonprofit institution with experience using disease management prospective modeling and simulation techniques.
Added by Acts 1999, 76th Leg., ch. 823, § 1, eff. Sept. 1, 1999. Renumbered from V.T.C.A., Health and Safety Code § 93.001 and amended by Acts 2001, 77th Leg., ch. 918, § 1, eff. June 14, 2001.
§ 94.003. DEPARTMENT VOLUNTARY TESTING PROGRAMS. (a) The department shall establish voluntary hepatitis C testing programs to be performed at facilities providing voluntary HIV testing under Section 85.082 in each public health region to make confidential counseling and testing available.
(b) The department may contract with public and private entities to perform the testing as necessary according to local circumstances.
(c) The results of a test conducted by a testing program or department program under this section may not be used for insurance purposes, to screen or determine suitability for employment, or to discharge a person from employment.
(d) A person who intentionally violates Subsection (c) is liable to a person injured by the violation. The injured person may bring a civil action for damages and may recover for each violation from a person who violates Subsection (c):
(1) the greater of $1,000 or actual damages; and (2) reasonable attorney's fees. (e) In addition to the remedies provided by Subsection (d), the person may bring an action to restrain a violation or threatened violation of Subsection (c).
Added by Acts 1999, 76th Leg., ch. 823, § 1, eff. Sept. 1, 1999. Renumbered from V.T.C.A., Health and Safety Code § 93.002 by Acts 2001, 77th Leg., ch. 918, § 1, eff. June 14, 2001.
§ 94.004. TRAINING OF COUNSELORS. (a) The department shall develop and offer a training course for persons providing hepatitis C counseling. The training course must include information relating to the special needs of persons with positive hepatitis C test results, including the importance of early intervention and treatment and recognition of psychosocial needs.
(b) The department shall maintain a registry of persons who successfully complete the training course.
(c) The department may charge a fee for the course to persons other than employees of entities receiving state or federal funds for hepatitis C counseling and testing programs through a contract with the department. The board shall set the fee in an amount necessary to cover the costs of providing the course.
(d) The department may contract for the training of counselors.
Added by Acts 1999, 76th Leg., ch. 823, § 1, eff. Sept. 1, 1999. Renumbered from V.T.C.A., Health and Safety Code § 93.003 by Acts 2001, 77th Leg., ch. 918, § 1, eff. June 14, 2001. § 95.001. DEFINITIONS. In this chapter: (1) "Acanthosis nigricans" means a light brown or black velvety, rough, or thickened area on the surface of the skin that may signal high insulin levels indicative of insulin resistance.
(2) "Executive council" means the executive council advising the Texas-Mexico Border Health Coordination Office of The University of Texas-Pan American.
(3) "Office" means the Texas-Mexico Border Health Coordination Office of The University of Texas-Pan American.
(4) "Professional examination" means an evaluation performed by an appropriately licensed professional.
(5) "School" means an educational institution that admits children who are five years of age or older but younger than 21 years of age.
(6) "Screening test" means a rapid analytical procedure used to recommend appropriate measures or to determine the need for further evaluation. The term does not include the removal or partial removal of clothing.
Added by Acts 2001, 77th Leg., ch. 1465, § 1, eff. Sept. 1, 2001.
§ 95.002. ACANTHOSIS NIGRICANS EDUCATION AND SCREENING PROJECT. (a) The office shall administer an acanthosis nigricans screening program in accordance with this chapter.
(b) The executive council by rule shall coordinate screening of individuals who attend public or private schools located in Texas Education Agency Regional Education Service Centers 1, 2, 3, 4, 10, 11, 13, 15, 18, 19, and 20.
(c) The rules must include procedures necessary to administer screening activities.
(d) The office shall require acanthosis nigricans screening to be performed at the same time hearing and vision screening is performed under Chapter 36 or spinal screening is performed under Chapter 37.
(e) The office may coordinate the acanthosis nigricans screening activities of school districts, private schools, state agencies, volunteer organizations, and other entities so that the efforts of each entity are complementary and not fragmented and duplicative. The office may provide technical assistance to those entities in developing screening programs and may provide educational and other material to assist local screening activities.
(f) The office shall monitor the quality of screening activities provided under this chapter.
Added by Acts 2001, 77th Leg., ch. 1465, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1125, § 1, eff. Sept. 1, 2003.
§ 95.003. COMPLIANCE WITH SCREENING REQUIREMENTS. (a) Each individual required by rules adopted under this chapter to be screened shall undergo approved screening for acanthosis nigricans. The individual shall comply with the requirements as soon as possible after the individual's admission to a school and as required by rule. The individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian may substitute a professional examination for the screening.
(b) An individual is exempt from screening if screening conflicts with the tenets and practices of a recognized church or religious denomination of which the individual is an adherent or a member. To qualify for the exemption, the individual or, if the individual is a minor, the individual's parent, managing conservator, or guardian must submit to the chief administrator of the school on or before the day of the screening procedure an affidavit stating the objections to the screening.
(c) The chief administrator of each school shall ensure that each individual admitted to the school complies with the screening requirements set by the executive council or submits an affidavit of exemption.
Added by Acts 2001, 77th Leg., ch. 1465, § 1, eff. Sept. 1, 2001.
§ 95.004. RECORDS; REPORTS. (a) The chief administrator of each school shall maintain, on a form prescribed by the executive council, screening records for each individual in attendance, and the records are open for inspection by the office or the local health department.
(b) The office may, directly or through local health departments, enter a school and inspect records maintained by the school relating to screening for acanthosis nigricans.
(c) An individual's screening records may be transferred among schools without the consent of the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian.
(d) The person performing the screening shall send a report indicating that an individual may have acanthosis nigricans to the individual or, if the individual is a minor, the minor's parent, managing conservator, or guardian. The report must include:
(1) an explanation of acanthosis nigricans and related conditions; (2) a statement concerning an individual's or family's need for further evaluation of conditions related to acanthosis nigricans; and
(3) instructions to help the individual or family receive evaluation and intervention by the school district.
(e) Each school shall submit to the office an annual report on the screening status of the individuals in attendance during the reporting year and shall include in the report any other information required by the office. The report must be on a form prescribed by the executive council and must be submitted according to the executive council's rules.
(f) Not later than January 15 of each odd-numbered year, the office shall submit to the governor and the legislature a report concerning the effectiveness of the acanthosis nigricans screening program established by this chapter.
Added by Acts 2001, 77th Leg., ch. 1465, § 1, eff. Sept. 1, 2001.
§ 96.001. DEFINITIONS. In this chapter: (1) "Department" means the Department of State Health Services. (2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.
(3) "Health facility" includes: (A) a general or special hospital licensed by the department under Chapter 241;
(B) a physician-owned or physician-operated clinic; (C) a publicly or privately funded medical school; (D) a state hospital or state school maintained and managed by the Department of State Health Services or the Department of Aging and Disability Services;
(E) a public health clinic conducted by a local health unit, health department, or public health district organized and recognized under Chapter 121; and
(F) another facility specified by a rule adopted by the executive commissioner.
(4) "Local health unit" has the meaning assigned by Section 121.004. (5) "RSV" means respiratory syncytial virus.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.002. CONFIDENTIALITY. (a) Except as specifically authorized by this chapter, reports, records, and information furnished to a department employee or to an authorized agent of the department that relate to cases or suspected cases of a health condition are confidential and may be used only for the purposes of this chapter.
(b) Reports, records, and information relating to cases or suspected cases of health conditions are not public information under Chapter 552, Government Code, and may not be released or made public on subpoena or otherwise except as provided by this chapter.
(c) The department may release medical, epidemiological, or toxicological information:
(1) for statistical purposes, if released in a manner that prevents the identification of any person;
(2) to medical personnel, appropriate state agencies, health authorities, regional directors, and public officers of counties and municipalities as necessary to comply with this chapter and rules relating to the identification, monitoring, and referral of children with RSV; or
(3) to appropriate federal agencies, such as the Centers for Disease Control and Prevention of the United States Public Health Service.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.003. LIMITATION OF LIABILITY. A health professional, a health facility, or an administrator, officer, or employee of a health facility subject to this chapter is not civilly or criminally liable for divulging information required to be released under this chapter, except in a case of gross negligence or wilful misconduct.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.004. COOPERATION OF GOVERNMENTAL ENTITIES. Another state board, commission, agency, or governmental entity capable of assisting the department in carrying out the intent of this chapter shall cooperate with the department and furnish expertise, services, and facilities to the sentinel surveillance program.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.005. SENTINEL SURVEILLANCE PROGRAM. (a) The executive commissioner shall establish in the department a program to:
(1) identify by sentinel surveillance RSV infection in children; and (2) maintain a central database of laboratory-confirmed cases of RSV that can be used to investigate the incidence, prevalence, and trends of RSV. (b) In establishing the sentinel surveillance program for RSV, the executive commissioner shall consider:
(1) the number and geographic distribution of children in the state; (2) the location of health facilities that collect RSV information locally; and
(3) the use of existing data collected by health facilities. (c) The executive commissioner shall adopt rules to govern the operation of the program and carry out the intent of this chapter, including rules that specify a system for selecting the demographic areas in which the department collects information.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.006. DATA COLLECTION. (a) To ensure an accurate source of data, the executive commissioner may require a health facility or health professional to make available for review by the department or by an authorized agent medical records or other information that is in the facility's or professional's custody or control and that relates to an occurrence of RSV.
(b) The executive commissioner by rule shall prescribe the manner in which data are reported to the department.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.007. DATABASE. (a) Information collected and analyzed by the department or an authorized agent under this chapter may be placed in a central database to facilitate information sharing and provider education.
(b) The department may use the database to: (1) design and evaluate measures to prevent the occurrence of RSV and other health conditions; and
(2) provide information and education to providers on the incidence of RSV infection.
Added by Acts 2005, 79th Leg., ch. 152, § 1, eff. Sept. 1, 2005.
§ 96.001. DEFINITIONS. In this chapter: (1) "Arthritis" means a rheumatic disease consisting of the chronic inflammation of joints, muscles, or connective tissue.
(2) "Program" means the arthritis control and prevention program.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.002. ARTHRITIS CONTROL AND PREVENTION PROGRAM. To the extent that money has been appropriated or is otherwise available, the department shall develop and implement an arthritis control and prevention program to:
(1) heighten awareness and enhance knowledge and understanding of arthritis among consumers, health professionals, teachers, and human services providers; and
(2) work to increase and improve community-based services available to persons with arthritis and their families.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.003. NEEDS ASSESSMENT. As part of the program, the department shall work with public and private organizations to assess the current status of arthritis, considering information such as:
(1) mortality and morbidity; (2) public and professional awareness; and (3) educational needs for and support services available to people with arthritis.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.004. PUBLIC AWARENESS. (a) The department through the program shall work with public and private organizations to raise public awareness of:
(1) the causes and nature of arthritis; (2) personal risk factors; (3) the value of prevention and early detection; (4) ways to minimize preventable pain; and (5) options for diagnosing and treating arthritis. (b) The department may use strategies, including strategies consistent with the National Arthritis Action Plan and other state arthritis planning efforts to heighten public awareness under Subsection (a).
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.005. TECHNICAL ASSISTANCE. In implementing the program, the department may:
(1) identify, replicate, and use successful evidence-based arthritis programs; and
(2) obtain relevant materials and services from organizations with appropriate expertise and knowledge of arthritis.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.006. ADMINISTRATIVE PROVISIONS. (a) The department may enter into contracts or agreements as necessary to carry out this chapter. The contracts or agreements may provide for payment by the state for materials, equipment, and services.
(b) The department may seek, receive, and spend any money received through appropriations, grants, donations, or contributions from public or private sources to develop and implement the program.
(c) The department shall provide and train staff to implement the program.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
§ 96.007. ARTHRITIS ADVISORY COMMITTEE. (a) The department shall establish and coordinate the Arthritis Advisory Committee. The committee consists of members appointed by the commissioner, including:
(1) persons with arthritis; (2) public health educators or other persons knowledgeable in health education;
(3) medical experts on arthritis; (4) providers of arthritis health care; and (5) representatives of national arthritis organizations and their local chapters.
(b) The committee shall advise the department on developing and implementing the program.
(c) A member of the committee receives no additional compensation for serving on the committee and may not be reimbursed for travel or other expenses incurred while conducting the business of the committee.
(d) The committee is not subject to Chapter 2110, Government Code.
Added by Acts 2005, 79th Leg., ch. 326, § 1, eff. Sept. 1, 2005.
SUBCHAPTER A. GENERAL PROVISIONS
§ 96.001. DEFINITIONS.
Text of section effective until January 1, 2007
(a) In this chapter: (1) "Advisory panel" means the Advisory Panel on Health Care Associated Infections.
(2) "Commissioner" means the commissioner of state health services. (3) "Department" means the Department of State Health Services. (4) "Health care associated infection" means a localized or symptomatic condition resulting from an adverse reaction to an infectious agent or its toxins to which a patient is exposed in the course of health care delivery.
(5) "Health care facility" means a hospital licensed under Chapter 241 or an ambulatory surgical center licensed under Chapter 243.
(6) "Infection rate" means the number of health care associated infections at a health care facility divided by a numerical measure over time of the population at risk for contracting the infection.
(7) "Process measure" means a measure of a health care facility's compliance with recommended infection control practices.
(b) The advisory panel may modify or define the term "infection rate" as necessary to accomplish the purposes of this chapter.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.002. APPLICABILITY OF OTHER LAW.
Text of section effective until January 1, 2007
Chapter 2110, Government Code, does not apply to the advisory panel created under Subchapter B.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.003. EXPIRATION.
Text of section effective until January 1, 2007
This chapter expires January 1, 2007.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
SUBCHAPTER B. ADVISORY PANEL ON HEALTH CARE ASSOCIATED INFECTIONS
§ 96.051. ESTABLISHMENT.
Text of section effective until January 1, 2007
The commissioner shall establish the Advisory Panel on Health Care Associated Infections within the regulatory licensing unit of the health care quality section of the department.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.052. MEMBERSHIP.
Text of section effective until January 1, 2007
The advisory panel is composed of 14 members as follows: (1) two infection control practitioner members who: (A) are certified by the Certification Board of Infection Control and Epidemiology; and
(B) are practicing in hospitals in this state, at least one of which must be a rural hospital;
(2) two infection control practitioner members who: (A) are certified by the Certification Board of Infection Control and Epidemiology; and
(B) are nurses licensed to engage in professional nursing under Chapter 301, Occupations Code;
(3) three board-certified or board-eligible physician members who: (A) are licensed to practice medicine in this state under Chapter 155, Occupations Code, at least two of whom have active medical staff privileges at a hospital in this state;
(B) are active members of the Society for Healthcare Epidemiology of America; and
(C) have demonstrated expertise in infection control in health care facilities;
(4) one member who is a chief executive officer of a hospital licensed under Chapter 241;
(5) one member who is a chief executive officer of an ambulatory surgical center licensed under Chapter 243;
(6) three members who: (A) are department employees representing the department in epidemiology and the licensing of hospitals or ambulatory surgical centers; and
(B) serve as nonvoting members of the advisory panel; and (7) two members who represent the public as consumers.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.053. MEMBER ELIGIBILITY.
Text of section effective until January 1, 2007
A person may not be a member of the advisory panel if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to health care.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.054. OFFICERS.
Text of section effective until January 1, 2007
The members of the advisory panel shall elect a presiding officer and an assistant presiding officer from among the members.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.055. COMPENSATION; EXPENSES.
Text of section effective until January 1, 2007
(a) Except as provided by Subsection (b), a member of the advisory panel is not entitled to compensation for service on the advisory panel and is not entitled to reimbursement for travel expenses.
(b) A member who is a representative of a state agency shall be reimbursed for travel expenses incurred while conducting the business of the advisory panel from the funds of the agency the person represents in accordance with the General Appropriations Act.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.056. VACANCY.
Text of section effective until January 1, 2007
A vacancy on the advisory panel shall be filled by the commissioner.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.057. ABOLISHED.
Text of section effective until January 1, 2007
The Advisory Panel on Health Care Associated Infections is abolished January 1, 2007.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
SUBCHAPTER C. POWERS AND DUTIES OF ADVISORY PANEL
§ 96.101. GENERAL POWERS AND DUTIES.
Text of section effective until January 1, 2007
(a) The advisory panel, using nationally accepted measures, shall study and recommend definitions and methodologies for collecting and reporting evidence-based data on:
(1) infection rates; (2) process measures; or (3) both infection rates and process measures. (b) In developing the recommendations described in Subsection (a), the advisory panel shall consider:
(1) adjusting the reported infection rates to account for the differences in patient populations and for factors outside the control of the health care facility;
(2) standardizing data collection methodology and reporting; (3) reviewing data collection and reporting systems of other entities related to infection rates, such as the National Nosocomial Infections Surveillance System of the federal Centers for Disease Control and Prevention;
(4) reviewing data collection and reporting systems of other entities related to process measures, such as the Joint Commission on Accreditation of Healthcare Organizations or the Centers for Medicare and Medicaid Services;
(5) maximizing the efficient use of the resources required for health care facilities to conduct required surveillance and reporting;
(6) recognizing the potential unintended consequences of public reporting that is poorly designed or executed and that may diminish the overall quality of this state's health care or mislead or fail to protect health care consumers who use the data; and
(7) providing additional benefits to health care consumers.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005.
§ 96.102. REPORT TO LEGISLATURE.
Text of section effective until January 1, 2007
(a) Not later than November 1, 2006, the commissioner shall file a report with the presiding officer of each house of the legislature on the advisory panel's recommendations for legislation regarding the collection and reporting of infection rates, process measures, or both.
(b) The report shall include a recommendation that the legislation set September 1, 2007, as the date for hospitals and ambulatory surgical centers to comply with the legislation.
Added by Acts 2005, 79th Leg., ch. 836, § 3, eff. Sept. 1, 2005. § 102.001. DEFINITION. In this chapter, "council" means the Texas Cancer Council.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 102.002. TEXAS CANCER COUNCIL. The Texas Cancer Council shall develop and work to implement the Texas Cancer Plan.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.06, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 36, § 1, eff. Sept. 1, 1999.
§ 102.003. SUNSET PROVISION. The Texas Cancer Council is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this chapter expires September 1, 2009.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 17, § 4.24, eff. Nov. 12, 1991; Acts 1999, 76th Leg., ch. 36, § 1, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 1227, § 2.02, eff. Sept. 1, 2005.
§ 102.004. COMPOSITION OF COUNCIL. (a) The council is composed of: (1) the chairman of the Texas Board of Health, or a representative appointed by the chairman, who serves as an ex officio nonvoting member;
(2) one physician active in the treatment of cancer, appointed by the governor;
(3) one physician active in the treatment of cancer, appointed by the lieutenant governor;
(4) one physician active in the treatment of cancer, appointed by the speaker of the house of representatives;
(5) one representative of a voluntary health organization interested in cancer, appointed by the governor;
(6) one representative of a voluntary health organization interested in cancer, appointed by the lieutenant governor;
(7) one representative of a voluntary health organization interested in cancer, appointed by the speaker of the house of representatives;
(8) one representative of a licensed health care facility that treats a significant number of cancer patients, appointed by the governor;
(9) one representative of a licensed health care facility that treats a significant number of cancer patients, appointed by the lieutenant governor;
(10) one representative of a licensed health care facility that treats a significant number of cancer patients, appointed by the speaker of the house of representatives;
(11) one member of the public, appointed by the governor; (12) one member of the public, appointed by the lieutenant governor; (13) one member of the public, appointed by the speaker of the house of representatives;
(14) one licensed health care professional active in the treatment or control of cancer, other than a physician, appointed by the governor;
(15) one licensed health care professional active in the treatment or control of cancer, other than a physician, appointed by the lieutenant governor; and
(16) one licensed health care professional active in the treatment or control of cancer, other than a physician, appointed by the speaker of the house of representatives.
(b) In making appointments to the council, the governor, lieutenant governor, and speaker of the house of representatives should attempt to include cancer survivors and family members of cancer patients if possible.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.07, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 36, § 1, eff. Sept. 1, 1999.
§ 102.0041. QUALIFICATIONS OF COUNCIL MEMBERS AND EMPLOYEES. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. The term does not include a voluntary health organization.
(b) A person may not be a public member of the council if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization receiving money from the council;
(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving money from the council; or
(3) uses or receives a substantial amount of tangible goods, services, or money from the council, other than compensation or reimbursement authorized by law for council membership, attendance, or expenses.
(c) A person may not be a member of the council and may not be a council employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments if:
(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of cancer control; or
(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of cancer control.
(d) A person may not be a member of the council or act as the general counsel to the council or the council's staff if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.
(e) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(f) It is a ground for removal from the council that a member: (1) does not have at the time of taking office the qualifications required by Section 102.004;
(2) does not maintain during service on the council the qualifications required by Section 102.004;
(3) is ineligible for membership under Subsections (b)-(d); (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the council.
(g) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists.
(h) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the council of the potential ground. The presiding officer shall then notify the appointing authority and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the council, who shall then notify the appointing authority and the attorney general that a potential ground for removal exists.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.08, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg., ch. 36, § 1, eff. Sept. 1, 1999.
§ 102.005. TERMS; VACANCY. (a) Except for the ex officio member of the council, council members serve for staggered six-year terms, with the terms of five members expiring February 1 of each even-numbered year.
(b) If a vacancy occurs, the appropriate appointing authority shall appoint, in the same manner as the original appointment, a person to serve for the remainder of the unexpired term.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 36, § 2, eff. Sept. 1, 1999.
§ 102.006. OFFICERS. The governor shall designate a member of the council, other than the ex officio member, as the presiding officer of the council to serve in that capacity at the pleasure of the governor.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.09, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 36, § 3, eff. Sept. 1, 1999.
§ 102.007. COMPENSATION. (a) A member of the council is not entitled to compensation but is entitled to reimbursement for actual and necessary expenses incurred in performing council duties.
(b) A member of the legislature shall be reimbursed from the appropriate fund of the legislature. A representative of a state agency shall be reimbursed from the funds of the agency the person represents. Other members shall be reimbursed from council funds.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 102.008. MEETINGS. (a) The council shall meet at the call of the presiding officer.
(b) The council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 36, § 3, eff. Sept. 1, 1999.
§ 102.009. POWERS AND DUTIES OF COUNCIL. (a) The council shall: (1) work to implement the Texas Cancer Plan; (2) continually monitor and revise the Texas Cancer Plan as necessary; (3) promote the development and coordination of effective and efficient statewide public and private policies, programs, and services related to cancer; and
(4) encourage cooperative, comprehensive, and complementary planning among the public, private, and volunteer sectors involved in cancer research, prevention, detection, and treatment.
(b) The council may: (1) employ an executive director; (2) appoint advisory committees necessary to implement the Texas Cancer Plan and employ necessary staff to provide administrative support;
(3) monitor contracts and agreements for cancer programs authorized by this chapter;
(4) conduct necessary studies and surveys; (5) accept, transfer, and spend funds made available by the federal or state government or by any other public or private source, subject to limitations and conditions prescribed by legislative appropriation; and
(6) use the existing staff of an appointed official or agency to assist the council in performing its duties under this chapter.
(c) The Texas Cancer Council and/or its contracted projects shall maintain for physicians a listing of available continuing medical education courses in pain treatment offered by accredited Texas medical and osteopathic schools, hospitals, health care facilities, or professional societies or associations for physicians.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 627, § 13, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.10, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 174, § 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 36, § 4, eff. Sept. 1, 1999.
§ 102.010. GRANT PROGRAM. (a) If funds are available, the council may establish a grant program to provide funds to public or private persons to implement the Texas Cancer Plan.
(b) The council shall adopt rules governing the submission and approval of grant requests and the cancellation of grants.
(c) To receive a grant, a person whose grant request is approved must execute an interagency agreement or a contract with the council. The contract must require the person receiving the grant to perform the services as stated in the approved grant request. The contract must contain appropriate provisions for program and fiscal monitoring.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.11, eff. Sept. 1, 1991.
§ 102.011. STANDARDS OF CONDUCT. The executive director or the executive director's designee shall provide to members of the council and to council employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees.
Added by Acts 1999, 76th Leg., ch. 36, § 5, eff. Sept. 1, 1999.
§ 102.012. CANCER RESOURCE FUND. (a) The cancer resource fund is an account of the general revenue fund.
(b) The legislature may appropriate money deposited to the credit of the cancer resource fund only to the council for cancer prevention, cancer research, and medical care for cancer victims.
(c) The council shall develop a policy governing the award of funds for clinical research that follows scientific peer review and approval by the National Cancer Institute of the National Institutes of Health or that follows other review procedures that are designed to distribute those funds on the basis of scientific merit.
(d) Interest earned from the investment of the cancer resource fund shall be deposited to the credit of the fund.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 102.013. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.
(b) The training program must provide the person with information regarding:
(1) the legislation that created the council; (2) the programs operated by the council; (3) the role and functions of the council; (4) the rules of the council, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the council; (6) the results of the most recent formal audit of the council; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict of interest laws; and
(8) any applicable ethics policies adopted by the council or the Texas Ethics Commission.
(c) A person appointed to the council is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Added by Acts 1999, 76th Leg., ch. 36, § 5, eff. Sept. 1, 1999.
§ 102.014. SEPARATION OF RESPONSIBILITIES. The council shall develop and implement policies that clearly separate the policymaking responsibilities of the council and the management responsibilities of the executive director and the staff of the council.
Added by Acts 1999, 76th Leg., ch. 36, § 5, eff. Sept. 1, 1999.
§ 102.015. COMPLAINTS. (a) The council shall maintain a file on each written complaint filed with the council. The file must include:
(1) the name of the person who filed the complaint; (2) the date the complaint is received by the council; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and
(6) an explanation of the reason the file was closed, if the council closed the file without taking action other than to investigate the complaint.
(b) The council shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the council's policies and procedures relating to complaint investigation and resolution.
(c) The council, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.
Added by Acts 1999, 76th Leg., ch. 36, § 5, eff. Sept. 1, 1999.
§ 102.016. EQUAL EMPLOYMENT OPPORTUNITY. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin.
(b) The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the council to avoid the unlawful employment practices described by Chapter 21, Labor Code; and
(2) an analysis of the extent to which the composition of the council's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law.
(c) The policy statement must: (1) be updated annually; (2) be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1); and
(3) be filed with the governor's office.
Added by Acts 1999, 76th Leg., ch. 36, § 5, eff. Sept. 1, 1999.
§ 102.017. TEXANS CONQUER CANCER ACCOUNT. (a) The Texans Conquer Cancer account is a separate account in the general revenue fund. The account is composed of:
(1) money deposited to the credit of the account under Section 502.2735, Transportation Code; and
(2) gifts, grants, and donations. (b) The council administers the account. The council may spend money credited to the account only to:
(1) make grants to nonprofit organizations that provide support services for cancer patients and their families; and
(2) defray the cost of administering the account. (c) The council: (1) may accept gifts, donations, and grants from any source for the benefit of the account; and
(2) by rule shall establish guidelines for spending money credited to the account.
Added by Acts 2001, 77th Leg., ch. 869, § 3(b), eff. June 14, 2001.
§ 102.018. TEXANS CONQUER CANCER ADVISORY COMMITTEE. (a) The council shall appoint a seven-member Texans Conquer Cancer advisory committee.
(b) The committee shall: (1) assist the council in establishing guidelines for the expenditure of money credited to the Texans Conquer Cancer account; and
(2) review and make recommendations to the council on applications submitted to the council for grants funded with money credited to the Texans Conquer Cancer account.
(c) Members of the committee serve without compensation and are not entitled to reimbursement for expenses. Each member serves a term of four years, with the terms of three or four members expiring on January 31 of each odd-numbered year.
(d) Section 2110.008, Government Code, does not apply to the committee.
Added by Acts 2001, 77th Leg., ch. 869, § 3(b), eff. June 14, 2001. § 103.001. DEFINITIONS. In this chapter: (1) "Council" means the Texas Diabetes Council. (2) "Person with diabetes" means a person diagnosed by a physician as having diabetes.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.002. COMPOSITION OF COUNCIL. (a) The Texas Diabetes Council is composed of 11 citizen members appointed from the public and one representative each from the department, the Texas Education Agency, the Texas Department of Human Services, the Texas Commission for the Blind, and the Texas Rehabilitation Commission.
(b) The governor, with the advice and consent of the senate, shall appoint the following citizen members:
(1) a licensed physician with a specialization in treating diabetes; (2) a registered nurse with a specialization in diabetes education and training;
(3) a registered and licensed dietitian with a specialization in the diabetes education field;
(4) a person with experience and training in public health policy; (5) three consumer members, with special consideration given to persons active in the Texas affiliates of the Juvenile Diabetes Foundation or the American Diabetes Association; and
(6) four members from the general public with expertise or demonstrated commitment to diabetes issues.
(b-1) In making appointments under this section, the governor shall attempt to appoint members of different minority groups including females, African-Americans, Hispanic-Americans, Native Americans, and Asian-Americans.
(c) The chairman of the board of each agency listed in Subsection (a) shall appoint that agency's representative. Agency representatives shall be nonvoting members of the council.
(d) Appointments to the council shall be made without regard to the race, color, disability, creed, sex, religion, age, or national origin of the appointees.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 269, § 1, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 165, § 6.39, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1411, § 12.01, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1170, § 10.01, eff. Sept. 1, 2003.
§ 103.0024. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.
(b) The training program must provide the person with information regarding:
(1) the legislation that created the council; (2) the programs operated by the council; (3) the role and functions of the council; (4) the rules of the council; (5) the current budget for the council; (6) the results of the most recent formal audit of the council; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the council or the Texas Ethics Commission.
(c) A person appointed to the council is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Added by Acts 1999, 76th Leg., ch. 1411, § 12.03, eff. Sept. 1, 1999.
§ 103.0025. INFORMATION ABOUT STANDARDS OF CONDUCT. The commissioner or the commissioner's designee shall provide to members of the council, as often as necessary, information regarding the requirements for office under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers.
Added by Acts 1999, 76th Leg., ch. 1411, § 12.03, eff. Sept. 1, 1999.
§ 103.004. RESTRICTIONS ON COUNCIL APPOINTMENT, MEMBERSHIP, OR EMPLOYMENT. (a) A person is not eligible for appointment or service as a citizen member if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization receiving funds at the council's direction; (2) owns or controls directly or indirectly more than a 10 percent interest in a business entity or other organization receiving funds at the council's direction; or
(3) uses or receives a substantial amount of tangible goods, services, or funds from the department at the council's direction, other than compensation or reimbursement authorized by law for council membership, attendance, or expenses.
(b) A person who is required to register as a lobbyist under Chapter 305, Government Code, may not serve as a member of the council or act as the general counsel.
(c) An officer, employee, or paid consultant of a trade association in the field of health care may not be a member or employee of the council. A person who is the spouse of an officer, employee, or paid consultant of a trade association in the field of health care may not be a member of the council and may not be an employee, including an employee exempt from the state's position classification plan, who is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule.
(d) For purposes of Subsection (c), a trade association is a nonprofit, cooperative, and voluntary association of business or professional competitors designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interests.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.005. TERMS. (a) Council members appointed by the governor serve for staggered six-year terms, with the terms of three or four members expiring February 1 of each odd-numbered year.
(b) A council member appointed as a representative of an agency serves at the will of the appointing agency.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 269, § 2, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 1285, § 3.01, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1170, § 10.02, eff. Sept. 1, 2003.
§ 103.006. CHAIRMAN. The governor shall designate a member of the council as the chairman of the council to serve in that capacity at the will of the governor.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1411, § 12.02, eff. Sept. 1, 1999.
§ 103.007. REMOVAL OF COUNCIL MEMBER. (a) It is a ground for removal from the council if a member:
(1) is not eligible for appointment to the council at the time of appointment as provided by Section 103.004(a); (2) is not eligible to serve on the council as provided by Section 103.004(a); (3) violates a prohibition established by Section 103.004(b) or (c); (4) cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during each calendar year unless the absence is excused by majority vote of the council.
(b) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a member of the council exists.
(c) If the chairman of the council has knowledge that a potential ground for removal exists, the chairman shall notify the governor of its existence.
(d) The council shall inform its members as often as necessary of: (1) the qualifications for office prescribed by this chapter; and (2) their responsibilities under applicable laws relating to standards of conduct for state officers or employees.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.008. VACANCY. (a) The office of a member appointed by an agency becomes vacant when the person terminates employment with the agency or when the agency elects to replace the person as provided by Section 103.005.
(b) If the office of a member who is an agency representative becomes vacant, the chairman of the board of that agency shall appoint an agency representative to serve for the remainder of that member's term.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1285, § 3.02, eff. Sept. 1, 1997.
§ 103.009. REIMBURSEMENT. (a) The department shall reimburse council and advisory committee members for travel and other necessary expenses incurred in performing official duties at the same rate provided for state employees in the General Appropriations Act.
(b) Funds for travel reimbursement shall be appropriated to the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.010. STAFF SUPPORT. Each agency represented on the council shall provide the council with periodic staff support of specialists as needed and may provide staff support to an advisory committee.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.0105. DIVISION OF POLICY AND MANAGEMENT RESPONSIBILITIES. The council shall develop and implement policies that clearly separate the policymaking responsibilities of the council and the management responsibilities of the commissioner and the staff of the department.
Added by Acts 1999, 76th Leg., ch. 1411, § 12.04, eff. Sept. 1, 1999.
§ 103.011. ADVISORY COMMITTEES. (a) The council may establish advisory committees the council considers necessary and may determine the appropriate membership for each committee.
(b) The council shall specify the purpose and duties of each advisory committee and shall specify any product the committee is required to develop.
(c) Members of an advisory committee serve at the will of the council. The council may dissolve an advisory committee when necessary.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.012. MEETINGS. (a) The council shall meet at least quarterly and shall adopt rules for the conduct of its meetings.
(b) Any action taken by the council must be approved by a majority of the voting members present.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 269, § 3, eff. Sept. 1, 1991.
§ 103.013. STATE PLAN. (a) The council shall develop and implement a state plan for diabetes treatment, education, and training to ensure that:
(1) this chapter is properly implemented by the agencies affected; (2) incentives are offered for private sources to maintain present commitments and to assist in developing new programs; and
(3) a procedure for review of individual complaints about services provided under this chapter is implemented.
(b) The state plan may include provisions to ensure that: (1) individual and family needs are assessed statewide and all available resources are coordinated to meet those needs; and
(2) health care provider needs are assessed statewide and strategies are developed to meet those needs.
(c) The council shall make written recommendations for performing its duties under this chapter to the board and the legislature. If the council considers a recommendation that will affect an agency not represented on the council, the council shall seek the advice and assistance of the agency before taking action on the recommendation. The council's recommendations shall be implemented by the agencies affected by the recommendations.
(d) The council shall submit the state plan to the state agency designated as the state health planning and development agency not later than November 1 of each odd-numbered year.
(e) Each state agency affected by the state plan shall: (1) determine what resources would be required to implement the portions of the state plan affecting that agency; and
(2) determine whether that agency will seek funds to implement that portion of the state plan.
(f) Not later than November 1 of each even-numbered year, each state agency affected by the state plan shall report to the council, the Legislative Budget Board, and the Governor's Office of Budget and Planning:
(1) information determined under Subsection (e); and (2) each deviation from the council's proposed plan, including an explanation for the deviation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.014. POWERS AND DUTIES. (a) The council shall address contemporary issues affecting health promotion services in the state, including:
(1) professional and patient education; (2) successful diabetes education strategies; (3) personnel preparation and continuing education; (4) state expenditures for treatment of chronic diseases; (5) screening services; and (6) public awareness. (b) The council shall advise the legislature on legislation that is needed to develop further and maintain a statewide system of quality education services for all persons with diabetes. The council may develop and submit legislation to the legislature or comment on pending legislation that affects persons with diabetes.
(c) The council may: (1) compile and publish regional directories of services for persons with diabetes; (2) design or adapt and publish a handbook in English and Spanish relating to diet, exercise, and other self-care management skills for persons with diabetes; (3) study the feasibility of a statewide hotline for persons with diabetes; and
(4) study the standards and structure of pilot programs to provide diabetes education and training in this state.
(d) The council may engage in studies that it determines are necessary or suitable under the state plan as provided by this chapter.
(e) The department shall accept funds appropriated for the purposes of this chapter and shall allocate those funds. The council shall make recommendations to the department concerning the allocation of funds.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.015. GIFTS AND GRANTS. (a) The council may receive gifts and grants from any public or private source to perform its duties under this chapter. The department shall accept the gifts on behalf of the council and shall deposit any funds accepted under this section to the credit of a special account in the general revenue fund.
(b) The department may retain five percent of any monetary gifts accepted on behalf of the council to cover its costs in administering this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.016. PUBLIC INFORMATION AND PARTICIPATION; COMPLAINTS. (a) The council shall prepare information of public interest describing the functions of the council and describing council procedures by which complaints are filed with and resolved by the council. The council shall make the information available to the general public and appropriate state agencies.
(b) The council by rule shall establish methods by which consumers or service recipients are notified of the name, mailing address, and telephone number of the council for the purpose of directing complaints to the council.
(c) The council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.017. PUBLIC AWARENESS AND TRAINING. (a) The department, the Texas Commission for the Blind, the Texas Rehabilitation Commission, the Texas Department of Human Services, and the Texas Education Agency shall work with the council to jointly develop, produce, and implement a general public awareness strategy focusing on diabetes, its complications, and techniques for achieving good management. Each agency shall pay for the costs of producing and disseminating information on diabetes to clients served by that agency.
(b) The strategy developed under Subsection (a) must include a plan under which the council provides public awareness information through businesses, civic organizations, and similar entities.
(c) The department, the Texas Commission for the Blind, the Texas Rehabilitation Commission, the Texas Department of Human Services, and the Texas Education Agency may jointly develop and implement a statewide plan for conducting regional training sessions for public and private service providers, including institutional health care providers, who have routine contact with persons with diabetes.
(d) The council must approve the strategies and plans developed under this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 165, § 6.40, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1285, § 4.01, eff. Sept. 1, 1997.
§ 103.0175. MATERIALS FOR SCHOOL-BASED AND SCHOOL-LINKED CLINICS. The council, in consultation with the department, shall develop and make available materials that provide information about diabetes to be distributed to students and the parents of students by health clinics at public primary or secondary schools.
Added by Acts 1997, 75th Leg., ch. 1285, § 4.01, eff. Sept. 1, 1997.
§ 103.018. ANNUAL REPORT. The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by or for the council during the preceding fiscal year. The form of the annual report and the reporting time are as provided by the General Appropriations Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 103.019. AUDIT. The financial transactions pertaining to the council are subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 39, eff. Sept. 1, 1991. § 104.001. POLICY; PURPOSE. (a) The policy of this state and the purpose of this chapter are to:
(1) ensure that health care services and facilities are available to all citizens in an orderly and economical manner; and
(2) meet the requirements of applicable federal law. (b) To achieve this purpose it is essential that: (1) appropriate health planning activities are undertaken and implemented; and
(2) health care services and facilities are provided in a cost-effective manner, compatible with the health care needs of the different areas and populations of the state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 747, § 18, eff. Sept. 1, 1993.
§ 104.002. DEFINITION. In this chapter, "health care facility" means a public or private hospital, skilled nursing facility, intermediate care facility, ambulatory surgical facility, family planning clinic that performs ambulatory surgical procedures, rural or urban health initiative clinic, kidney disease treatment facility, inpatient rehabilitation facility, and any other facility designated a health care facility by federal law. The term does not include the office of physicians or practitioners of the healing arts practicing individually or in groups.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.003. FEDERAL LAW. A reference in this chapter to federal law is a reference to any pertinent federal authority, including:
(1) the National Health Planning and Resources Development Act of 1974 (Pub. L. No. 93-641) , as amended by the Health Planning and Resources Development Amendments of 1979 (Pub. L. No. 96-79); (2) Public Laws 79-725, 88-164, 89-749, and 92-603; and (3) the federal rules and regulations adopted under a law specified by Subdivision (1) or (2).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.004. INTERAGENCY COOPERATION. Each state agency, department, instrumentality, grantee, political subdivision, and institution of higher education shall cooperate with the department in performing assigned duties and functions.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.005. LIMITATIONS ON POWERS OF DEPARTMENT. This chapter does not authorize the department or an official or employee of the department to:
(1) supervise or control the practice of medicine, the manner in which physician's services in private practice are provided, or the selection, tenure, compensation, or fees of a physician in the delivery of physician's services; or
(2) perform a duty or function under Title XI of the Social Security Act (42 U.S.C. § 1301 et seq.) or a rule or regulation adopted under that Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER B. STATEWIDE HEALTH COORDINATING COUNCIL
§ 104.011. COMPOSITION OF COUNCIL. (a) The statewide health coordinating council is composed of 17 members determined as follows:
(1) the commissioner of health and human services or a representative designated by the commissioner;
(2) the presiding officer of the Texas Higher Education Coordinating Board or a representative designated by the presiding officer;
(3) the presiding officer of the department or a representative designated by the presiding officer;
(4) the presiding officer of the Texas Department of Mental Health and Mental Retardation or a representative designated by the presiding officer; and
(5) the following members appointed by the governor: (A) three health care professionals from the allied health, dental, medical, mental health, and pharmacy professions, no two of whom may be from the same profession;
(B) one registered nurse; (C) two representatives of a university or health-related institution of higher education;
(D) one representative of a junior or community college with a nursing program;
(E) one hospital administrator; (F) one managed care administrator; and (G) four public members. (b) The appointments of the governor shall be with the advice and consent of the senate.
(c) The governor shall designate a member of the council as the presiding officer of the council to serve in that capacity at the will of the governor.
(d) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 747, § 19, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1386, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1411, § 11.01, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, § 2.192(a), eff. Sept. 1, 2003.
§ 104.0111. CONFLICT OF INTEREST. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A person may not be a member of the statewide health coordinating council if:
(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of medicine; or
(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of medicine.
(c) A person may not be a member of the council if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.02, eff. Sept. 1, 1999.
§ 104.0112. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the statewide health coordinating council that a member:
(1) does not have at the time of taking office the qualifications required by Section 104.011(a);
(2) does not maintain during service on the council the qualifications required by Section 104.011(a);
(3) is ineligible for membership under Section 104.0111; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the council.
(b) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists.
(c) If the commissioner has knowledge that a potential ground for removal exists, the commissioner shall notify the presiding officer of the council of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the commissioner shall notify the next highest ranking officer of the council, who shall then notify the governor and the attorney general that a potential ground for removal exists.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.02, eff. Sept. 1, 1999.
§ 104.0113. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the statewide health coordinating council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.
(b) The training program must provide the person with information regarding:
(1) the legislation that created the council; (2) the programs operated by the council; (3) the role and functions of the council; (4) the rules of the council; (5) the current budget for the council; (6) the results of the most recent formal audit of the council; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the council or the Texas Ethics Commission.
(c) A person appointed to the council is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.02, eff. Sept. 1, 1999.
§ 104.0115. TERMS. (a) Members of the council serve for staggered six-year terms, with the terms of four or five members expiring August 31 of each odd-numbered year.
(b) An appointment to fill a vacancy is for the unexpired term.
Added by Acts 1993, 73rd Leg., ch. 747, § 20, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 728, § 6, eff. June 20, 2003.
§ 104.012. RULES. The statewide health coordinating council shall adopt rules governing the development and implementation of the state health plan.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.013. FEES. The statewide health coordinating council may establish and charge fees for public health planning, data, and statistical services.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.014. ASSISTANCE. The department, in accordance with rules adopted by the statewide health coordinating council, shall assist the council in performing the council's duties and functions.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.0141. DIVISION OF POLICY AND MANAGEMENT RESPONSIBILITIES. The statewide health coordinating council shall develop and implement policies that clearly separate the policymaking responsibilities of the council and the management responsibilities of the commissioner and the staff of the department.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.03, eff. Sept. 1, 1999.
§ 104.0142. INFORMATION ABOUT STANDARDS OF CONDUCT. The commissioner or the commissioner's designee shall provide to members of the statewide health coordinating council, as often as necessary, information regarding the requirements for office under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.03, eff. Sept. 1, 1999.
§ 104.015. ADVISORY BOARDS AND AD HOC COMMITTEES. The statewide health coordinating council may form advisory boards or ad hoc committees composed of health care experts from the public and private sectors to review policy matters related to the council's purpose.
Added by Acts 1997, 75th Leg., ch. 1386, § 2, eff. Sept. 1, 1997.
§ 104.0155. NURSING ADVISORY COMMITTEE. (a) The statewide health coordinating council shall form a nursing advisory committee the majority of the members of which must be nurses. The committee:
(1) must include: (A) members of associations that represent nurses, educators of nurses, and employers of nurses;
(B) members who represent nurse licensing boards; and (C) a nurse researcher; and (2) may include other members who are health care experts from the public or private sector, nurses, nurse educators, employers of nurses, or consumers of nursing services.
(b) The committee shall: (1) review policy matters on the collection of data and reports performed under Chapter 105 that relate to the nursing profession;
(2) subject to approval of the council, develop priorities and an operations plan for the nursing resource section under Section 105.002(b); and
(3) review reports and information before dissemination. (c) A nurse member of the committee and a nurse member of the statewide health coordinating council shall cochair the committee.
(d) Chapter 2110, Government Code, does not apply to the committee formed under this section.
(e) Meetings of the committee under this section are subject to Chapter 551, Government Code.
Added by Acts 2003, 78th Leg., ch. 728, § 7, eff. June 20, 2003.
§ 104.0156. HEALTH CARE INFORMATION TECHNOLOGY ADVISORY COMMITTEE. (a) The statewide health coordinating council shall form an advisory committee on health care information technology. The committee must include representatives of interested groups, including the academic community, health plans, pharmacies, and associations of physicians, hospitals, and nurses. The committee must also include at least one member with at least 10 years of experience in the health care information technology industry.
(b) The advisory committee shall develop a long-range plan for health care information technology, including the use of electronic medical records, computerized clinical support systems, computerized physician order entry, regional data sharing interchanges for health care information, and other methods of incorporating information technology in pursuit of greater cost-effectiveness and better patient outcomes in health care. In developing the long-range plan, the advisory committee shall study the effect of health care information technology on price disparities in insurance coverage for residents of this state.
(c) The advisory committee shall elect a presiding officer. (d) Members of the advisory committee serve without compensation but are entitled to reimbursement for the members' travel expenses as provided by Chapter 660, Government Code, and the General Appropriations Act.
(e) Chapter 2110, Government Code, does not apply to the size, composition, or duration of the advisory committee.
(f) Meetings of the advisory committee under this section are subject to Chapter 551, Government Code.
Added by Acts 2005, 79th Leg., ch. 785, § 1, eff. Sept. 1, 2005.
§ 104.016. PUBLIC TESTIMONY. The statewide health coordinating council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council.
Added by Acts 1999, 76th Leg., ch. 1411, § 11.04, eff. Sept. 1, 1999.
SUBCHAPTER C. STATE HEALTH PLAN
§ 104.021. PROPOSED STATE HEALTH PLAN. (a) The department, in accordance with rules adopted by the statewide health coordinating council, shall prepare and review a proposed state health plan every six years and shall revise and update the plan biennially.
(b) The department shall submit the proposed plan to the statewide health coordinating council.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 747, § 21, eff. Sept. 1, 1993.
§ 104.022. STATE HEALTH PLAN. (a) Information needed for the development of the state health plan shall be gathered through systematic methods designed to include local, regional, and statewide perspectives.
(b) The statewide health coordinating council, in consultation with the Health and Human Services Commission, shall issue overall directives for the development of the state health plan.
(c) The department shall consult with the Texas Department of Mental Health and Mental Retardation, the Texas Department of Human Services, and other appropriate health-related state agencies designated by the governor before performing the duties and functions prescribed by state and federal law regarding the development of the state health plan.
(d) The statewide health coordinating council shall provide guidance to the department in developing the state health plan.
(e) The state health plan shall be developed and used in accordance with applicable state and federal law. The plan must identify:
(1) major statewide health concerns; (2) the availability and use of current health resources of the state, including resources associated with information technology and state-supported institutions of higher education; and
(3) future health service, information technology, and facility needs of the state.
(f) The state health plan must: (1) propose strategies for the correction of major deficiencies in the service delivery system;
(2) propose strategies for incorporating information technology in the service delivery system;
(3) propose strategies for involving state-supported institutions of higher education in providing health services and for coordinating those efforts with health and human services agencies in order to close gaps in services; and
(4) provide direction for the state's legislative and executive decision-making processes to implement the strategies proposed by the plan.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 627, § 3, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 747, § 22, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 8.126, eff. Sept. 1, 1995; Acts 2005, 79th Leg., ch. 785, § 2, eff. Sept. 1, 2005.
§ 104.023. REVIEW OF STATE HEALTH PLAN. The statewide health coordinating council shall submit the state health plan to the Health and Human Services Commission for review and comment before the plan is sent to the governor.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 627, § 14, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 8.127, eff. Sept. 1, 1995.
§ 104.024. SUBMISSION OF PLAN TO GOVERNOR. The statewide health coordinating council shall approve the state health plan for submission to the governor in accordance with applicable federal law and, not later than November 1 of each even-numbered year, submit the plan to the governor for adoption.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.025. IMPLEMENTATION OF STATE HEALTH PLAN. The statewide health coordinating council shall promote the implementation of the recommendations made in the state health plan.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.026. COST DATA. (a) A state agency directly affected by a recommendation in the state health plan shall submit cost data for the implementation of the recommendation to the department and to the statewide health coordinating council, and shall indicate whether the agency is requesting funds in a manner consistent with the plan's recommendation.
(b) If the agency does not request funds consistent with the state health plan's recommendation, the agency shall submit an explanation and justification of any deviation.
(c) The department shall submit information received under this section to the Legislative Budget Board and the governor's budget office not later than November 1 of each even-numbered year.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER D. THE DEPARTMENT AND THE STATE HEALTH PLAN
§ 104.041. STATE HEALTH PLANNING AND DEVELOPMENT AGENCY. (a) The department is the state health planning and development agency for this state.
(b) After a public hearing and with the governor's approval, the department may contract with an appropriate state agency to perform specific state health planning and development functions of the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.042. DATA COLLECTION. (a) The board by rule shall establish reasonable procedures for the collection of data from health care facilities and for the distribution of data necessary to facilitate and expedite proper and effective health planning and resource development.
(b) The board by rule shall specify the type of data required, the entities required to submit the data, and the period during which the data must be submitted.
(c) The department, in accordance with rules adopted by the statewide health coordinating council, shall collect and distribute data necessary to support specific state health plan goals.
(d) The department shall file, index, and periodically publish in a coherent manner summaries or analyses of the data collected.
(e) Data received by the department under this section containing information identifying specific patients is confidential, is not subject to disclosure under Chapter 552, Government Code, and may not be released unless the information identifying the patient is removed. This subsection does not authorize the release of information that is confidential under Chapter 108.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 728, § 8, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 1034, § 1, eff. Sept. 1, 2005.
§ 104.0421. STATEWIDE DATA COLLECTION AND COORDINATION. (a) The statewide health coordinating council shall work with appropriate health professional licensing agencies to develop uniform standards for health professional data collected by those agencies to enable the council to maintain a comprehensive health professional database.
(b) The council shall retrieve data on health professionals from the appropriate licensing agencies. The council may seek the assistance of the appropriate licensing agency or department in the retrieval of data on health professionals.
(c) The council shall monitor and evaluate long-term regional, statewide, and local health needs. The council shall use this evaluation for developing recommendations relating to health education, training, and regulation.
(d) The council shall use data collected under this section to develop workforce goals for health professionals and to recommend the appropriate level and distribution of state funding for education and training to achieve these goals. The council shall evaluate the short-term and long-term effects of the recommendations made under this subsection.
(e) The council shall, with the assistance of higher education agencies and institutions, area health education centers, teaching hospitals, and health education institutions, improve coordination of statewide health planning. The council may seek the assistance of the National Association of Health Data Organizations, the Association of American Medical Colleges, the National Council of State Legislatures, the American Association of Colleges of Osteopathic Medicine, the Association of American Health Centers, and any other appropriate entities.
(f) The department shall continue to assist the council and the health professions resource center with the development of the state health plan. The council shall coordinate related health planning functions within the department. The staff of the health professions resource center shall continue to be department employees but are governed by the council. The staff of the Bureau of State Health Data and Policy Analysis that previously assisted the council shall continue to assist the council.
Added by Acts 1997, 75th Leg., ch. 1386, § 8, eff. Sept. 1, 1997.
§ 104.043. FAILURE TO SUBMIT DATA; CIVIL PENALTY. (a) If the department does not receive necessary data from an entity as required by the board rules, the department shall send to the entity a notice requiring the entity to submit the data not later than the 30th day after the date on which the entity receives the notice.
(b) An entity that does not submit the data during the period determined under Subsection (a) is subject to a civil penalty of not more than $500 for each day after the period that the entity fails to submit the data.
(c) At the request of the commissioner, the attorney general shall sue in the name of the state to recover the civil penalty.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 104.044. SORTING COLLECTED DATA. (a) The department shall compile the health data collected under this subchapter and organize the results, to the extent possible, according to the following geographic areas:
(1) the Texas-Mexico border region; (2) each public health region; (3) rural areas; (4) urban areas; (5) each county; and (6) the state. (b) Health data released under this subchapter must be released in accordance with the way it is compiled under this section.
Added by Acts 2005, 79th Leg., ch. 1034, § 2, eff. Sept. 1, 2005. § 105.001. DEFINITIONS. In this chapter: (1) "Health profession" means any health or allied health profession that is licensed, certified, or registered by a state board, agency, or association.
(2) "Council" means the statewide health coordinating council.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991. Amended by Acts 1997, 75th Leg., ch. 1386, § 3, eff. Sept. 1, 1997.
§ 105.002. ESTABLISHMENT OF CENTER. (a) In conjunction with the Texas Higher Education Coordinating Board and in such a way as to avoid duplication of effort, the council shall establish a comprehensive health professions resource center for the collection and analysis of educational and employment trends for health professions in this state.
(b) In conjunction with the committee formed under Section 104.0155, to avoid duplication of effort, and to the extent funding is available through fees collected under Section 301.155(c), Occupations Code, the council shall establish a nursing resource section within the center for the collection and analysis of educational and employment trends for nurses in this state.
(c) If the nursing resource section established under Subsection (b) is funded from surcharges collected under Section 301.155(c), Occupations Code, the council shall provide the Board of Nurse Examiners with an annual accounting of the money received from the board. The council may expend a reasonable amount of the money to pay administrative costs of maintaining the nursing resource section.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991. Amended by Acts 1997, 75th Leg., ch. 1386, § 4, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 728, § 9, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 113, § 1, eff. May 20, 2005.
§ 105.003. COLLECTION OF DATA. (a) The council shall place a high priority on collecting and disseminating data on health professions demonstrating an acute shortage in this state, including:
(1) data concerning nursing personnel; and (2) data concerning the health professions in which shortages occur in rural areas.
(b) To the extent possible, the council may collect the data from existing sources that the council determines are credible. The council may enter agreements with those sources that establish guidelines concerning the identification, acquisition, transfer, and confidentiality of the data.
(c) At a minimum, the data collected by the council must include the following in regard to health professionals:
(1) their number and geographic distribution; (2) licensure or certification status; (3) specialty areas, if applicable; and (4) trends or changes in license holders according to number or geographic distribution.
(d) To the extent feasible, the council shall use a researcher with a doctorate in nursing to collect, analyze, and disseminate nursing data that may be used to predict supply and demand for nursing personnel in this state using appropriate federal or state supply-and-demand models. The nursing data must at least:
(1) include demographics, areas of practice, supply, demand, and migration; and
(2) be analyzed to identify trends relating to numbers and geographical distribution, practice setting, and area of practice and, to the extent possible, compare those trends with corresponding national trends. (e) Data received under this section by the nursing resource section established under Section 105.002 that contains information identifying specific patients or health care facilities is confidential, is not subject to disclosure under Chapter 552, Government Code, and may not be released unless all identifying information is removed.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991. Amended by Acts 1997, 75th Leg., ch. 1386, § 5, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 728, § 10, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 113, § 2, eff. May 20, 2005.
§ 105.004. REPORTS. (a) The council may use the data collected and analyzed under this chapter to publish reports regarding:
(1) the educational and employment trends for health professions; (2) the supply and demand of health professions; and (3) other issues, as necessary, concerning health professions in this state.
(b) The council shall publish reports regarding the data collected and analyzed under this chapter related to:
(1) the educational and employment trends of nursing professionals; (2) the supply and demand of nursing professionals; and (3) other issues, as determined necessary by the council, concerning nursing professionals in this state.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991. Amended by Acts 1997, 75th Leg., ch. 1386, § 6, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 728, § 11, eff. June 20, 2003.
§ 105.005. RULES. The board may adopt rules to govern the reporting and collection of data.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991.
§ 105.006. ASSISTANCE OF OTHER STATE AGENCIES. The Texas Higher Education Coordinating Board or the department may require the assistance of other state agencies or institutions of higher education for the development of, or the collection of data for, any report.
Added by Acts 1991, 72nd Leg., ch. 14, § 40, eff. Sept. 1, 1991. Amended by Acts 2003, 78th Leg., ch. 1276, § 10.001(a), eff. Sept. 1, 2003.
§ 105.007. CLEARINGHOUSE. (a) As part of the comprehensive health professions resource center, the council shall develop and establish a clearinghouse for health professionals seeking collaborative practice.
(b) The council may: (1) set and collect a reasonable fee to offset the cost of complying with this section;
(2) solicit, receive, and spend grants, gifts, and donations from public and private sources to comply with this section; and
(3) contract with public or private entities in the performance of its responsibilities under this section.
Added by Acts 1995, 74th Leg., ch. 965, § 1, eff. June 16, 1995. Amended by Acts 1997, 75th Leg., ch. 1386, § 7, eff. Sept. 1, 1997.
§ 105.008. GOALS AND STRATEGIES CONCERNING THE NUMBER OF GRADUATES FROM PROFESSIONAL NURSING PROGRAMS.
Text of section effective until June 1, 2007
(a) In this section, "professional nursing program" has the meaning assigned by Section 61.9621, Education Code.
(b) The council, in consultation with the Texas Higher Education Coordinating Board, shall perform an analysis to determine, for each academic year, a target number of graduates from the state's professional nursing programs, goals for increasing the number of graduates from those programs, and the levels of public and private funding needed to achieve the target number and goals. The analysis must include assessments and projections concerning:
(1) the number of registered nurses working in this state and the number of registered nurses needed in this state; and
(2) the number of professional nursing program graduates needed to address any difference between the numbers described by Subdivision (1).
(c) Not later than January 1, 2007, the council shall report to the legislature concerning the results of the analysis under Subsection (b).
(d) The council shall use existing resources to perform duties imposed under this section.
(e) This section expires June 1, 2007.
Added by Acts 2005, 79th Leg., ch. 674, § 1, eff. June 17, 2005. § 107.001. DEFINITION. In this chapter, "task force" means the health disparities task force established under this chapter.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.002. PURPOSE. The purpose of the task force is to assist the department in accomplishing the following goals:
(1) to eliminate health and health access disparities in Texas among multicultural, disadvantaged, and regional populations; and
(2) to reorganize department programs to eliminate those disparities.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.003. DUTIES. (a) The task force shall: (1) investigate and report on issues related to health and health access disparities among multicultural, disadvantaged, and regional populations;
(2) develop short-term and long-term strategies to eliminate health and health access disparities among multicultural, disadvantaged, and regional populations, with a focus on reorganizing department programs to eliminate those disparities;
(3) monitor the progress of the department in: (A) eliminating the health and health access disparities; and (B) reorganizing department programs to eliminate the disparities; and (4) advise the department on the implementation of any targeted programs or funding authorized by the legislature to address health and health access disparities.
(b) In performing the duties described in Subsection (a), the task force shall consult with the department, the Office of Minority Health and Cultural Competency, women's health offices of the department, and any other relevant division of the department.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.004. REPORT. The task force shall submit a biennial report on the progress of the department in accomplishing the goals described by Section 107.002 to the governor, lieutenant governor, and speaker of the house of representatives. This report may be combined with any other report required of the department by law.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001. Amended by Acts 2005, 79th Leg., ch. 1293, § 1, eff. Sept. 1, 2005.
§ 107.005. COMPOSITION. (a) The task force consists of nine members as follows:
(1) three members appointed by the governor, each of whom represents a different interest described by Subsection (b);
(2) three members appointed by the lieutenant governor, each of whom represents a different interest described by Subsection (b); and
(3) three members appointed by the speaker of the house of representatives, each of whom represents a different interest described by Subsection (b).
(b) Each of the members appointed under Subsection (a) must represent one of the following areas:
(1) business; (2) labor; (3) government; (4) charitable or community organizations; (5) racial or ethnic populations; or (6) community-based health organizations. (c) Members appointed under Subsection (a) must represent both urban and rural areas of this state, including urban and rural areas of the state adjacent to the border with the United Mexican States.
(d) The governor shall designate a member of the committee to serve as presiding officer.
(e) Members serve staggered two-year terms. Four or five members' terms expire February 1 of each year.
(f) An appointment to fill a vacancy for the unexpired term of a member shall be made not later than the 90th day after the date the position becomes vacant.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.006. MEETINGS. The task force shall meet at the call of the presiding officer.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.007. REIMBURSEMENT FOR EXPENSES. A task force member is not entitled to compensation but is entitled to reimbursement for the member's travel expenses as provided by Chapter 660, Government Code, and the General Appropriations Act.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.008. PERSONNEL AND FACILITIES. The task force is administratively attached to the department. The department shall provide the necessary staff and facilities to assist the task force in performing its duties.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001.
§ 107.009. APPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the task force.
Added by Acts 2001, 77th Leg., ch. 1434, § 1, eff. Sept. 1, 2001. § 108.001. CREATION OF COUNCIL. The Texas Health Care Information Council shall administer this chapter and report to the governor, the legislature, and the public.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995.
§ 108.002. DEFINITIONS. In this chapter: (1) "Accurate and consistent data" means data that has been edited by the council and subject to provider validation and certification.
(2) "Board" means the Texas Board of Health. (3) "Certification" means the process by which a provider confirms the accuracy and completeness of the data set required to produce the public use data file in accordance with council rule.
(4) "Charge" or "rate" means the amount billed by a provider for specific procedures or services provided to a patient before any adjustment for contractual allowances. The term does not include copayment charges to enrollees in health benefit plans charged by providers paid by capitation or salary.
(5) "Council" means the Texas Health Care Information Council. (6) "Data" means information collected under Section 108.0065 or 108.009 in the form initially received.
(7) "Department" means the Texas Department of Health. (8) "Edit" means to use an electronic standardized process developed and implemented by council rule to identify potential errors and mistakes in data elements by reviewing data fields for the presence or absence of data and the accuracy and appropriateness of data.
(9) "Health benefit plan" means a plan provided by: (A) a health maintenance organization; or (B) an approved nonprofit health corporation that is certified under Section 162.001, Occupations Code, and that holds a certificate of authority issued by the commissioner of insurance under Chapter 844, Insurance Code.
(10) "Health care facility" means: (A) a hospital; (B) an ambulatory surgical center licensed under Chapter 243; (C) a chemical dependency treatment facility licensed under Chapter 464; (D) a renal dialysis facility; (E) a birthing center; (F) a rural health clinic; or (G) a federally qualified health center as defined by 42 U.S.C. Section 1396d(l)(2)(B).
(11) "Health maintenance organization" means an organization as defined in Section 843.002, Insurance Code.
(12) "Hospital" means a public, for-profit, or nonprofit institution licensed or owned by this state that is a general or special hospital, private mental hospital, chronic disease hospital, or other type of hospital.
(13) "Outcome data" means measures related to the provision of care, including:
(A) patient demographic information; (B) patient length of stay; (C) mortality; (D) co-morbidity; (E) complications; and (F) charges. (14) "Physician" means an individual licensed under the laws of this state to practice medicine under Subtitle B, Title 3, Occupations Code.
(15) "Provider" means a physician or health care facility. (16) "Provider quality" means the extent to which a provider renders care that, within the capabilities of modern medicine, obtains for patients medically acceptable health outcomes and prognoses, after severity adjustment.
(17) "Public use data" means patient level data relating to individual hospitalizations that has not been summarized or analyzed, that has had patient identifying information removed, that identifies physicians only by use of uniform physician identifiers, and that is severity and risk adjusted, edited, and verified for accuracy and consistency. Public use data may exclude some data elements submitted to the council.
(18) "Rural provider" means a provider described by Section 108.0025. (19) "Severity adjustment" means a method to stratify patient groups by degrees of illness and mortality.
(20) "Uniform patient identifier" means a number assigned by the council to an individual patient and composed of numeric, alpha, or alphanumeric characters.
(21) "Uniform physician identifier" means a number assigned by the council to an individual physician and composed of numeric, alpha, or alphanumeric characters.
(22) "Validation" means the process by which a provider verifies the accuracy and completeness of data and corrects any errors identified before certification in accordance with council rule.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1460, § 8.02, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, § 14.775, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, § 10A.523, eff. Sept. 1, 2003.
§ 108.0025. RURAL PROVIDER. For purposes of this chapter, a provider is a rural provider if the provider:
(1) is located in a county that: (A) has a population estimated by the United States Bureau of the Census to be not more than 35,000 as of July 1 of the most recent year for which county population estimates have been published; or
(B) has a population of more than 35,000, but that does not have more than 100 licensed hospital beds and is not located in an area that is delineated as an urbanized area by the United States Bureau of the Census; and
(2) is not a state-owned hospital or a hospital that is managed or directly or indirectly owned by an individual, association, partnership, corporation, or other legal entity that owns or manages one or more other hospitals.
Added by Acts 1997, 75th Leg., ch. 261, § 2, eff. Sept. 1, 1997.
§ 108.003. COUNCIL COMPOSITION; EXPENSES. (a) The council is composed of four ex officio state agency members and 15 members appointed by the governor in accordance with this section.
(b) The ex officio members of the council are: (1) the commissioner of public health or the commissioner's designee; (2) the commissioner of health and human services or the commissioner's designee; (3) the commissioner of insurance or the commissioner's designee; and (4) the public insurance counsel or the counsel's designee. (c) The governor shall appoint the following members of the council: (1) three representatives of the business community, with at least one representing small businesses, who are purchasers of health care but who are not involved in the provision of health care or health insurance;
(2) two representatives from labor, one of whom is not directly involved with management of health care benefits;
(3) two representatives of consumers who are not professionally involved in the purchase, provision, administration, or review of health care or health care insurance;
(4) two representatives of hospitals; (5) one representative of health maintenance organizations; (6) three representatives of physicians who are involved in direct patient care; and
(7) two members who are not professionally involved in the purchase, provision, administration, or utilization review of health care or health care insurance and who have expertise in:
(A) health planning; (B) health economics; (C) provider quality assurance; (D) information systems; or (E) the reimbursement of medical education and research costs. (d) The chairman is appointed by and serves at the pleasure of the governor. Members annually shall elect a vice chairman.
(e) A majority of voting members constitutes a quorum for the transaction of any business. An act by the majority of the voting members present at any meeting at which there is a quorum is considered to be an act of the council.
(f) The council may appoint committees and may elect any officers subordinate to those provided for in Subsection (d).
(g) The council shall appoint technical advisory committees and shall consult with the appropriate technical advisory committee with respect to a rule before the rule is finally adopted by the council. The council is not required to consult with a technical advisory committee before adopting an emergency rule in accordance with Section 2001.034, Government Code. The council shall submit an emergency rule adopted by the council to the appropriate advisory committee for review not later than the first advisory committee meeting that occurs after the rule is adopted. The council may consult with the appropriate technical advisory committee with respect to other formal action of the council. A technical advisory committee may consult with other professionals as necessary. Chapter 2110, Government Code, does not apply to an advisory committee appointed under this subsection. The technical advisory committees shall include:
(1) a technical advisory committee that includes, among other individuals, at least five practicing physicians licensed in this state to provide advice and recommendations to the council on the development and implementation of the methodology and the interpretation of a provider quality report and data under Section 108.010;
(2) a technical advisory committee composed of at least five practicing physicians licensed in this state who have been actively engaged in organized peer review at a hospital in this state to provide advice, recommendations, and peer review expertise to the council on:
(A) the use of peer review in the determination of quality inpatient care;
(B) the development and interpretation of data elements necessary to the determination of quality inpatient care; and
(C) the development and format of reports and information relating to provider quality;
(3) a technical advisory committee that includes providers and consumers to provide advice and recommendations to the council relating to education about the development and dissemination of provider reports and data;
(4) a technical advisory committee that includes representatives of consumers and each type of issuer of health benefit plans to assist the council in complying with Section 108.009(o); and
(5) a technical advisory committee composed of providers, consumers, and individuals who have expertise in hospital information systems, health information management, quality management, and security of confidential data.
(h) A member of the council may not receive compensation for service on the council. However, the member shall be reimbursed for the member's actual and necessary meals, lodging, transportation, and incidental expenses if incurred while performing council business.
(i) A member of an advisory committee appointed by the council may not receive compensation or reimbursement of any expense incurred while serving on the committee.
(j) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of appointees. Additionally, in making the appointments to the council, the governor shall consider geographical representation.
(k) A person may not serve as a member of the council if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 2, eff. Sept. 1, 1999.
§ 108.004. MEETINGS. (a) The council, council committees, and technical advisory committees are subject to the open meetings law, Chapter 551, Government Code.
(b) The council shall meet as often as necessary, but not less often than quarterly, to perform its duties under this chapter.
(c) The council shall publish a notice of its meetings in the Texas Register.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 4, eff. Sept. 1, 1997.
§ 108.0045. OPEN RECORDS. Subject to the restrictions of this chapter, the council is subject to the open records law, Chapter 552, Government Code.
Added by Acts 1997, 75th Leg., ch. 261, § 5, eff. Sept. 1, 1997.
§ 108.005. TERMS. (a) The terms of the agency members are concurrent with their terms of office. The appointed council members serve six-year staggered terms, with the terms of five members expiring September 1 of each odd-numbered year.
(b) An appointed member may not serve more than two full consecutive terms. (c) It is a ground for removal from the council if a member of the council: (1) does not have at the time of appointment the qualifications required by Section 108.003;
(2) does not maintain during service the qualifications required by Section 108.003;
(3) cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability; or
(4) fails to attend at least one-half of the regularly scheduled meetings that the member is eligible to attend during a calendar year.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995.
§ 108.006. POWERS AND DUTIES OF COUNCIL. (a) The council shall develop a statewide health care data collection system to collect health care charges, utilization data, provider quality data, and outcome data to facilitate the promotion and accessibility of cost-effective, good quality health care. The council shall:
(1) direct the collection, dissemination, and analysis of data under this chapter;
(2) contract with the department to collect the data under this chapter; (3) adopt policies and rules necessary to carry out this chapter, including rules concerning data collection requirements;
(4) build on and not duplicate other data collection required by state or federal law, by an accreditation organization, or by board rule;
(5) working with appropriate agencies, review public health data collection programs in this state and recommend, where appropriate, consolidation of the programs and any legislation necessary to effect the consolidation;
(6) assure that public use data is made available and accessible to interested persons;
(7) prescribe by rule the process for providers to submit data consistent with Section 108.009;
(8) adopt by rule and implement a methodology to collect and disseminate data reflecting provider quality in accordance with Section 108.010;
(9) make reports to the legislature, the governor, and the public on: (A) the charges and rate of change in the charges for health care services in this state;
(B) the effectiveness of the council in carrying out the legislative intent of this chapter;
(C) if applicable, any recommendations on the need for further legislation; and
(D) the quality and effectiveness of health care and access to health care for all citizens of this state;
(10) develop an annual work plan and establish priorities to accomplish its duties;
(11) provide consumer education on the interpretation and understanding of the public use or provider quality data before the data is disseminated to the public;
(12) work with the Health and Human Services Commission and each health and human services agency that administers a part of the state Medicaid program to avoid duplication of expenditures of state funds for computer systems, staff, or services in the collection and analysis of data relating to the state Medicaid program; (13) work with the Department of Information Resources in developing and implementing the statewide health care data collection system and maintain consistency with Department of Information Resources standards; and
(14) develop and implement a health care information plan to be used by the department to:
(A) support public health and preventative health initiatives; (B) assist in the delivery of primary and preventive health care services;
(C) facilitate the establishment of appropriate benchmark data to measure performance improvements;
(D) establish and maintain a systematic approach to the collection, storage, and analysis of health care data for longitudinal, epidemiological, and policy impact studies; and
(E) develop and use system-based protocols to identify individuals and populations at risk.
(b) The council may: (1) employ or contract with the department to employ an executive director and other staff, including administrative personnel, necessary to comply with this chapter and rules adopted under this chapter;
(2) engage professional consultants as it considers necessary to the performance of its duties;
(3) adopt rules clarifying which health care facilities must provide data under this chapter; and
(4) apply for and receive any appropriation, donation, or other funds from the state or federal government or any other public or private source, subject to Section 108.015 and limitations and conditions provided by legislative appropriation.
(c) The council may not establish or recommend rates of payment for health care services.
(d) The council may not take an action that affects or relates to the validity, status, or terms of an interagency agreement or a contract with the department without the board's approval.
(e) In the collection of data, the council shall consider the research and initiatives being pursued by the United States Department of Health and Human Services, the National Committee for Quality Assurance, and the Joint Commission on Accreditation of Healthcare Organizations to reduce potential duplication or inconsistencies. The council may not adopt rules that conflict with or duplicate any federally mandated data collection programs or requirements of comparable scope.
(f) The council shall prescribe by rule a public use data file minimum data set that maintains patient confidentiality and establishes data accuracy and consistency.
(g) The public use data file minimum data set as defined by council rule is subject to annual review by the council with the assistance of the advisory committee under Section 108.003(g)(5). The purpose of the review is to evaluate requests to modify the existing minimum data set and editing process. A decision to modify the minimum data set by the addition or deletion of data elements shall include consideration of the value of the specific data to be added or deleted and the technical feasibility of establishing data accuracy and consistency. The council may also consider the costs to the council and providers associated with modifying the minimum data set.
(h) In accordance with Section 108.0135, the council may release data collected under Section 108.009 that is not included in the public use data file minimum data set established under Subsection (f).
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 6, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 3, eff. Sept. 1, 1999.
§ 108.0062. DRUG PURCHASING COOPERATIVES. (a) The council shall develop criteria for evaluating drug purchasing cooperatives that purchase drugs on behalf of consumers and create an evaluation form for consumers to evaluate drug purchasing cooperatives.
(b) The council shall distribute the evaluation forms to the department, local health departments, the Texas Department of Insurance, and the consumer protection division of the office of the attorney general.
(c) The council shall compile the information from completed evaluation forms and make the information available to the public.
Added by Acts 2001, 77th Leg., ch. 1256, § 1, eff. Sept. 1, 2001.
§ 108.0065. POWERS AND DUTIES OF COUNCIL RELATING TO MEDICAID MANAGED CARE. (a) In this section:
(1) "Commission" means the Health and Human Services Commission. (2) "Medicaid managed care organization" means a managed care organization, as defined by Section 533.001, Government Code, that is contracting with the commission to implement the Medicaid managed care program under Chapter 533, Government Code.
(b) The commission may direct the council to collect data under this chapter with respect to Medicaid managed care organizations. The council shall coordinate the collection of the data with the collection of data for health benefit plan providers, but with the approval of the commission may collect data in addition to the data otherwise required of health benefit plan providers.
(c) Each Medicaid managed care organization shall provide the data required by the council in the form required by the council or, if the data is also being submitted to the commission or Medicaid operating agency, in the form required by the commission or Medicaid operating agency.
(d) Dissemination of data collected under this section is subject to Sections 108.010, 108.011, 108.012, 108.013, 108.014, and 108.0141.
(e) The commission shall analyze the data collected in accordance with this section and shall use the data to:
(1) evaluate the effectiveness and efficiency of the Medicaid managed care system;
(2) determine the extent to which Medicaid managed care does or does not serve the needs of Medicaid recipients in this state; and
(3) assess the cost-effectiveness of the Medicaid managed care system in comparison to the fee-for-service system, considering any improvement in the quality of care provided.
(f) Not later than October 1 of each even-numbered year, the commission shall report to the governor, the lieutenant governor, and the speaker of the house of representatives with respect to:
(1) the commission's conclusions under Subsection (e) and any improvement made in the delivery of services under the Medicaid managed care system since the date of the commission's last report under this section;
(2) recommendations for implementation by the state agencies operating the Medicaid managed care system for improvement to the Medicaid managed care system; and
(3) any recommendations for legislation. (g) The report made under Subsection (f) may be consolidated with any report made under Section 108.006(a)(9).
(h) The commission, using existing funds, may contract with an entity to comply with the requirements under Subsections (e) and (f).
Added by Acts 1999, 76th Leg., ch. 1460, § 8.03, eff. Sept. 1, 1999.
§ 108.007. REVIEW POWERS. (a) The council, through the department and subject to reasonable rules and guidelines, may:
(1) inspect documents and records used by data sources that are required to compile data and reports; and
(2) compel providers to produce accurate documents and records. (b) The council may enter into a memorandum of understanding with a state agency, including the division of the Health and Human Services Commission responsible for the state Medicaid program, or with a school of public health or another institution of higher education, to share data and expertise, to obtain data for the council, or to make data available to the council. An agreement entered into under this subsection must protect patient confidentiality.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995.
§ 108.008. DUTIES OF DEPARTMENT. (a) The department, as the state health planning and development agency under Chapter 104, is responsible for the collection of data under Chapter 311.
(b) The department shall: (1) contract with the council to collect data under this chapter; (2) provide administrative assistance to the council; (3) coordinate administrative responsibilities with the council to avoid unnecessary duplication of the collection of data and other duties;
(4) on request of the council, give the council access to data collected by the department;
(5) submit or assist in the council's budget request to the legislature; and
(6) work with the Department of Information Resources in developing and implementing the statewide health care data collection system and maintain consistency with Department of Information Resources standards.
(c) The department may not take an action that affects or relates to the validity, status, or terms of an interagency agreement or a contract with the council without the council's approval.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 7, eff. Sept. 1, 1997.
§ 108.0081. MEMORANDUM OF UNDERSTANDING. The council and the department shall enter into a memorandum of understanding to implement the department's duties under Section 108.008(b). The memorandum of understanding must address:
(1) payroll and travel reimbursement services; (2) purchasing services; (3) personnel services; (4) budget management services; (5) computer support and maintenance services; (6) meeting coordination services; (7) any other administrative support or other services to be provided by the department for the council; and
(8) the manner in which the council will reimburse the department for the cost of services provided by the department for the council.
Added by Acts 1997, 75th Leg., ch. 261, § 8, eff. Sept. 1, 1997.
§ 108.0085. DUTIES OF ATTORNEY GENERAL. The attorney general shall furnish the council with advice and legal assistance that may be required to implement this chapter.
Added by Acts 1997, 75th Leg., ch. 261, § 8, eff. Sept. 1, 1997.
§ 108.009. DATA SUBMISSION AND COLLECTION. (a) The council may collect, and, except as provided by Subsections (c) and (d), providers shall submit to the council or another entity as determined by the council, all data required by this section. The data shall be collected according to uniform submission formats, coding systems, and other technical specifications necessary to make the incoming data substantially valid, consistent, compatible, and manageable using electronic data processing, if available.
(b) The council shall adopt rules to implement the data submission requirements imposed by Subsection (a) in appropriate stages to allow for the development of efficient systems for the collection and submission of the data. A rule adopted by the council that requires submission of a data element that, before adoption of the rule, was not required to be submitted may not take effect before the 90th day after the date the rule is adopted and must take effect not later than the first anniversary after the date the rule is adopted.
(c) A rural provider may, but is not required to, provide the data required by this chapter. A hospital may, but is not required to, provide the data required by this chapter if the hospital:
(1) is exempt from state franchise, sales, ad valorem, or other state or local taxes; and
(2) does not seek or receive reimbursement for providing health care services to patients from any source, including:
(A) the patient or any person legally obligated to support the patient; (B) a third-party payor; or (C) Medicaid, Medicare, or any other federal, state, or local program for indigent health care.
(d) The council may not collect data from individual physicians or from an entity that is composed entirely of physicians and that is a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes), a limited liability partnership organized under Section 3.08, Texas Revised Partnership Act (Article 6132b-3.08, Vernon's Texas Civil Statutes), or a limited liability company organized under the Texas Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes), except to the extent the entity owns and operates a health care facility in this state. This subsection does not prohibit the release of data about physicians using uniform physician identifiers that has been collected from a health care facility under this chapter.
(e) The council shall establish the department as the single collection point for receipt of data from providers. With the approval of the council and the board, the department may transfer collection of any data required to be collected by the department under any other law to the statewide health care data collection system.
(f) The council may not require providers to submit data more frequently than quarterly, but providers may submit data on a more frequent basis.
(g) The council shall coordinate data collection with the data collection formats used by federally qualified health centers. To satisfy the requirements of this chapter:
(1) a federally qualified health center shall submit annually to the council a copy of the Medicaid cost report of federally qualified health centers; and
(2) a provider receiving federal funds under 42 U.S.C. Section 254b, 254c, or 256 shall submit annually to the council a copy of the Bureau of Common Reporting Requirements data report developed by the United States Public Health Service.
(h) The council shall coordinate data collection with the data submission formats used by hospitals and other providers. The council shall accept data in the format developed by the National Uniform Billing Committee (Uniform Hospital Billing Form UB 92) and HCFA-1500 or their successors or other universally accepted standardized forms that hospitals and other providers use for other complementary purposes.
(i) The council shall develop by rule reasonable alternate data submission procedures for providers that do not possess electronic data processing capacity.
(j) Repealed by Acts 1997, 75th Leg., ch. 261, § 14, eff. Sept. 1, 1997. (k) The council shall collect health care data elements relating to payer type, the racial and ethnic background of patients, and the use of health care services by consumers.
(l) Repealed by Acts 1997, 75th Leg., ch. 261, § 14, eff. Sept. 1, 1997. (m) To the extent feasible, the council shall obtain from public records the information that is available from those records.
(n) Repealed by Acts 1997, 75th Leg., ch. 261, § 14, eff. Sept. 1, 1997. (o) A provider of a health benefit plan shall annually submit to the council aggregate data by service area required by the Health Plan Employer Data Information Set (HEDIS) as operated by the National Committee for Quality Assurance. The council may approve the submission of data in accordance with other methods generally used by the health benefit plan industry. If the Health Plan Employer Data Information Set does not generally apply to a health benefit plan, the council shall require submission of data in accordance with other methods. This subsection does not relieve a health care facility that provides services under a health benefit plan from the requirements of this chapter. Information submitted under this section is subject to Section 108.011 but is not subject to Section 108.010.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 9, 14, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 4, eff. Sept. 1, 1999.
§ 108.010. COLLECTION AND DISSEMINATION OF PROVIDER QUALITY DATA. (a) Subject to Section 108.009, the council shall collect data reflecting provider quality based on a methodology and review process established through the council's rulemaking process. The methodology shall identify and measure quality standards and adhere to any federal mandates.
(b) The council shall study and analyze initial methodologies for obtaining provider quality data, including outcome data. (c) The council shall test the methodology by collecting provider quality data for one year, subject to Section 108.009. The council may test using pilot methodologies. After collecting provider quality data for one year, the council shall report findings applicable to a provider to that provider and allow the provider to review and comment on the initial provider quality data applicable to that provider. The council shall verify the accuracy of the data during this review and revision process. After the review and revision process, provider quality data for subsequent reports shall be published and made available to the public, on a time schedule the council considers appropriate.
(d) If the council determines that provider quality data to be published under Subsection (c) does not provide the intended result or is inaccurate or inappropriate for dissemination, the council is not required to publish the data or reports based in whole or in part on the data. This subsection does not affect the release of public use data in accordance with Section 108.011 or the release of information submitted under Section 108.009(o).
(e) The council shall adopt rules allowing a provider to submit concise written comments regarding any specific provider quality data to be released concerning the provider. The council shall make the comments available to the public at the office of the council and in an electronic form accessible through the Internet. The comments shall be attached to any public release of provider quality data. Providers shall submit the comments to the council to be attached to the public release of provider quality data in the same format as the provider quality data that is to be released.
(f) The methodology adopted by the council for measuring quality shall include case-mix qualifiers, severity adjustment factors, adjustments for medical education and research, and any other factors necessary to accurately reflect provider quality.
(g) In addition to the requirements of this section, any release of provider quality data shall comply with Sections 108.011(e) and (f).
(h) A provider quality data report may not identify an individual physician by name, but must identify the physician by the uniform physician identifier designated by the council under Section 108.011(c).
(i) The council shall release provider quality data in an aggregate form without uniform physician identifiers when:
(1) the data relates to providers described by Section 108.0025(1); or (2) the cell size of the data is below the minimum size established by council rule that would enable identification of an individual patient or physician.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 10, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 5, eff. Sept. 1, 1999.
§ 108.011. DISSEMINATION OF PUBLIC USE DATA AND COUNCIL PUBLICATIONS. (a) The council shall promptly provide public use data and data collected in accordance with Section 108.009(o) to those requesting it. The public use data does not include provider quality data prescribed by Section 108.010 or confidential data prescribed by Section 108.013.
(b) Subject to the restrictions on access to council data prescribed by Sections 108.010 and 108.013, and using the public use data and other data, records, and matters of record available to it, the council shall prepare and issue reports to the governor, the legislature, and the public as provided by this section and Section 108.006(a). The council must issue the reports at least annually.
(c) Subject to the restrictions on access to council data prescribed by Sections 108.010 and 108.013, the council shall use public use data to prepare and issue reports that provide information relating to providers, such as the incidence rate of selected medical or surgical procedures. The reports must provide the data in a manner that identifies individual providers, including individual physicians, and that identifies and compares data elements for all providers. Individual physicians may not be identified by name, but shall be identified by uniform physician identifiers. The council by rule shall designate the characters to be used as uniform physician identifiers.
(c-1) The council shall use public use data to prepare and issue reports that provide information for review and analysis by the Health and Human Services Commission relating to services that are provided in a niche hospital, as defined by Section 105.002, Occupations Code, and that are provided by a physician with an ownership interest in the niche hospital.
(c-2) Subsection (c-1) does not apply to an ownership interest in publicly available shares of a registered investment company, such as a mutual fund, that owns publicly traded equity securities or debt obligations issued by a niche hospital or an entity that owns the niche hospital.
(d) The council shall adopt procedures to establish the accuracy and consistency of the public use data before releasing the public use data to the public.
(e) If public use data is requested from the council about a specific provider, the council shall notify the provider about the release of the data. This subsection does not authorize the provider to interfere with the release of that data.
(f) A report issued by the council shall include a reasonable review and comment period for the affected providers before public release of the report.
(g) The council shall adopt rules allowing a provider to submit concise written comments regarding any specific public use data to be released concerning the provider. The council shall make the comments available to the public and the office of the council and in an electronic form accessible through the Internet. The comments shall be attached to any public release of the public use data. Providers shall submit the comments to the council to be attached to the public release of public use data in the same format as the public use data that is to be released.
(h) Tapes containing public use data and provider quality reports that are released to the public must include general consumer education material, including an explanation of the benefits and limitations of the information provided in the public use data and provider quality reports.
(i) The council shall release public use data in an aggregate form without uniform physician identifiers when:
(1) the data relates to providers described by Section 108.0025(1); or (2) the cell size of the data is below the minimum size established by council rule that would enable identification of an individual patient or physician.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 11, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 6, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 836, § 4, eff. Sept. 1, 2005.
§ 108.012. COMPUTER ACCESS TO DATA. (a) The council shall provide a means for computer-to-computer access to the public use data. All reports shall maintain patient confidentiality as provided by Section 108.013.
(b) The council may charge a person requesting public use or provider quality data a fee for the data. The fees may reflect the quantity of information provided and the expense incurred by the council in collecting and providing the data and shall be set at a level that will raise revenue sufficient for the operation of the council. The council may not charge a fee for providing public use data to another state agency.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 11, eff. Sept. 1, 1997.
§ 108.013. CONFIDENTIALITY AND GENERAL ACCESS TO DATA. (a) The data received by the council shall be used by the council for the benefit of the public. Subject to specific limitations established by this chapter and council rule, the council shall make determinations on requests for information in favor of access.
(b) The council by rule shall designate the characters to be used as uniform patient identifiers. The basis for assignment of the characters and the manner in which the characters are assigned are confidential.
(c) Unless specifically authorized by this chapter, the council may not release and a person or entity may not gain access to any data:
(1) that could reasonably be expected to reveal the identity of a patient; (2) that could reasonably be expected to reveal the identity of a physician;
(3) disclosing provider discounts or differentials between payments and billed charges;
(4) relating to actual payments to an identified provider made by a payer; or
(5) submitted to the council in a uniform submission format that is not included in the public use data set established under Sections 108.006(f) and (g), except in accordance with Section 108.0135.
(d) All data collected and used by the department and the council under this chapter is subject to the confidentiality provisions and criminal penalties of:
(1) Section 311.037; (2) Section 81.103; and (3) Section 159.002, Occupations Code. (e) Data on patients and compilations produced from the data collected that identify patients are not:
(1) subject to discovery, subpoena, or other means of legal compulsion for release to any person or entity except as provided by this section; or
(2) admissible in any civil, administrative, or criminal proceeding. (f) Data on physicians and compilations produced from the data collected that identify physicians are not:
(1) subject to discovery, subpoena, or other means of legal compulsion for release to any person or entity except as provided by this section; or
(2) admissible in any civil, administrative, or criminal proceeding. (g) The council may not release data elements in a manner that will reveal the identity of a patient. The council may not release data elements in a manner that will reveal the identity of a physician.
(h) Subsections (c) and (g) do not prohibit the release of a uniform physician identifier in conjunction with associated public use data in accordance with Section 108.011 or a provider quality report in accordance with Section 108.010.
(i) Notwithstanding any other law, the council and the department may not provide information made confidential by this section to any other agency of this state.
(j) The council shall by rule, with the assistance of the advisory committee under Section 108.003(g)(5), develop and implement a mechanism to comply with Subsections (c)(1) and (2).
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 261, § 12, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 802, § 7, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, § 14.776, eff. Sept. 1, 2001.
§ 108.0135. SCIENTIFIC REVIEW PANEL. (a) The council shall establish a scientific review panel to review and approve requests for information other than public use data. The members of the panel shall have experience and expertise in ethics, patient confidentiality, and health care data.
(b) To assist the panel in determining whether to approve a request for information, the council shall adopt rules similar to the federal Health Care Financing Administration's guidelines on releasing data.
(c) A request for information other than public use data must be made on the form created by the council.
Added by Acts 1999, 76th Leg., ch. 802, § 8, eff. Sept. 1, 1999.
§ 108.014. CIVIL PENALTY. (a) A person who knowingly or negligently releases data in violation of this chapter is liable for a civil penalty of not more than $10,000.
(b) A person who fails to supply available data under Sections 108.009 and 108.010 is liable for a civil penalty of not less than $1,000 or more than $10,000 for each act of violation.
(c) The attorney general, at the request of the council, shall enforce this chapter. The venue of an action brought under this section is in Travis County.
(d) A civil penalty recovered in a suit instituted by the attorney general under this chapter shall be deposited in the general revenue fund to the credit of the health care information account.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 802, § 9, eff. Sept. 1, 1999.
§ 108.0141. CRIMINAL PENALTY. (a) A person who knowingly accesses data in violation of this chapter or who with criminal negligence releases data in violation of this chapter commits an offense.
(b) An offense under this section is a state jail felony.
Added by Acts 1997, 75th Leg., ch. 261, § 13, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 802, § 10, eff. Sept. 1, 1999.
§ 108.015. CONFLICT OF INTEREST. The council may not accept a donation from a person required to provide data under this chapter or from a person or business entity who provides goods or services to the council for compensation.
Added by Acts 1995, 74th Leg., ch. 726, § 1, eff. Sept. 1, 1995. § 110.001. CREATION OF FOUNDATION. (a) The Office of Rural Community Affairs shall establish the Rural Foundation as a nonprofit corporation that complies with the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes), except as otherwise provided by this chapter, and qualifies as an organization exempt from federal income tax under Section 501(c)(3), Internal Revenue Code of 1986, as amended.
(b) The Office of Rural Community Affairs shall ensure that the Rural Foundation operates independently of any state agency or political subdivision of the state.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 9, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(h), eff. Sept. 1, 2003.
§ 110.002. POWERS AND DUTIES. (a) The Rural Foundation shall raise money from foundations, governmental entities, and other sources to finance health, community, and economic development programs in the rural areas of the state.
(b) The Rural Foundation shall have the powers that are necessary and convenient to carry out its duties.
(c) The Rural Foundation shall develop and implement policies and procedures that clearly separate the responsibilities and activities of the foundation from the Office of Rural Community Affairs.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 10, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(i), eff. Sept. 1, 2003.
§ 110.003. BOARD OF DIRECTORS. (a) The Rural Foundation is governed by a board of five directors appointed by the executive committee of the Office of Rural Community Affairs from individuals recommended by the executive director of the Office of Rural Community Affairs.
(b) Members of the board of directors of the Rural Foundation serve for staggered terms of six years, with as near as possible to one-third of the members' terms expiring February 1 of each odd-numbered year.
(c) Appointments to the board of directors of the Rural Foundation shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(d) The board of directors of the Rural Foundation shall ensure that the foundation remains eligible for an exemption from federal income tax under Section 501(a), Internal Revenue Code of 1986, as amended, by being listed as an exempt organization under Section 501(c)(3) of that code, as amended.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 3, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 11, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(j), eff. Sept. 1, 2003.
§ 110.004. RESTRICTIONS ON BOARD APPOINTMENT, MEMBERSHIP, AND EMPLOYMENT. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A person may not be a member of the board of directors of the Rural Foundation and may not be a foundation employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), as amended, if:
(1) the person is an officer, employee, or paid consultant of a Texas trade association that is in the field of health care or that contracts with the foundation; or
(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association that is in the field of health care or that contracts with the foundation.
(c) A person may not be a member of the board of directors of the Rural Foundation or act as the general counsel to the board of directors or the foundation if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the foundation.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 4, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 12, eff. Sept. 1, 2003.
§ 110.005. REMOVAL OF BOARD MEMBER. (a) It is a ground for removal from the board of directors of the Rural Foundation that a member:
(1) is ineligible for membership under Section 110.004; (2) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(3) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board of directors.
(b) The validity of an action of the board of directors of the Rural Foundation is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) If the executive director of the Office of Rural Community Affairs has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of directors of the Rural Foundation of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board of directors, who shall then notify the governor and the attorney general that a potential ground for removal exists.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 5, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 13, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(k), eff. Sept. 1, 2003.
§ 110.006. VACANCY. A vacancy on the board of directors of the Rural Foundation shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001.
§ 110.007. OFFICERS. The board of directors of the Rural Foundation shall elect from among its members a presiding officer, an assistant presiding officer, and other officers the board considers necessary. The presiding officer and assistant presiding officer serve for a period of one year and may be reelected.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001.
§ 110.008. MEETINGS. The board of directors of the Rural Foundation may meet as often as necessary, but shall meet at least twice a year.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001.
§ 110.009. TAX EXEMPTION. All income, property, and other assets of the Rural Foundation are exempt from taxation by the state and political subdivisions of the state.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001.
§ 110.010. MEMORANDUM OF UNDERSTANDING. The Rural Foundation and the Office of Rural Community Affairs shall enter into a memorandum of understanding that:
(1) requires the board of directors and staff of the foundation to report to the executive director and executive committee of the Office of Rural Community Affairs;
(2) allows the Office of Rural Community Affairs to provide staff functions to the foundation;
(3) allows the Office of Rural Community Affairs to expend funds on the foundation; and
(4) outlines the financial contributions to be made to the foundation from funds obtained from grants and other sources.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 6, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 14, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(l), eff. Sept. 1, 2003.
§ 110.011. RECORDS. (a) The Rural Foundation shall maintain financial records and reports independently from those of the Office of Rural Community Affairs.
(b) The Rural Foundation shall comply with all filing requirements of the secretary of state and the Internal Revenue Service.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 7, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 15, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(m), eff. Sept. 1, 2003.
§ 110.012. REPORT TO OFFICE OF RURAL COMMUNITY AFFAIRS. Not later than the 60th day after the last day of the fiscal year, the Rural Foundation shall submit to the Office of Rural Community Affairs a report itemizing all income and expenditures and describing all activities of the foundation during the preceding fiscal year.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 65, § 8, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 609, § 16, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, § 9.006(n), eff. Sept. 1, 2003.
§ 110.013. PROHIBITED USE OF FUNDS. Funds administered by the Rural Foundation may not be used to provide an abortion or a referral for an abortion, unless there is a medically necessary reason to provide the referral.
Added by Acts 2001, 77th Leg., ch. 1221, § 1, eff. Sept. 1, 2001. § 111.001. DEFINITION. In this chapter, "council" means the Interagency Council on Pharmaceuticals Bulk Purchasing.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.001 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003.
§ 111.002. BULK PURCHASING COUNCIL. The Interagency Council on Pharmaceuticals Bulk Purchasing is composed of an officer or employee from each of the following agencies, appointed by the administrative head of that agency:
(1) the Texas Department of Health; (2) the Texas Department of Mental Health and Mental Retardation; (3) the Correctional Managed Health Care Committee; (4) the Employees Retirement System of Texas; (5) the Teacher Retirement System of Texas; and (6) any other agency that purchases pharmaceuticals designated by the commissioner of health and human services.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.002 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003.
§ 111.003. PRESIDING OFFICER. The position of presiding officer rotates among the members of the council according to the procedures adopted by the council. A term as presiding officer is two years and expires on February 1 of each odd-numbered year.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.003 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003.
§ 111.004. COMPENSATION. Service on the council is an additional duty of a member's office or employment. A member of the council is not entitled to compensation, but is entitled to reimbursement of travel expenses incurred by the member while conducting the business of the council, as provided in the General Appropriations Act.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.004 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003.
§ 111.005. SUPPORT STAFF. The council's member agencies shall provide the staff for the council.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.005 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003.
§ 111.006. COUNCIL POWERS AND DUTIES. (a) The council shall develop procedures that member agencies must follow in purchasing pharmaceuticals. A member agency may elect not to follow the council's procedures if the agency can purchase the pharmaceuticals for a lower price than through the council. An agency that does not follow the council's procedures shall report to the council:
(1) the purchase price for the pharmaceuticals; and (2) the name of the wholesaler, retailer, or manufacturer selling the pharmaceuticals.
(b) The council shall designate one member agency to be the central purchasing agency for purchasing pharmaceuticals.
(c) The council shall use existing distribution networks, including wholesale and retail distributors, to distribute the pharmaceuticals.
(d) The council shall: (1) investigate any and all options for better purchasing power, including expanding Medicaid purchasing, qualifying for participation in purchasing programs under 42 U.S.C. Section 256b, as amended, and using rebate programs, hospital disproportionate share purchasing, and health department and federally qualified health center purchasing; and
(2) make recommendations regarding drug utilization review, prior authorization, the use of restrictive formularies, the use of mail order programs, and copayment structures to member agencies.
(e) In conducting the investigation under Subsection (d), the council shall monitor the progress of the demonstration project for certain medications and related services established by Section 32.053, Human Resources Code, as added by S.B. 1156, Acts of the 77th Legislature, Regular Session, 2001, and make no recommendations inconsistent with a prescribed medical regime for those medications.
(f) The council may enter into agreements with a local governmental entity to purchase pharmaceuticals for the local governmental entity.
(g) The council shall develop procedures under which the council may disclose information relating to the prices that manufacturers or wholesalers charge for pharmaceuticals by category of pharmaceutical. The council may not disclose information that identifies a specific manufacturer or wholesaler or the prices charged by a specific manufacturer or wholesaler for a specific pharmaceutical.
Added by Acts 2001, 77th Leg., ch. 1003, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Health & Safety Code § 110.006 by Acts 2003, 78th Leg., ch. 1275, § 2(90), eff. Sept. 1, 2003. § 112.001. DEFINITIONS. In this chapter: (1) "Board of directors" means the board of directors of the Border Health Foundation.
(2) "Foundation" means the Border Health Foundation.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.002. CREATION OF FOUNDATION. (a) The department shall establish the Border Health Foundation as a nonprofit corporation that complies with the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes), except as otherwise provided by this chapter, and qualifies as an organization exempt from federal income tax under Section 501(c)(3), Internal Revenue Code of 1986, as amended.
(b) The department shall ensure that the foundation operates independently of any state agency or political subdivision of this state.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.003. POWERS AND DUTIES. (a) The foundation shall raise money from other foundations, governmental entities, and other sources to finance health programs in areas adjacent to the border with the United Mexican States.
(b) The foundation shall: (1) identify and seek potential partners in the private sector that will afford this state the opportunity to maintain or increase the existing levels of financing of health programs and activities;
(2) engage in outreach efforts to make the existence of the office known to potential partners throughout this area; and
(3) perform any other function necessary to carry out the purposes of this section.
(c) The department shall review programs from all agencies under its control to determine which projects should be available to receive money under Subsection (a).
(d) The foundation has the powers necessary and convenient to carry out its duties.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 1215, § 6, eff. Sept. 1, 2005.
§ 112.004. ADMINISTRATION. (a) The foundation is governed by a board of five directors. Vacancies shall be filled by a vote of the board of directors of the foundation from individuals recommended by the department.
(b) Members of the board of directors serve for staggered terms of six years, with as near as possible to one-third of the members' terms expiring every two years.
(c) Appointments to the board of directors shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(d) The board of directors shall ensure that the foundation remains eligible for an exemption from federal income tax under Section 501(a), Internal Revenue Code of 1986, as amended, by being listed as an exempt organization under Section 501(c)(3) of that code, as amended.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 1215, § 7, eff. Sept. 1, 2005.
§ 112.005. RESTRICTIONS ON BOARD APPOINTMENT, MEMBERSHIP, AND EMPLOYMENT. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A person may not be a member of the board of directors and may not be a foundation employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), as amended, if:
(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or
(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care.
(c) A person may not be a member of the board of directors or act as the general counsel to the board of directors or the foundation if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the foundation.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.006. REMOVAL OF BOARD MEMBER. (a) It is a ground for removal from the board of directors that a member:
(1) is ineligible for membership under Section 112.005; (2) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(3) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board of directors.
(b) The validity of an action of the board of directors is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c) The foundation in its articles or bylaws shall establish the manner in which a board member may be removed under this section and may establish other grounds for removal of a member.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.007. VACANCY. A vacancy on the board of directors shall be filled for the remainder of the unexpired term in the same manner as provided in Section 112.004(a).
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.008. OFFICERS. The board of directors shall elect from among its members a presiding officer, an assistant presiding officer, and other necessary officers. The presiding officer and assistant presiding officer serve for a period of one year and may be reelected.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.009. MEETINGS. The board of directors may meet as often as necessary, but shall meet at least twice a year.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.010. TAX EXEMPTION. All income, property, and other assets of the foundation are exempt from taxation by this state and political subdivisions of this state.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.011. MEMORANDUM OF UNDERSTANDING. The foundation and the department shall enter into a memorandum of understanding that:
(1) requires the board of directors and staff of the foundation to report to the commissioner and department;
(2) allows the department to provide staff functions to the foundation; and
(3) outlines the financial contributions to be made to the foundation from funds obtained from grants and other sources.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.012. FUNDING. (a) The department, another agency of this state, including an institution of higher education as defined by Section 61. 003, Education Code, or a political subdivision of this state may contract with the foundation to finance, on behalf of the department, agency, or political subdivision, health programs described by Section 112.003.
(b) The foundation may apply for and accept funds from the federal government or any other public or private entity. The foundation or any member of the foundation may also solicit and accept pledges, gifts, and endowments from private sources on the foundation's behalf. The foundation may only accept a pledge, gift, or endowment solicited under this section that is consistent with the purposes of the foundation.
(c) The board of directors of the foundation shall manage and approve disbursements of funds, pledges, gifts, and endowments that are the property of the foundation.
(d) The board of directors of the foundation shall manage any capital improvements constructed, owned, or leased by the foundation and any real property acquired by the foundation.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.013. RECORDS. (a) The foundation shall maintain financial records and reports independently from those of the department.
(b) The foundation shall comply with all filing requirements of the secretary of state and the Internal Revenue Service.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 112.014. REPORT TO DEPARTMENT. Not later than the 60th day after the last day of the fiscal year, the foundation shall submit to the department a report itemizing all income and expenditures and describing all activities of the foundation during the preceding fiscal year.
Added by Acts 2003, 78th Leg., ch. 198, § 2.54(a), eff. Sept. 1, 2003.
§ 113.001. DEFINITIONS. In this chapter: (1) "Council" means the Texas Health Care Policy Council. (2) "Partnership" means the Texas Health Workforce Planning Partnership.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.002. COMPOSITION OF COUNCIL. (a) The council is within the office of the governor and shall report to the governor or the governor's designee.
(b) The council is composed of the administrative head of the following agencies or that person's designee:
(1) the Health and Human Services Commission; (2) the Department of State Health Services; (3) the Department of Aging and Disability Services; (4) the Texas Workforce Commission; (5) the Texas Higher Education Coordinating Board; (6) the Texas Department of Insurance; (7) the Employees Retirement System of Texas; (8) the Teacher Retirement System of Texas; (9) each health care related licensing agency identified by the governor; and
(10) any other state agency or system of higher education identified by the governor that purchases or provides health care services.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.003. ADVISORY COMMITTEES AND AD HOC COMMITTEES; TEXAS HEALTH WORKFORCE PLANNING PARTNERSHIP. (a) The council may form advisory and ad hoc committees as necessary to accomplish the council's purpose, including committees composed of health care experts from the public and private sectors to review policy matters related to the council's purpose.
(b) The Texas Health Workforce Planning Partnership is a standing subcommittee of the council and is composed of:
(1) the members of the council representing: (A) the Health and Human Services Commission; (B) the Department of State Health Services; (C) the Texas Workforce Commission; (D) the Texas Higher Education Coordinating Board; and (E) any other state agency or system of higher education identified by the governor that impacts health care workforce planning; and
(2) the administrative head of the following agencies or that person's designee:
(A) the Health Professions Council; and (B) the Office of Rural Community Health Affairs. (c) The partnership shall monitor the health care workforce needs of the state, including monitoring the number and type of health care workers in the state by region and the health care workforce needs of the state, identifying any changes in the number of health care workers or health care workforce needs, and monitoring the quality of care provided by the health care workforce.
(d) The partnership shall: (1) undertake and implement appropriate health care workforce planning activities; and
(2) research and identify ways to increase funding for health care, including obtaining money from federal, state, private, or public sources.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.004. COMPENSATION AND EXPENSES. Service on the council or the partnership is an additional duty of a member's office or employment. A member of the council or the partnership is not entitled to compensation but is entitled to reimbursement of travel expenses incurred by the member while conducting the business of the council or the partnership, as provided in the General Appropriations Act.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.005. MEETINGS. (a) The council shall meet at least once each year. The council may meet at other times at the call of the presiding officer or as provided by the rules of the council.
(b) The council is a governmental body for purposes of the open meetings law, Chapter 551, Government Code.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.006. DIRECTOR; STAFF. (a) The council shall, subject to the approval of the governor, hire a director to serve as the chief executive officer of the council and to perform the administrative duties of the council.
(b) The director serves at the will of the council. (c) The director may hire staff within guidelines established by the council.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.007. FUNDING. Each state agency represented on the council shall provide funds for the support of the council and to implement this chapter. The council, with the governor's approval, shall establish a funding formula to determine the level of support each state agency must provide.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.008. EQUAL EMPLOYMENT OPPORTUNITY. (a) The director or the director's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin.
(b) The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the council to avoid the unlawful employment practices described by Chapter 21, Labor Code; and
(2) an analysis of the extent to which the composition of the council's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law.
(c) The policy statement must: (1) be updated annually; (2) be reviewed by the civil rights division of the Texas Workforce Commission for compliance with Subsection (b)(1); and
(3) be filed with the governor's office.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.009. QUALIFICATIONS AND STANDARDS OF CONDUCT. The director or the director's designee shall provide to members of the council and to council employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.010. RESEARCH PROJECTS; REPORT. (a) The council shall identify gaps, flaws, inefficiencies, or problems in the health care system that create systemic or substantial negative impacts on the participants in the health care system, study those problems, and identify possible solutions for the state or other participants in the system.
(b) Not later than September 1 after each regular session of the legislature, the speaker of the house of representatives and the lieutenant governor may submit health care related issues to the governor for referral to the council. The health care related issues may include:
(1) disparities in quality and levels of care; (2) problems for uninsured individuals; (3) the cost of pharmaceuticals; (4) the cost of health care; (5) access to health care; (6) the quality of health care; or (7) any other issue related to health care. (c) The governor shall refer health care related issues to the council for research and analysis. The governor shall prioritize the issues for the council. The council shall study those issues identified by the governor and identify possible solutions for the state or other participants in the health care system.
(d) Not later than December 31 of each even-numbered year, the council shall submit a report of the council's findings and recommendations to the governor, lieutenant governor, and speaker of the house of representatives.
(e) The report submitted under Subsection (d) must include recommendations from the partnership and any other advisory body formed under Section 113.003.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.011. PURCHASE OF HEALTH CARE PRODUCTS OR SERVICES. The council shall ensure the most effective collaboration among state agencies in the purchase of health care products or services. As a state agency develops an expertise in purchasing health care products or services, that agency shall assist other agencies in the purchase of the same products or services.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.012. USE OF TECHNOLOGY IN HEALTH CARE. (a) The council shall facilitate and promote the use of technology in the health care system as a way to decrease administrative costs and to increase and improve the quality of health care.
(b) The council shall monitor, research, and promote initiatives relating to patient safety and the use of telemedicine and telehealth.
(c) The council shall coordinate its activities with other offices and state agencies that are primarily focused on the use of technology or the use of technology in health care.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.013. INFORMATION RESOURCE. (a) The council shall establish a clearinghouse of information to assist communities in assessing the needs of local health care systems. The council shall:
(1) collect information on innovative health care service delivery models and make that information available to communities;
(2) provide information on grants and technical assistance in the application process; and
(3) collect information on the development and testing of quality measures.
(b) The council shall investigate the best ways to collect, compare, and communicate the information to local communities.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
§ 113.014. COORDINATION WITH OTHER ORGANIZATIONS. (a) The council may coordinate its research and reporting activities with other public or private entities performing research on health care policy or other topics related to the mission of the council, including academic institutions and nonprofit organizations.
(b) The council may contract with public or private entities to perform its research and reporting activities.
Added by Acts 2005, 79th Leg., ch. 1016, § 1, eff. June 18, 2005.
SUBCHAPTER A. GENERAL PROVISIONS
§ 113.001. DEFINITIONS. In this chapter: (1) "Council" means the Texas Organ, Tissue, and Eye Donor Council. (2) "Commissioner" means the commissioner of state health services. (3) "Department" means the Department of State Health Services. (4) "Public safety director" means the public safety director of the Department of Public Safety.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.002. SUNSET PROVISION; ABOLISHMENT. The Texas Organ, Tissue, and Eye Donor Council is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this chapter expires September 1, 2017, unless the department and the council mutually determine that the public interest is best served by abolition of the council and agree to abolish the council on an earlier date.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
SUBCHAPTER B. COUNCIL
§ 113.051. COMPOSITION OF COUNCIL. (a) The council is composed of: (1) a representative of the department appointed by the commissioner; (2) a representative of the Department of Public Safety appointed by the public safety director;
(3) a representative of the Texas Department of Transportation appointed by the executive director of that agency;
(4) five professional members appointed by the commissioner as follows: (A) one representative from each of the state's three federally qualified organ procurement organizations nominated by each organization;
(B) one representative who is a transplant physician or nurse licensed in this state; and
(C) one representative of an acute care hospital in this state; and (5) two public members appointed by the commissioner. (b) A public member of the council must: (1) be a donor, recipient, or member of a donor's family; and (2) be selected from a pool of members compiled from the recommendations of the following nonprofit organizations in the field of transplantation and organ donor education:
(A) the Texas Medical Association; (B) the Texas Transplantation Society; (C) the Transplant Nurses' Association; (D) the National Kidney Foundation; (E) the National Minority Organ Tissue Transplant Education Program; and (F) the American Society of Minority Health and Transplant Professionals. (c) A member of the council who is a representative of an agency of this state is a nonvoting member of the council.
(d) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.052. MEMBERSHIP ELIGIBILITY. A person is not eligible for appointment as a professional or public member of the council if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization receiving funds from the council or from the department regarding a matter on which the council advises the department;
(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving funds from the council or from the department regarding a matter on which the council advises the department; or
(3) uses or receives a substantial amount of tangible goods, services, or funds from the council or from the department regarding a matter on which the council advises the department, other than compensation or reimbursement authorized by law for council membership, attendance, or expenses.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.053. TERMS; VACANCY. (a) Council members appointed by the commissioner serve for staggered six-year terms, with the terms of two or three members, as applicable, expiring February 1 of each odd-numbered year.
(b) A council member appointed as a representative of an agency serves at the will of the appointing agency.
(c) If a vacancy occurs, the commissioner or other appropriate appointing authority shall appoint a person, in the same manner as the original appointment, to serve for the remainder of the unexpired term.
(d) An appointed member may not serve more than one term consecutively.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.054. PRESIDING OFFICER. The commissioner shall designate a public member of the council as the presiding officer of the council to serve in that capacity at the will of the commissioner.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.055. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the council that a member:
(1) does not have at the time of taking office the qualifications required by this chapter;
(2) does not maintain during service on the council the qualifications required by this chapter;
(3) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(4) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the council.
(b) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists.
(c) If the commissioner has knowledge that a potential ground for removal exists, the commissioner shall notify the presiding officer of the council of the potential ground. The presiding officer shall then notify the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the director shall notify the next highest ranking officer or most senior member of the council, who shall then notify the attorney general that a potential ground for removal exists.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.056. MEETINGS; QUORUM. (a) The council shall meet at least twice each calendar year and at the call of the presiding officer.
(b) The council shall adopt bylaws for the conduct of its meetings. (c) Any action taken by the council requires two-thirds of the members to be present and the action must be approved by a majority of the members present.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.057. COMPENSATION. (a) A member of the council may not receive compensation for service on the council.
(b) A member shall be reimbursed for the member's actual and necessary expenses for meals, lodging, transportation, and incidental expenses incurred while performing council business, subject to any applicable limitation on reimbursement prescribed by the General Appropriations Act.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.058. INFORMATION ABOUT STANDARDS OF CONDUCT. The commissioner or the commissioner's designee shall provide to members of the council, as often as necessary, information regarding the requirements for membership on the council under this chapter, including information regarding a person's responsibilities under laws relating to applicable standards of conduct.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
SUBCHAPTER C. COUNCIL POWERS AND DUTIES
§ 113.101. GENERAL DUTIES. The council as required by the department shall:
(1) advise the department concerning the Donor Education, Awareness, and Registry Program of Texas established under Chapter 49;
(2) advise the department on priorities for the initiatives to be implemented under the Donor Education, Awareness, and Registry Program of Texas established under Chapter 49;
(3) advise the department regarding donor education, awareness, and registry outreach specifically targeted at African American and Hispanic populations;
(4) advise the commissioner, public safety director, and director of the Texas Department of Transportation on the allocation of money received by the comptroller for the activities authorized under Chapter 49; and
(5) advise the department, Department of Public Safety, and the Texas Department of Transportation regarding necessary performance standards and quality control measures concerning the operation of the statewide Internet-based donor registry, as well as related donor educational programs.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.102. REPORT. Before December 1 of each even-numbered year, the council shall submit a report of the council's activities and recommendations to the governor, lieutenant governor, speaker of the house of representatives, and members of the legislature.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.103. AUDIT. The financial transactions pertaining to the council are subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005.
§ 113.104. COSTS IN ADMINISTERING PROGRAM. Ten percent of all money collected under Sections 521.421(g), 521.422(c), and 502.1745, Transportation Code, may be appropriated only to the department to administer this chapter.
Added by Acts 2005, 79th Leg., ch. 1186, § 5, eff. June 18, 2005. § 122.001. COUNTY FUNDING FOR PUBLIC HEALTH AND SANITATION. The commissioners court of a county may appropriate and spend money from the county general revenues for public health and sanitation in the county.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.002. HEALTH UNIT IN COUNTY WITH POPULATION OF LESS THAN 22,000. (a) The commissioners court of a county with a population of less than 22,000 may impose an ad valorem tax at a rate not to exceed five cents on each $100 of the taxable value of property taxable by the county for:
(1) the creation of a county health unit; (2) vaccines and medical services required to immunize schoolchildren and indigent persons from communicable diseases; and
(3) medical treatment for indigent persons who are not entitled to treatment under Chapter 61 (Indigent Health Care and Treatment Act).
(b) This section is effective for a county only if it is approved by a majority of the voters of the county at an election called for that purpose by the commissioners court on receipt of a petition signed by at least five percent of the property taxpaying voters in the county.
(c) The commissioners court may pay not more than half of the costs of medical treatment and immunization for an indigent person who is not entitled to treatment under Chapter 61 (Indigent Health Care and Treatment Act).
(d) A commissioners court that creates a county health unit under this section shall create a county health unit fund. The proceeds of the tax shall be deposited to the credit of that fund. Amounts in the fund shall be used for the purposes for which the commissioners court may impose a tax under Subsection (a).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.003. HEALTH UNIT IN COUNTY WITH POPULATION OF 22,200 TO 22,500. (a) The commissioners court of a county with a population of 22,200 to 22,500 may impose an ad valorem tax at a rate not to exceed 10 cents on each $100 of the taxable value of property taxable by the county for:
(1) the creation of a county health unit; (2) vaccines and medical services required to immunize schoolchildren and indigent persons from communicable diseases; and
(3) medical treatment or hospitalization of indigent persons who are not entitled to treatment or hospitalization under Chapter 61 (Indigent Health Care and Treatment Act).
(b) The commissioners court may pay not more than half of the costs of medical treatment or hospitalization for an indigent person who is not entitled to treatment under Chapter 61 (Indigent Health Care and Treatment Act).
(c) A commissioners court that creates a county health unit under this section shall create a county health unit fund. The proceeds of the tax shall be deposited to the credit of that fund. Amounts in the fund shall be used for the purposes for which the commissioners court may impose a tax under Subsection (a).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.004. APPROPRIATION TO HOSPITAL ESTABLISHED BY DONATION. If a fund of at least $50,000 is left by will or otherwise to establish and maintain a hospital in a municipality with a population of at least 10,000, the governing body of that municipality or the commissioners court of the county in which the municipality is located may make an appropriation to the hospital, in an amount that the governing body or commissioners court considers proper, to provide hospitalization and medical and surgical services for indigent residents of the municipality or county who are sick or wounded.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.005. POWERS OF TYPE A GENERAL-LAW MUNICIPALITY. (a) The governing body of a Type A general-law municipality may take any action necessary or expedient to promote health or suppress disease, including actions to:
(1) prevent the introduction of a communicable disease into the municipality, including stopping, detaining, and examining a person coming from a place that is infected or believed to be infected with a communicable disease; (2) establish, maintain, and regulate hospitals in the municipality or in any area within five miles of the municipal limits; or
(3) abate any nuisance that is or may become injurious to the public health.
(b) The governing body of a Type A general-law municipality may adopt rules:
(1) necessary or expedient to promote health or suppress disease; or (2) to prevent the introduction of a communicable disease into the municipality, including quarantine rules, and may enforce those rules in the municipality and in any area within 10 miles of the municipality.
(c) The governing body of a Type A general-law municipality may fine a person who fails or refuses to observe the orders and rules of the health authority.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.006. POWERS OF HOME-RULE MUNICIPALITIES. A home-rule municipality may:
(1) adopt rules to protect the health of persons in the municipality, including quarantine rules to protect the residents against communicable disease; and
(2) provide for the establishment of quarantine stations, emergency hospitals, and other hospitals.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 122.007. ESTABLISHMENT OF MEDICAL CLINICS IN CERTAIN COUNTIES. (a) The commissioners court of a county with a population of less than 20,000 may establish a medical clinic for the provision of health care services. (b) The commissioners court may determine the types of health care services to be provided at the clinic, including medical care and treatment provided by a licensed physician, nursing care provided by a registered nurse, and dental care provided by a licensed dentist.
(c) The commissioners court may: (1) purchase land on which to construct the clinic; (2) construct the clinic, lease space for the clinic, or purchase and develop an existing building for the clinic; and
(3) operate or contract for the operation of the clinic. (d) A county with a population of less than 20,000 that constructs a medical clinic under this section may continue to operate the clinic and exercise the powers provided by this section after the county exceeds that population.
Added by Acts 1991, 72nd Leg., ch. 758, § 1, eff. Aug. 26, 1991.
§ 122.008. EMPLOYMENT FOR PUBLIC SCHOOLS AND COMPENSATION. (a) The commissioners court of a county may employ one or more registered nurses to visit the public schools in the county.
(b) A nurse employed under Subsection (a) shall: (1) investigate the health conditions and sanitary surroundings of the schools and the personal, physical, and health condition of students in the schools;
(2) cooperate with the Texas Department of Health and local health authorities; and
(3) perform other duties required by the commissioners court.
Added by Acts 1999, 76th Leg., ch. 388, § 4, eff. Sept. 1, 1999. § 142.001. DEFINITIONS. In this chapter: (1) "Administrative support site" means a facility or site where a home and community support services agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services.
(2) "Alternate delivery site" means a facility or site, including a residential unit or an inpatient unit:
(A) that is owned or operated by a hospice; (B) that is not the hospice's principal place of business; (C) that is located in the geographical area served by the hospice; and (D) from which the hospice provides hospice services. (3) "Bereavement" means the process by which a survivor of a deceased person mourns and experiences grief.
(4) "Bereavement services" means support services offered to a family during bereavement.
(5) "Branch office" means a facility or site in the geographical area served by a home and community support agency where home health or personal assistance services are delivered or active client records are maintained.
(6) "Certified agency" means a home and community support services agency, or a portion of the agency, that:
(A) provides a home health service; and (B) is certified by an official of the Department of Health and Human Services as in compliance with conditions of participation in Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.).
(7) "Certified home health services" means home health services that are provided by a certified agency.
(8) "Chief financial officer" means an individual who is responsible for supervising and managing all financial activities for a home and community support services agency.
(9) "Controlling person" means a person who controls a home and community support services agency or other person as described by Section 142.0012.
(10) "Council" means the Home and Community Support Services Advisory Council.
(11) "Counselor" means an individual qualified under Medicare standards to provide counseling services, including bereavement, dietary, spiritual, and other counseling services, to both the client and the family.
(12) "Home and community support services agency" means a person who provides home health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location.
(13) "Home health service" means the provision of one or more of the following health services required by an individual in a residence or independent living environment:
(A) nursing, including blood pressure monitoring and diabetes treatment; (B) physical, occupational, speech, or respiratory therapy; (C) medical social service; (D) intravenous therapy; (E) dialysis; (F) service provided by unlicensed personnel under the delegation or supervision of a licensed health professional;
(G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or
(H) nutritional counseling. (14) "Hospice" means a person licensed under this chapter to provide hospice services, including a person who owns or operates a residential unit or an inpatient unit.
(15) "Hospice services" means services, including services provided by unlicensed personnel under the delegation of a registered nurse or physical therapist, provided to a client or a client's family as part of a coordinated program consistent with the standards and rules adopted under this chapter. These services include palliative care for terminally ill clients and support services for clients and their families that:
(A) are available 24 hours a day, seven days a week, during the last stages of illness, during death, and during bereavement;
(B) are provided by a medically directed interdisciplinary team; and (C) may be provided in a home, nursing home, residential unit, or inpatient unit according to need. These services do not include inpatient care normally provided in a licensed hospital to a terminally ill person who has not elected to be a hospice client.
(16) "Inpatient unit" means a facility that provides a continuum of medical or nursing care and other hospice services to clients admitted into the unit and that is in compliance with:
(A) the conditions of participation for inpatient units adopted under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.); and
(B) standards adopted under this chapter. (17) "Independent living environment" means: (A) a client's individual residence, which may include a group home or foster home; or
(B) other settings where a client participates in activities, including school, work, or church.
(18) "Interdisciplinary team" means a group of individuals who work together in a coordinated manner to provide hospice services and must include a physician, registered nurse, social worker, and counselor.
(19) "Investigation" means an inspection or survey conducted by a representative of the department to determine if a licensee is in compliance with this chapter.
(20) "Palliative care" means intervention services that focus primarily on the reduction or abatement of physical, psychosocial, and spiritual symptoms of a terminal illness.
(21) "Person" means an individual, corporation, or association. (22) "Personal assistance service" means routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes:
(A) personal care; (B) health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Board of Nurse Examiners through a memorandum of understanding with the department in accordance with Section 142.016; and
(C) health-related tasks provided by unlicensed personnel under the delegation of a registered nurse or that a registered nurse determines do not require delegation.
(22-a) "Personal care" means the provision of one or more of the following services required by an individual in a residence or independent living environment:
(A) bathing; (B) dressing; (C) grooming; (D) feeding; (E) exercising; (F) toileting; (G) positioning; (H) assisting with self-administered medications; (I) routine hair and skin care; and (J) transfer or ambulation. (23) "Place of business" means an office of a home and community support services agency that maintains client records or directs home health, hospice, or personal assistance services. The term does not include an administrative support site.
(24) "Residence" means a place where a person resides and includes a home, a nursing home, a convalescent home, or a residential unit.
(25) "Residential unit" means a facility that provides living quarters and hospice services to clients admitted into the unit and that is in compliance with standards adopted under this chapter.
(26) "Respite services" means support options that are provided temporarily for the purpose of relief for a primary caregiver in providing care to individuals of all ages with disabilities or at risk of abuse or neglect.
(27) "Social worker" means an individual licensed as a social worker under Chapter 505, Occupations Code.
(28) "Support services" means social, spiritual, and emotional care provided to a client and a client's family by a hospice.
(29) "Terminal illness" means an illness for which there is a limited prognosis if the illness runs its usual course.
(30) "Volunteer" means an individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991. 72nd Leg., ch. 14, § 42, 43, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, § 3, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 702, § 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, § 2.193, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 892, § 25, eff. Sept. 1, 2003.
§ 142.0011. SCOPE, PURPOSE, AND IMPLEMENTATION. (a) The purpose of this chapter is to ensure that home and community support services agencies in this state deliver the highest possible quality of care. This chapter and the rules adopted under this chapter establish minimum standards for acceptable quality of care, and a violation of a minimum standard established or adopted under this chapter is a violation of law. For purposes of this chapter, components of quality of care include:
(1) client independence and self-determination; (2) humane treatment; (3) continuity of care; (4) coordination of services; (5) professionalism of service providers; (6) quality of life; and (7) client satisfaction with services. (b) The department shall protect clients of home and community support services agencies by regulating those agencies and:
(1) adopting rules relating to quality of care and quality of life; (2) strictly monitoring factors relating to the health, safety, welfare, and dignity of each client;
(3) imposing prompt and effective remedies for violations of this chapter and rules and standards adopted under this chapter;
(4) enabling agencies to provide services that allow clients to maintain the highest possible degree of independence and self-determination; and
(5) providing the public with helpful and understandable information relating to agencies in this state.
Added by Acts 1999, 76th Leg., ch. 276, § 2, eff. Sept. 1, 1999.
§ 142.0012. CONTROLLING PERSON. (a) A person is a controlling person if the person, acting alone or with others, has the ability to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a home and community support services agency or other person.
(b) For purposes of this chapter, "controlling person" includes: (1) a management company or other business entity that operates or contracts with others for the operation of a home and community support services agency;
(2) a person who is a controlling person of a management company or other business entity that operates a home and community support services agency or that contracts with another person for the operation of a home and community support services agency; and
(3) any other individual who, because of a personal, familial, or other relationship with the owner, manager, or provider of a home and community support services agency, is in a position of actual control or authority with respect to the agency, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the agency.
(c) A controlling person described by Subsection (b)(3) does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a home and community support services agency.
(d) The department may adopt rules that specify the ownership interests and other relationships that qualify a person as a controlling person.
Added by Acts 1999, 76th Leg., ch. 276, § 2, eff. Sept. 1, 1999.
§ 142.002. LICENSE REQUIRED. (a) Except as provided by Section 142.003, a person, including a health care facility licensed under this code, may not engage in the business of providing home health, hospice, or personal assistance services, or represent to the public that the person is a provider of home health, hospice, or personal assistance services for pay without a home and community support services agency license authorizing the person to perform those services issued by the department for each place of business from which home health, hospice, or personal assistance services are directed. A certified agency must have a license to provide certified home health services.
(b) A person who is not licensed to provide home health services under this chapter may not indicate or imply that the person is licensed to provide home health services by the use of the words "home health services" or in any other manner.
(c) A person who is not licensed to provide hospice services under this chapter may not use the word "hospice" in a title or description of a facility, organization, program, service provider, or services or use any other words, letters, abbreviations, or insignia indicating or implying that the person holds a license to provide hospice services under this chapter.
(d) A license to provide hospice services issued under this chapter authorizes a hospice to own or operate a residential unit or inpatient unit at the licensed site in compliance with the standards and rules adopted under this chapter.
(e) A license issued under this chapter may not be transferred to another person, but may be transferred from one location to another location. A change of ownership or location shall be reported to the department.
(f) A person who is not licensed to provide personal assistance services under this chapter may not indicate or imply that the person is licensed to provide personal assistance services by the use of the words "personal assistance services" or in any other manner.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 4, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 198, § 2.194, eff. Sept. 1, 2003.
§ 142.0025. TEMPORARY LICENSE. If a person is in the process of becoming certified by the Department of Health and Human Services to qualify as a certified agency, the department may issue a temporary home and community support services agency license to the person authorizing the person to provide certified home health services. A temporary license is effective as provided by board rules.
Added by Acts 1991, 72nd Leg., ch. 14, § 44, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 800, § 5, eff. Sept. 1, 1993.
§ 142.003. EXEMPTIONS FROM LICENSING REQUIREMENT. (a) The following persons need not be licensed under this chapter:
(1) a physician, dentist, registered nurse, occupational therapist, or physical therapist licensed under the laws of this state who provides home health services to a client only as a part of and incidental to that person's private office practice;
(2) a registered nurse, licensed vocational nurse, physical therapist, occupational therapist, speech therapist, medical social worker, or any other health care professional as determined by the department who provides home health services as a sole practitioner;
(3) a registry that operates solely as a clearinghouse to put consumers in contact with persons who provide home health, hospice, or personal assistance services and that does not maintain official client records, direct client services, or compensate the person who is providing the service;
(4) an individual whose permanent residence is in the client's residence; (5) an employee of a person licensed under this chapter who provides home health, hospice, or personal assistance services only as an employee of the license holder and who receives no benefit for providing the services, other than wages from the license holder;
(6) a home, nursing home, convalescent home, assisted living facility, special care facility, or other institution for individuals who are elderly or who have disabilities that provides home health or personal assistance services only to residents of the home or institution;
(7) a person who provides one health service through a contract with a person licensed under this chapter;
(8) a durable medical equipment supply company; (9) a pharmacy or wholesale medical supply company that does not furnish services, other than supplies, to a person at the person's house;
(10) a hospital or other licensed health care facility that provides home health or personal assistance services only to inpatient residents of the hospital or facility;
(11) a person providing home health or personal assistance services to an injured employee under Title 5, Labor Code;
(12) a visiting nurse service that: (A) is conducted by and for the adherents of a well-recognized church or religious denomination; and
(B) provides nursing services by a person exempt from licensing by Section 301.004, Occupations Code, because the person furnishes nursing care in which treatment is only by prayer or spiritual means;
(13) an individual hired and paid directly by the client or the client's family or legal guardian to provide home health or personal assistance services;
(14) a business, school, camp, or other organization that provides home health or personal assistance services, incidental to the organization's primary purpose, to individuals employed by or participating in programs offered by the business, school, or camp that enable the individual to participate fully in the business's, school's, or camp's programs;
(15) a person or organization providing sitter-companion services or chore or household services that do not involve personal care, health, or health-related services;
(16) a licensed health care facility that provides hospice services under a contract with a hospice;
(17) a person delivering residential acquired immune deficiency syndrome hospice care who is licensed and designated as a residential AIDS hospice under Chapter 248;
(18) the Texas Department of Criminal Justice; (19) a person that provides home health, hospice, or personal assistance services only to persons enrolled in a program funded wholly or partly by the Texas Department of Mental Health and Mental Retardation and monitored by the Texas Department of Mental Health and Mental Retardation or its designated local authority in accordance with standards set by the Texas Department of Mental Health and Mental Retardation; or
(20) an individual who provides home health or personal assistance services as the employee of a consumer or an entity or employee of an entity acting as a consumer's fiscal agent under Section 531.051, Government Code.
(b) A home and community support services agency that owns or operates an administrative support site is not required to obtain a separate license under this chapter for the administrative support site.
(c) A hospice that operates or provides hospice services to an inpatient unit under a contract with a licensed health care facility is not required to obtain an alternate delivery site license for that inpatient unit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 6, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 769, § 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 276, § 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, § 14.777, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, § 2.55, eff. Sept. 1, 2003.
§ 142.004. LICENSE APPLICATION. (a) An applicant for a license to provide home health, hospice, or personal assistance services must:
(1) file a written application on a form prescribed by the department indicating the type of service the applicant wishes to provide;
(2) cooperate with any surveys required by the department for a license; and
(3) pay the license fee prescribed by this chapter. (b) In addition to the requirements of Subsection (a), if the applicant is a certified agency when the application for a license to provide certified home health services is filed, the applicant must maintain its Medicare certification. If the applicant is not a certified agency when the application for a license to provide certified home health services is filed, the applicant must establish that it is in the process of receiving its certification from the United States Department of Health and Human Services.
(c) The board by rule shall require that, at a minimum, before the department may approve a license application, the applicant must provide to the department:
(1) documentation establishing that, at a minimum, the applicant has sufficient financial resources to provide the services required by this chapter and by the department during the term of the license;
(2) a list of the management personnel for the proposed home and community support services agency, a description of personnel qualifications, and a plan for providing continuing training and education for the personnel during the term of the license;
(3) documentation establishing that the applicant is capable of meeting the minimum standards established by the board relating to the quality of care;
(4) a plan that provides for the orderly transfer of care of the applicant's clients if the applicant cannot maintain or deliver home health, hospice, or personal assistance services under the license;
(5) identifying information on the home and community support services agency owner, administrator, and chief financial officer to enable the department to conduct criminal background checks on those persons;
(6) identification of any controlling person with respect to the applicant; and
(7) documentation relating to any controlling person identified under Subdivision (6), if requested by the department and relevant to the controlling person's compliance with any applicable licensing standard required or adopted by the board under this chapter.
(d) Information received by the department relating to the competence and financial resources of the applicant or a controlling person with respect to the applicant is confidential and may not be disclosed to the public.
(e) A home and community support services agency owned or operated by a state agency directly providing services is not required to provide the information described in Subsections (c)(1) and (5).
(f) The department shall evaluate and consider all information collected during the application process.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 45, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, § 7, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, § 4, eff. Sept. 1, 1999.
§ 142.005. COMPLIANCE RECORD IN OTHER STATES. The department may require an applicant or license holder to provide the department with information relating to compliance by the applicant, the license holder, or a controlling person with respect to the applicant or license holder with regulatory requirements in any other state in which the applicant, license holder, or controlling person operates or operated a home and community support services agency.
Added by Acts 1999, 76th Leg., ch. 276, § 5, eff. Sept. 1, 1999.
§ 142.006. LICENSE ISSUANCE; TERM. (a) The department shall issue a home and community support services agency license to provide home health, hospice, or personal assistance services for each place of business to an applicant if:
(1) the applicant: (A) qualifies for the license to provide the type of service that is to be offered by the applicant;
(B) submits an application and license fee as required by this chapter; and
(C) complies with all applicable licensing standards required or adopted by the board under this chapter; and
(2) any controlling person with respect to the applicant complies with all applicable licensing standards required or adopted by the board under this chapter.
(b) A license issued under this chapter expires one year after the date of issuance. The department may issue an initial license for a term of less than one year to conform expiration dates for a locality or an applicant. The department, in accordance with board rules, may issue a temporary license to an applicant for an initial license.
(c) The department may find that a home and community support services agency has satisfied the requirements for licensing if the agency is accredited by an accreditation organization, such as the Joint Commission on Accreditation of Healthcare Organizations or the Community Health Accreditation Program, and the department finds that the accreditation organization has standards that meet or exceed the requirements for licensing under this chapter. A license fee is required of the home and community support services agency at the time of a license application.
(d) to (f) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.156(a)(1). (g) The license must designate the types of services that the home and community support services agency is authorized to provide at or from the designated place of business.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 8, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, § 6, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, § 2.156(a)(1), eff. Sept. 1, 2003.
§ 142.0061. POSSESSION OF STERILE WATER OR SALINE . A home and community support services agency or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to their home health or hospice patients under physician's orders:
(1) sterile water for injection and irrigation; and (2) sterile saline for injection and irrigation.
Added by Acts 1993, 73rd Leg., ch. 16, § 1, eff. April 2, 1993. Amended by Acts 1993, 73rd Leg., ch. 789, § 23, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 307, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997.
§ 142.0062. POSSESSION OF CERTAIN VACCINES OR TUBERCULIN. (a) A home and community support services agency or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to the agency's employees, home health or hospice patients, or patient family members under physician's standing orders the following dangerous drugs:
(1) hepatitis B vaccine; (2) influenza vaccine; (3) tuberculin purified protein derivative for tuberculosis testing; and (4) pneumococcal polysaccharide vaccine. (b) A home and community support services agency that purchases, stores, or transports a vaccine or tuberculin under this section shall ensure that any standing order for the vaccine or tuberculin:
(1) is signed and dated by the physician; (2) identifies the vaccine or tuberculin covered by the order; (3) indicates that the recipient of the vaccine or tuberculin has been assessed as an appropriate candidate to receive the vaccine or tuberculin and has been assessed for the absence of any contraindication;
(4) indicates that appropriate procedures are established for responding to any negative reaction to the vaccine or tuberculin; and
(5) orders that a specific medication or category of medication be administered if the recipient has a negative reaction to the vaccine or tuberculin.
Added by Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 198, § 2.195, eff. Sept. 1, 2003.
§ 142.0063. POSSESSION OF CERTAIN DANGEROUS DRUGS. (a) A home and community support services agency in compliance with this section or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to their home health or hospice patients in accordance with Subsection (c) the following dangerous drugs:
(1) any of the following items in a sealed portable container of a size determined by the dispensing pharmacist:
(A) 1,000 milliliters of 0.9 percent sodium chloride intravenous infusion;
(B) 1,000 milliliters of five percent dextrose in water injection; or (C) sterile saline; or (2) not more than five dosage units of any of the following items in an individually sealed, unused portable container:
(A) heparin sodium lock flush in a concentration of 10 units per milliliter or 100 units per milliliter;
(B) epinephrine HCl solution in a concentration of 1 to 1,000; (C) diphenhydramine HCl solution in a concentration of 50 milligrams per milliliter;
(D) methylprednisolone in a concentration of 125 milligrams per two milliliters;
(E) naloxone in a concentration of one milligram per milliliter in a two-milliliter vial;
(F) promethazine in a concentration of 25 milligrams per milliliter; (G) glucagon in a concentration of one milligram per milliliter; (H) furosemide in a concentration of 10 milligrams per milliliter; (I) lidocaine 2.5 percent and prilocaine 2.5 percent cream in a five-gram tube; or
(J) lidocaine HCl solution in a concentration of one percent in a two-milliliter vial.
(b) A home and community support services agency or the agency's authorized employees may purchase, store, or transport dangerous drugs in a sealed portable container under this section only if the agency has established policies and procedures to ensure that:
(1) the container is handled properly with respect to storage, transportation, and temperature stability;
(2) a drug is removed from the container only on a physician's written or oral order;
(3) the administration of any drug in the container is performed in accordance with a specific treatment protocol; and
(4) the agency maintains a written record of the dates and times the container is in the possession of a registered nurse or licensed vocational nurse.
(c) A home and community support services agency or the agency's authorized employee who administers a drug listed in Subsection (a) may administer the drug only in the patient's residence under physician's orders in connection with the provision of emergency treatment or the adjustment of:
(1) parenteral drug therapy; or (2) vaccine or tuberculin administration. (d) If a home and community support services agency or the agency's authorized employee administers a drug listed in Subsection (a) pursuant to a physician's oral order, the physician shall promptly send a signed copy of the order to the agency, and the agency shall:
(1) not later than 24 hours after receipt of the order, reduce the order to written form and send a copy of the form to the dispensing pharmacy by mail or facsimile transmission; and
(2) not later than 20 days after receipt of the order, send a copy of the order as signed by and received from the physician to the dispensing pharmacy.
(e) A pharmacist that dispenses a sealed portable container under this section shall ensure that the container:
(1) is designed to allow access to the contents of the container only if a tamper-proof seal is broken;
(2) bears a label that lists the drugs in the container and provides notice of the container's expiration date, which is the earlier of:
(A) the date that is six months after the date on which the container is dispensed; or
(B) the earliest expiration date of any drug in the container; and (3) remains in the pharmacy or under the control of a pharmacist, registered nurse, or licensed vocational nurse.
(f) If a home and community support services agency or the agency's authorized employee purchases, stores, or transports a sealed portable container under this section, the agency shall deliver the container to the dispensing pharmacy for verification of drug quality, quantity, integrity, and expiration dates not later than the earlier of:
(1) the seventh day after the date on which the seal on the container is broken; or
(2) the date for which notice is provided on the container label. (g) A pharmacy that dispenses a sealed portable container under this section shall take reasonable precautionary measures to ensure that the home and community support services agency receiving the container complies with Subsection (f). On receipt of a container under Subsection (f), the pharmacy shall perform an inventory of the drugs used from the container and shall restock and reseal the container before delivering the container to the agency for reuse.
Added by Acts 1997, 75th Leg., ch. 1129, § 1, eff. Sept. 1, 1997.
§ 142.0065. DISPLAY OF LICENSE. A license issued under this chapter shall be displayed in a conspicuous place in the designated place of business and must show:
(1) the name and address of the licensee; (2) the name of the owner or owners, if different from the information provided under Subdivision (1);
(3) the license expiration date; and (4) the types of services authorized to be provided under the license.
Added by Acts 1993, 73rd Leg., ch. 800, § 9, eff. Sept. 1, 1993.
§ 142.007. NOTICE OF DRUG TESTING POLICY. An agency licensed under this chapter shall provide to the following persons a written statement describing the agency's policy for the drug testing of employees who have direct contact with clients:
(1) each person applying for services from the agency; and (2) any person requesting the information.
Added by Acts 1999, 76th Leg., ch. 1020, § 1, eff. Sept. 1, 1999.
§ 142.008. BRANCH OFFICE. (a) The department may issue a branch office license to a person who holds a license to provide home health or personal assistance services.
(b) The board by rule shall establish eligibility requirements for a branch office license.
(c) A branch office license expires on the same date as the license to provide home health or personal assistance services held by the applicant for the branch office license.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 10, eff. Sept. 1, 1993.
§ 142.0085. ALTERNATE DELIVERY SITE LICENSE. (a) The department shall issue an alternate delivery site license to a qualified hospice.
(b) The board by rule shall establish standards required for the issuance of an alternate delivery site license.
(c) An alternate delivery site license expires on the same date as the license to provide hospice services held by the hospice.
Added by Acts 1993, 73rd Leg., ch. 800, § 11, eff. Sept. 1, 1993.
§ 142.009. SURVEYS; CONSUMER COMPLAINTS. (a) The department or its representative may enter the premises of a license applicant or license holder at reasonable times to conduct a survey incidental to the issuance of a license and at other times as the department considers necessary to ensure compliance with this chapter and the rules adopted under this chapter.
(b) A home and community support services agency shall provide each person who receives home health, hospice, or personal assistance services with a written statement that contains the name, address, and telephone number of the department and a statement that informs the recipient that a complaint against a home and community support services agency may be directed to the department.
(c) The department or its authorized representative shall investigate each complaint received regarding the provision of home health, hospice, or personal assistance services and may, as a part of the investigation:
(1) conduct an unannounced survey of a place of business, including an inspection of medical and personnel records, if the department has reasonable cause to believe that the place of business is in violation of this chapter or a rule adopted under this chapter;
(2) conduct an interview with a recipient of home health, hospice, or personal assistance services, which may be conducted in the recipient's home if the recipient consents;
(3) conduct an interview with a family member of a recipient of home health, hospice, or personal assistance services who is deceased or other person who may have knowledge of the care received by the deceased recipient of the home health, hospice, or personal assistance services; or
(4) interview a physician or other health care practitioner, including a member of the personnel of a home and community support services agency, who cares for a recipient of home health, hospice, or personal assistance services.
(d) The reports, records, and working papers used or developed in an investigation made under this section are confidential and may not be released or made public except:
(1) to a state or federal agency; (2) to federal, state, or local law enforcement personnel; (3) with the consent of each person identified in the information released;
(4) in civil or criminal litigation matters or licensing proceedings as otherwise allowed by law or judicial rule;
(5) on a form developed by the department that identifies any deficiencies found without identifying a person, other than the home and community support services agency;
(6) on a form required by a federal agency if: (A) the information does not reveal the identity of an individual, including a patient or a physician or other medical practitioner;
(B) the service provider subject to the investigation had a reasonable opportunity to review the information and offer comments to be included with the information released or made public; and
(C) the release of the information complies with any other federal requirement; or
(7) as provided by Section 142.0092. (e) The department's representative shall hold a conference with the person in charge of the home and community support services agency before beginning the on-site survey to explain the nature and scope of the survey. When the survey is completed, the department's representative shall hold a conference with the person who is in charge of the agency and shall identify any records that were duplicated. Agency records may be removed from an agency only with the agency's consent.
(f) The department shall fully inform the person who is in charge of the home and community support services agency of the preliminary findings of the survey and shall give the person a reasonable opportunity to submit additional facts or other information to the department's authorized representative in response to those findings. The response shall be made a part of the record of the survey for all purposes.
(g) After a survey of a home and community support services agency by the department, the department shall provide to the chief executive officer of the agency:
(1) specific and timely written notice of the preliminary findings of the survey, including:
(A) the specific nature of the survey; (B) any alleged violations of a specific statute or rule; (C) the specific nature of any finding regarding an alleged violation or deficiency; and
(D) if a deficiency is alleged, the severity of the deficiency; (2) information on the identity, including the signature, of each department representative conducting, reviewing, or approving the results of the survey and the date on which the department representative acted on the matter; and
(3) if requested by the agency, copies of all documents relating to the survey maintained by the department or provided by the department to any other state or federal agency that are not confidential under state law.
(h) Except for the investigation of complaints, a home and community support services agency licensed by the department under this chapter is not subject to additional surveys relating to home health, hospice, or personal assistance services while the agency maintains accreditation for the applicable service from the Joint Commission for Accreditation of Healthcare Organizations, the Community Health Accreditation Program, or other accreditation organizations that meet or exceed the regulations adopted under this chapter. Each provider must submit to the department documentation from the accrediting body indicating that the provider is accredited when the provider is applying for the initial license and annually when the license is renewed.
(i) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.156(a)(1). (j) Except as provided by Subsections (h) and (l), an on-site survey must be conducted within 18 months after a survey for an initial license. After that time, an on-site survey must be conducted at least every 36 months.
(k) If a person is renewing or applying for a license to provide more than one type of service under this chapter, the surveys required for each of the services the license holder or applicant seeks to provide shall be completed during the same surveyor visit.
(l) The department and other state agencies that are under the Health and Human Services Commission and that contract with home and community support services agencies to deliver services for which a license is required under this chapter shall execute a memorandum of understanding that establishes procedures to eliminate or reduce duplication of standards or conflicts between standards and of functions in license, certification, or compliance surveys and complaint investigations. The Health and Human Services Commission shall review the recommendation of the council relating to the memorandum of understanding before considering approval. The memorandum of understanding must be approved by the commission.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 46, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, § 12, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, § 7, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, § 2.56, 2.156(a)(1), eff. Sept. 1, 2003.
§ 142.0091. SURVEYOR TRAINING. (a) The department shall provide specialized training to representatives of the department who survey home and community support services agencies. The training must include information relating to:
(1) the conduct of appropriate surveys that do not focus exclusively on medical standards under an acute care model; and
(2) acceptable delegation of nursing tasks. (b) In developing and updating the training required by this section, the department shall consult with and include providers of home health, hospice, and personal assistance services, recipients of those services and their family members, and representatives of appropriate advocacy organizations.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0092. CONSUMER COMPLAINT DATA. (a) The department shall maintain records or documents relating to complaints directed to the department by consumers of home health, hospice, or personal assistance services. The department shall organize the records or documents according to standard, statewide categories as determined by the department. In determining appropriate categories, the department shall make distinctions based on factors useful to the public in assessing the quality of services provided by a home and community support services agency, including whether the complaint:
(1) was determined to be valid or invalid; (2) involved significant physical harm or death to a patient; (3) involved financial exploitation of a patient; or (4) resulted in any sanction imposed against the agency. (b) The department shall make the information maintained under this section available to the public in a useful format that does not identify individuals implicated in the complaints.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0093. RETALIATION PROHIBITED. (a) A person licensed under this chapter may not retaliate against another person for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, or personal assistance services provided by the license holder.
(b) This section does not prohibit a license holder from terminating an employee for a reason other than retaliation.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.0094. USE OF REGULATORY SURVEY REPORTS AND OTHER DOCUMENTS. (a) Except as otherwise provided by this section, a survey report or other document prepared by the department that relates to regulation of a home and community support services agency is not admissible as evidence in a civil action to prove that the agency violated a standard prescribed under this chapter.
(b) Subsection (a) does not: (1) bar the admission into evidence of department survey reports or other documents in an enforcement action in which the state or an agency or political subdivision of the state is a party, including:
(A) an action seeking injunctive relief under Section 142.013; (B) an action seeking imposition of a civil penalty under Section 142.014;
(C) a contested case hearing involving imposition of an administrative penalty under Section 142.017; and
(D) a contested case hearing involving denial, suspension, or revocation of a license issued under this chapter;
(2) bar the admission into evidence of department survey reports or other documents that are offered:
(A) to establish warning or notice to a home and community support services agency of a relevant department determination; or
(B) under any rule or evidentiary predicate of the Texas Rules of Evidence;
(3) prohibit or limit the testimony of a department employee, in accordance with the Texas Rules of Evidence, as to observations, factual findings, conclusions, or determinations that a home and community support services agency violated a standard prescribed under this chapter if the observations, factual findings, conclusions, or determinations were made in the discharge of the employee's official duties for the department; or
(4) prohibit or limit the use of department survey reports or other documents in depositions or other forms of discovery conducted in connection with a civil action if use of the survey reports or other documents appears reasonably calculated to lead to the discovery of admissible evidence.
Added by Acts 1999, 76th Leg., ch. 276, § 8, eff. Sept. 1, 1999.
§ 142.010. FEES. (a) The board shall set license fees for home and community support services agencies in amounts that are reasonable to meet the costs of administering this chapter, except that the fees may not be less than $300 or more than $1,000 for a license to provide home health, hospice, or personal assistance services.
(b) The board shall consider the size of the home and community support services agency, the number of clients served, the number of services provided, and the necessity for review of other accreditation documentation in determining the amount of initial and renewal license fees.
(c) A fee charged under this section is nonrefundable.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 13, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 5, eff. Sept. 1, 1997.
§ 142.0105. LICENSE RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the department before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed.
(b) A person whose license has been expired for 90 days or less may renew the license by paying to the department a renewal fee that is equal to 1-1/2 times the normally required renewal fee.
(c) A person whose license has been expired for more than 90 days may obtain a new license by complying with the requirements and procedures for obtaining an original license.
(d) Not later than the 60th day before the date a person's license is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department.
Added by Acts 1999, 76th Leg., ch. 887, § 1, eff. Sept. 1, 1999.
§ 142.011. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. (a) The department may deny a license application or suspend or revoke the license of a person who:
(1) fails to comply with the rules or standards for licensing required by this chapter; or
(2) engages in conduct that violates Section 161.091. (b) The department may immediately suspend or revoke a license when the health and safety of persons are threatened. If the department issues an order of immediate suspension or revocation, the department shall immediately give the chief executive officer of the home and community support services agency adequate notice of the action taken, the legal grounds for the action, and the procedure governing appeal of the action. A person whose license is suspended or revoked under this subsection is entitled to a hearing not later than the seventh day after the effective date of the suspension or revocation.
(c) The department may suspend or revoke a home and community support services agency's license to provide certified home health services if the agency fails to maintain its certification qualifying the agency as a certified agency. A home and community support services agency that is licensed to provide certified home health services and that submits a request for a hearing as provided by Subsection (d) is subject to the requirements of this chapter relating to a home and community support services agency that is licensed to provide home health services, but not certified home health services, until the suspension or revocation is finally determined by the department or, if the license is suspended or revoked, until the last day for seeking review of the department order or a later date fixed by order of the reviewing court.
(d) A person whose application is denied or whose license is suspended or revoked is entitled to a hearing before the department if the person submits a written request to the department. Chapter 2001, Government Code and the department's rules for contested case hearings apply to hearings conducted under this section and to appeals from department decisions.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 47, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, § 14, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 276, § 9, eff. Sept. 1, 1999.
§ 142.012. POWERS AND DUTIES. (a) The board, with the recommendations of the council, shall adopt rules necessary to implement this chapter.
(b) The board by rule shall set minimum standards for home and community support services agencies licensed under this chapter that relate to:
(1) qualifications for professional and nonprofessional personnel, including volunteers;
(2) supervision of professional and nonprofessional personnel, including volunteers;
(3) the provision and coordination of treatment and services, including support and bereavement services, as appropriate;
(4) the management, ownership, and organizational structure, including lines of authority and delegation of responsibility and, as appropriate, the composition of an interdisciplinary team;
(5) clinical and business records; (6) financial ability to carry out the functions as proposed; (7) safety, fire prevention, and sanitary standards for residential units and inpatient units; and
(8) any other aspects of home health, hospice, or personal assistance services as necessary to protect the public.
(c) The initial minimum standards adopted by the board under Subsection (b) for hospice services must be at least as stringent as the conditions of participation for a Medicare certified provider of hospice services in effect on April 30, 1993, under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.).
(d) The department shall prescribe forms necessary to perform its duties. (e) The department shall require each person or home and community support services agency providing home health, hospice, or personal assistance services to implement and enforce the applicable provisions of Chapter 102, Human Resources Code.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 15, eff. Sept. 1, 1993.
§ 142.013. INJUNCTION. (a) A district court, on petition of the department and on a finding by the court that a person is violating this chapter, may by injunction:
(1) prohibit the person from continuing the violation; or (2) grant any other injunctive relief warranted by the facts. (b) The attorney general shall institute and conduct a suit authorized by this section at the request of the department and in the name of the state.
(c) A suit for injunctive relief must be brought in Travis County.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 142.014. CIVIL PENALTY. (a) A person who engages in the business of providing home health, hospice, or personal assistance service, or represents to the public that the person is a provider of home health, hospice, and personal assistance services for pay, without a license issued under this chapter authorizing the services that are being provided is liable for a civil penalty of not less than $1,000 or more than $2,500 for each day of violation. Penalties may be appropriated only to the department and to administer this chapter.
(b) An action to recover a civil penalty is in addition to an action brought for injunctive relief under Section 142.013 or any other remedy provided by law. The attorney general shall bring suit on behalf of the state to collect the civil penalty.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, § 16, eff. Sept. 1, 1993.
§ 142.0145. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) The department shall assess an administrative penalty against a home and community support services agency that violates Section 166.004.
(b) A penalty assessed under this section shall be $500. (c) The penalty shall be assessed in accordance with department rules. The rules must provide for notice and an opportunity for a hearing.
Added by Acts 1999, 76th Leg., ch. 450, § 2.02, eff. Sept. 1, 1999.
§ 142.015. ADVISORY COUNCIL. (a) The Home and Community Support Services Advisory Council is composed of the following 13 members, appointed by the governor:
(1) three consumer representatives; (2) two representatives of agencies that are licensed to provide certified home health services;
(3) two representatives of agencies that are licensed to provide home health services but are not certified home health services;
(4) three representatives of agencies that are licensed to provide hospice services, with one representative appointed from:
(A) a community-based non-profit provider of hospice services; (B) a community-based proprietary provider of hospice services; and (C) a hospital-based provider of hospice services; and (5) three representatives of agencies that are licensed to provide personal assistance services.
(b) Repealed by Acts 1991, 72nd Leg., 1st C.S., ch. 17, § 7.01(18), eff. Nov. 12, 1991.
(c) The council shall advise the department on licensing standards and on the implementation of this chapter. At each meeting of the council, the department shall provide an analysis of enforcement actions taken under this chapter, including the type of enforcement action, the results of the action, and the basis for the action. The council may advise the department on its implementation of the enforcement provisions of this chapter.
(d) Members of the council serve staggered two-year terms, with the terms of seven members expiring on January 31 of each even-numbered year and the terms of six members expiring on January 31 of each odd-numbered year.
(e) The council shall elect a presiding officer from among its members to preside at meetings and to notify members of meetings. The presiding officer shall serve for one year and may not serve in that capacity for more than two years.
(f) The council shall meet at least once a year and may meet at other times at the call of the presiding officer, any three members of the council, or the commissioner.
(g) Members of the council serve without compensation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 48, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 17, § 7.01(18), eff. Nov. 12, 1991; Acts 1993, 73rd Leg., ch. 800, § 17, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 6, eff. Sept. 1, 1997.
§ 142.016. MEMORANDUM OF UNDERSTANDING RELATING TO NURSING SERVICES; GUIDELINES. (a) The Board of Nurse Examiners and the department shall adopt a memorandum of understanding governing the circumstances under which the provision of health-related tasks or services do not constitute the practice of professional nursing. The agencies periodically shall review and shall renew or modify the memorandum as necessary.
(b) The Board of Nurse Examiners and the department shall consult with an advisory committee in developing, modifying, or renewing the memorandum of understanding. The advisory committee shall be appointed by the Board of Nurse Examiners and the department and at a minimum shall include:
(1) one representative from the Board of Nurse Examiners and one representative from the department to serve as cochairmen;
(2) one representative from the Texas Department of Mental Health and Mental Retardation;
(3) one representative from the Texas Nurses Association; (4) one representative from the Texas Association for Home Care, Incorporated, or its successor;
(5) one representative from the Texas Hospice Organization, Incorporated, or its successor;
(6) one representative of the Texas Respite Resource Network or its successor; and
(7) two representatives of organizations such as the Personal Assistance Task Force or the Disability Consortium that advocate for clients in community-based settings.
(c) The department shall prepare guidelines according to the memorandum of understanding required by Subsection (a) for licensed home and community support services agencies in providing personal assistance services to clients.
Added by Acts 1993, 73rd Leg., ch. 800, § 18, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 198, § 2.196, eff. Sept. 1, 2003.
§ 142.017. ADMINISTRATIVE PENALTY. (a) The department may assess an administrative penalty against a person who violates:
(1) this chapter or a rule adopted under this chapter; or (2) Section 102.001, Occupations Code, if the violation relates to the provision of home health, hospice, or personal assistance services.
(b) The penalty shall be not less than $100 or more than $1,000 for each violation. Each day of a violation that occurs before the day on which the person receives written notice of the violation from the department does not constitute a separate violation and shall be considered to be one violation. Each day of a continuing violation that occurs after the day on which the person receives written notice of the violation from the department constitutes a separate violation.
(c) The department by rule shall specify each violation for which an administrative penalty may be assessed. In determining which violations warrant penalties, the department shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients; and
(2) whether the affected home and community support services agency had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction.
(d) The department by rule shall establish a schedule of appropriate and graduated penalties for each violation based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or safety of clients;
(2) the history of previous violations by the person or a controlling person with respect to that person;
(3) whether the affected home and community support services agency had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction;
(4) the amount necessary to deter future violations; (5) efforts made to correct the violation; and (6) any other matters that justice may require. (e) The department by rule shall provide the home and community support services agency with a reasonable period of time following the first day of a violation to correct the violation before assessing an administrative penalty if a plan of correction has been implemented.
(f) An administrative penalty may not be assessed for minor violations unless those violations are of a continuing nature or are not corrected.
(g) The department shall establish a system to ensure standard and consistent application of penalties regardless of the home and community support services agency location.
(h) All proceedings for the assessment of an administrative penalty under this chapter are subject to Chapter 2001, Government Code.
(i) The department may not assess an administrative penalty against a state agency.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 276, § 10, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, § 14.778, eff. Sept. 1, 2001.
§ 142.0171. NOTICE; REQUEST FOR HEARING. (a) If, after investigation of a possible violation and the facts surrounding that possible violation, the department determines that a violation has occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice shall include:
(1) a brief summary of the alleged violation; (2) a statement of the amount of the proposed penalty based on the factors listed in Section 142.017(d); and
(3) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(b) Not later than the 20th day after the date on which the notice is received, the person notified may accept the determination of the department made under this section, including the proposed penalty, or may make a written request for a hearing on that determination.
(c) If the person notified of the violation accepts the determination of the department or if the person fails to respond in a timely manner to the notice, the commissioner or the commissioner's designee shall issue an order approving the determination and ordering that the person pay the proposed penalty.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0172. HEARING; ORDER. (a) If the person notified requests a hearing, the department shall:
(1) set a hearing; (2) give written notice of the hearing to the person; and (3) designate a hearings examiner to conduct the hearing. (b) The hearings examiner shall make findings of fact and conclusions of law and shall promptly issue to the commissioner or the commissioner's designee a proposal for decision as to the occurrence of the violation and a recommendation as to the amount of the proposed penalty if a penalty is determined to be warranted.
(c) Based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the commissioner or the commissioner's designee by order may find that a violation has occurred and may assess a penalty or may find that no violation has occurred.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0173. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. (a) The department shall give notice of the order under Section 142.0172(c) to the person alleged to have committed the violation. The notice must include:
(1) separate statements of the findings of fact and conclusions of law; (2) the amount of any penalty assessed; and (3) a statement of the right of the person to judicial review of the order.
(b) Not later than the 30th day after the date on which the decision is final as provided by Chapter 2001, Government Code, the person shall:
(1) pay the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(c) Within the 30-day period, a person who acts under Subsection (b)(3) may:
(1) stay enforcement of the penalty by: (A) paying the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail. (d) If the department receives a copy of an affidavit under Subsection (c)(2), the department may file with the court, within 10 days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.
(e) If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.
(f) Judicial review of the order: (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule. (g) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(h) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty under Subsection (b)(2) and if that amount is reduced or is not upheld by the court, the court shall order that the department pay the appropriate amount plus accrued interest to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person paid the penalty under Subsection (c)(1)(A), or gave a supersedeas bond, and if the amount of the penalty is not upheld by the court, the court shall order the release of the escrow account or bond. If the person paid the penalty under Subsection (c)(1)(A) and the amount of the penalty is reduced, the court shall order that the amount of the penalty be paid to the department from the escrow account and that the remainder of the account be released. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.0174. USE OF ADMINISTRATIVE PENALTY. An administrative penalty collected under this subchapter may be appropriated for the purpose of funding the grant program established under Section 161.074, Human Resources Code.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997. Amended by Acts 2005, 79th Leg., ch. 786, § 1, eff. Sept. 1, 2005.
§ 142.0175. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR ADMINISTRATIVE PENALTY. (a) If the attorney general brings an action against a person under Section 142.013 or 142.014 or to enforce an administrative penalty assessed under Section 142.0173 and an injunction is granted against the person or the person is found liable for a civil or administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs.
(b) For purposes of this section, reasonable expenses and costs include expenses incurred by the department and the attorney general in the investigation, initiation, and prosecution of an action, including reasonable investigative costs, attorney's fees, witness fees, and deposition expenses.
Added by Acts 1997, 75th Leg., ch. 1191, § 7, eff. Sept. 1, 1997.
§ 142.018. REPORTS OF ABUSE, EXPLOITATION, OR NEGLECT. (a) In this section, "abuse," "exploitation," and "neglect" have the meanings assigned by Section 48.002, Human Resources Code.
(b) A home and community support services agency that has cause to believe that a person receiving services from the agency has been abused, exploited, or neglected by an employee of the agency shall report the information to:
(1) the department; and (2) the Department of Protective and Regulatory Services or other appropriate state agency as required by Section 48.051, Human Resources Code.
(c) This section does not affect the duty or authority of any state agency to conduct an investigation of alleged abuse, exploitation, or neglect as provided by other law. An investigation of alleged abuse, exploitation, or neglect may be conducted without an on-site survey, as appropriate.
Added by Acts 1999, 76th Leg., ch. 276, § 11, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 198, § 2.197, eff. Sept. 1, 2003.
§ 142.019. CERTAIN PHYSICIAN REFERRALS PROHIBITED. A physician may not refer a patient to a home and community support services agency if the referral violates 42 U.S.C. Section 1395nn and its subsequent amendments.
Added by Acts 1999, 76th Leg., ch. 276, § 11, eff. Sept. 1, 1999.
§ 142.020. DISPOSAL OF SPECIAL OR MEDICAL WASTE. (a) A home and community support services agency that generates special or medical waste while providing home health services must dispose of the waste in the same manner that the home and community support services agency disposes of special or medical waste generated in the agency's office location.
(b) A home and community support services agency shall provide both verbal and written instructions to the agency's client regarding the proper procedure for disposing of sharps. Sharps include hypodermic needles; hypodermic syringes with attached needles; scalpel blades; razor blades, disposable razors, and disposable scissors used in medical procedures; and intravenous stylets and rigid introducers.
Added by Acts 1999, 76th Leg., ch. 276, § 12, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1317, § 1, eff. Sept. 1, 1999.
SUBCHAPTER B. PERMITS TO ADMINISTER MEDICATION
§ 142.021. ADMINISTRATION OF MEDICATION. A person may not administer medication to a client of a home and community support services agency unless the person:
(1) holds a license under state law that authorizes the person to administer medication;
(2) holds a permit issued under Section 142.025 and acts under the delegated authority of a person who holds a license under state law that authorizes the person to administer medication;
(3) administers a medication to a client of a home and community support service agency in accordance with rules of the Board of Nurse Examiners that permit delegation of the administration of medication to a person not holding a permit under Section 142.025; or
(4) administers noninjectable medication under circumstances authorized by the memorandum of understanding adopted under Section 142.016.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 19, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, § 8, eff. Sept. 1, 1997.
§ 142.022. EXEMPTIONS FOR NURSING STUDENTS AND MEDICATION AIDE TRAINEES. (a) Sections 142.021 and 142.029 do not apply to:
(1) a graduate nurse holding a temporary permit issued by the Board of Nurse Examiners;
(2) a student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience;
(3) a graduate vocational nurse holding a temporary permit issued by the Board of Nurse Examiners;
(4) a student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or
(5) a trainee in a medication aide training program approved by the department under Section 142.024 who is administering medications as part of the trainee's clinical experience.
(b) The administration of medications by persons exempted under Subdivisions (1) through (4) of Subsection (a) is governed by the terms of the memorandum of understanding executed by the department and the Board of Nurse Examiners.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 4, eff. June 19, 1990. Amended by Acts 2003, 78th Leg., ch. 553, § 2.009, eff. Feb. 1, 2004.
§ 142.023. RULES FOR ADMINISTRATION OF MEDICATION. The board by rule shall establish:
(1) minimum requirements for the issuance, denial, renewal, suspension, emergency suspension, and revocation of a permit to a home health medication aide;
(2) curricula to train a home health medication aide; (3) minimum standards for the approval of home health medication aide training programs and for rescinding approval;
(4) the acts and practices that are allowed or prohibited to a permit holder; and
(5) minimum standards for on-site supervision of a permit holder by a registered nurse.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 20, eff. Sept. 1, 1993.
§ 142.024. HOME HEALTH MEDICATION AIDE TRAINING PROGRAMS. (a) An application for the approval of a home health medication aide training program must be made to the department on a form and under rules prescribed by the board.
(b) The department shall approve a home health medication aide training program that meets the minimum standards adopted under Section 142.023. The department may review the approval annually.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 21, eff. Sept. 1, 1993.
§ 142.025. ISSUANCE AND RENEWAL OF HOME HEALTH MEDICATION AIDE PERMIT. (a) To be issued or to have renewed a home health medication aide permit, a person shall apply to the department on a form prescribed and under rules adopted by the board.
(b) The department shall prepare and conduct an examination for the issuance of a permit.
(c) The department shall require a permit holder to satisfactorily complete a continuing education course approved by the department for renewal of the permit.
(d) The department shall issue a permit or renew a permit to an applicant who:
(1) meets the minimum requirements adopted under Section 142.023; (2) successfully completes the examination or the continuing education requirements; and
(3) pays a nonrefundable application fee determined by the board. (e) A permit is valid for one year and is not transferable.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 22, 23, eff. Sept. 1, 1993.
§ 142.026. FEES FOR ISSUANCE AND RENEWAL OF HOME HEALTH MEDICATION AIDE PERMIT. (a) The board shall set the fees in amounts reasonable and necessary to recover the amount projected by the department as required to administer its functions under this subchapter. The fees may not exceed:
(1) $25 for a combined permit application and examination fee; and (2) $15 for a renewal permit application fee. (b) Fees received under this section may only be appropriated to the department to administer this subchapter.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 24, eff. Sept. 1, 1993.
§ 142.027. VIOLATION OF HOME HEALTH MEDICATION AIDE PERMITS. (a) For the violation of this subchapter or a rule adopted under this subchapter, the department may:
(1) deny, suspend, revoke, or refuse to renew a permit; (2) suspend a permit in an emergency; or (3) rescind training program approval. (b) Except as provided by Section 142.028, the procedure by which the department takes a disciplinary action and the procedure by which a disciplinary action is appealed are governed by the department's rules for a formal hearing and by Chapter 2001, Government Code.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 25, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 142.028. EMERGENCY SUSPENSION OF HOME HEALTH MEDICATION AIDE PERMITS. (a) The department shall issue an order to suspend a permit issued under Section 142.025 if the department has reasonable cause to believe that the conduct of the permit holder creates an imminent danger to the public health or safety.
(b) An emergency suspension is effective immediately without a hearing on notice to the permit holder.
(c) If requested in writing by a permit holder whose permit is suspended, the department shall conduct a hearing to continue, modify, or rescind the emergency suspension.
(d) The hearing must be held not earlier than the 10th day or later than the 30th day after the date on which the hearing request is received.
(e) The hearing and an appeal from a disciplinary action related to the hearing are governed by the department's rules for a formal hearing and Chapter 2001, Government Code.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 26, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 142.029. ADMINISTRATION OF MEDICATION; CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly administers medication to a client of a home and community support services agency and the person is not authorized to administer the medication under Section 142.021 or 142.022.
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 27, eff. Sept. 1, 1993.
§ 142.030. DISPENSING DANGEROUS DRUGS OR CONTROLLED SUBSTANCES; CRIMINAL PENALTY. (a) A person authorized by this subchapter to administer medication to a client of a home and community support services agency may not dispense dangerous drugs or controlled substances without complying with Subtitle J, Title 3, Occupations Code.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, § 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, § 28, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 1420, § 14.779, eff. Sept. 1, 2001. § 143.001. DEFINITIONS. In this chapter: (1) "Employer" means a person who, directly, indirectly, or through an employee, agent, independent contractor, or any other person, delivers to another person materials for articles that are:
(A) to be manufactured in a home and returned to the employer; and (B) not for the personal use of the employer or a member of the employer's family.
(2) "Home" means a room, house, apartment, or other premises, whichever is most extensive, that is used in whole or in part as a dwelling.
(3) "Industrial homework" means the manufacture, in a home, of articles for an employer.
(4) "Manufacture" includes preparation, alteration, repair, or finishing, in whole or in part, for profit or compensation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.002. EMPLOYER'S PERMIT REQUIRED. (a) An employer may not deliver materials for industrial homework to any person in this state without an employer's permit issued by the board.
(b) If the employer is not a resident of this state, the employer's agent must hold the employer's permit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.003. EMPLOYER'S PERMIT APPLICATION AND ISSUANCE; TERM. (a) An applicant must apply for an employer's permit in the form prescribed by board rule.
(b) The application must be accompanied by a $50 permit fee. (c) An employer's permit is valid for one year from the date of issuance.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.004. SUSPENSION OR REVOCATION OF EMPLOYER'S PERMIT. The board may suspend or revoke an employer's permit if the board finds that the employer has violated this chapter or has failed to comply with a provision of the permit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.005. HOMEWORKER'S CERTIFICATE REQUIRED. (a) A person may not engage in industrial homework without a homeworker's certificate issued by the board.
(b) A homeworker's certificate is valid only for work performed by the certificate holder in the certificate holder's home.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.006. HOMEWORKER'S CERTIFICATE APPLICATION AND ISSUANCE; TERM. (a) An applicant must apply for a homeworker's certificate in the form prescribed by board rule. Each applicant must present a health certificate or other evidence of good health as required by the board.
(b) The application must be accompanied by a fee in an amount set by the board, but not to exceed 50 cents.
(c) A homeworker's certificate is valid for one year from the date of issuance.
(d) The board may not issue a homeworker's certificate to a person who: (1) is younger than 15 years of age; (2) suffers from a communicable disease; or (3) lives in a home that is not clean, sanitary, and free from communicable diseases.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.007. SUSPENSION OR REVOCATION OF HOMEWORKER'S CERTIFICATE. The board may suspend or revoke a homeworker's certificate if the board finds that the industrial homeworker:
(1) is performing industrial homework in violation of the conditions under which the certificate was issued or in violation of this chapter; or
(2) has allowed a person who does not hold a homeworker's certificate to assist the homeworker in performing the industrial homework.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.008. PROHIBITION ON ISSUANCE OF PERMIT OR CERTIFICATE. The board may not issue an employer's permit or a homeworker's certificate to authorize industrial homework or the delivery of materials for industrial homework if the board determines that the industrial homework:
(1) is injurious to the health or welfare of industrial homeworkers in that industry or to the public; or
(2) makes it unduly difficult to maintain or enforce health standards established by law or rule for factory workers in that industry.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.009. ORDER PROHIBITING CERTAIN INDUSTRIAL HOMEWORK; HEARING. (a) The board by order shall prohibit industrial homework in a certain industry and shall require employers in that industry to stop delivering in this state any materials for that industrial homework if the board determines, after investigation, that the industrial homework may not be continued in that industry without injuring the health and welfare of industrial homeworkers in that industry or of the public.
(b) Before adopting an order under Subsection (a), the board must hold a public hearing at which an opportunity to be heard must be afforded to any person having an interest in the subject matter of the hearing, including:
(1) an employer or a representative of employers; or (2) an industrial homeworker or a representative of industrial homeworkers.
(c) The board must give public notice of the hearing: (1) not later than the 30th day before the date on which the hearing is held; and
(2) in a manner determined by the board. (d) The board shall hold the hearing in the place the board determines to be most convenient to the employers and industrial homeworkers affected by the order.
(e) The board shall determine the effective date of the order, which may not be less than 90 days after the date of its adoption.
(f) After an order becomes effective, a person holding an employer's permit may not deliver materials for the industrial homework prohibited by the order.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.010. GENERAL POWERS AND DUTIES OF BOARD. (a) The board may adopt rules necessary to implement this chapter and shall enforce this chapter.
(b) The board or the board's representative shall conduct all inspections and investigations necessary to enforce this chapter.
(c) The board or the board's representative may: (1) administer oaths; (2) take affidavits; (3) issue subpoenas; (4) compel the attendance of witnesses and the production of books, contracts, documents, or any other evidence; (5) hear testimony under oath; and (6) take depositions of witnesses who reside in this state or outside this state in the manner provided by law for similar depositions in civil actions in a justice court.
(d) A subpoena or commission to take testimony shall be issued under the seal of the board.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.011. PROHIBITION ON CERTAIN DELIVERIES BY EMPLOYER. An employer may not deliver or cause to be delivered any materials for industrial homework to a person who does not possess an employer's permit or a homeworker's certificate issued in accordance with this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.012. RECORD REQUIREMENTS; INVESTIGATION. (a) A person who holds an employer's permit may not deliver or cause to be delivered or received materials for industrial homework or receive an article as a result of industrial homework unless the employer keeps a record of:
(1) the persons engaged in industrial homework on materials delivered by that employer; (2) the places where those persons work; (3) the articles that those persons have manufactured; (4) the agents or contractors to whom the employer has delivered materials for industrial homework; and
(5) the persons from whom the employer has received materials for industrial homework.
(b) The employer shall maintain and report the information in the manner prescribed by board rule and on forms that the board may provide.
(c) The information and records required by this section may be used by the board only to enforce this chapter and may not be published or disclosed except to representatives of the board enforcing this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.013. LABEL REQUIREMENT. (a) An employer may not deliver or cause to be delivered materials for industrial homework unless there has been conspicuously affixed to those materials a label or other identifying trademark that bears the employer's name and address printed or written legibly in English.
(b) The label must be affixed to the package or container in which the materials are delivered or are to be kept if it is impossible to affix the label to the materials.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.014. DISPOSITION OF UNLAWFULLY MANUFACTURED ARTICLES. (a) The board may remove from a home articles that are being manufactured in the home in violation of this chapter and materials used to manufacture those articles.
(b) The board shall give notice of the removal by registered mail to the person whose name and address are affixed to the materials as provided by Section 143.013.
(c) The board may retain the materials or articles until they are claimed by the employer, and if they are not claimed before the 31st day after the date on which the notice is sent, the board may destroy or otherwise dispose of the materials or articles.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 143.015. CRIMINAL PENALTY. (a) An employer commits an offense if the employer:
(1) violates Section 143.002; (2) refuses to allow the board or its representative to enter the employer's place of business to conduct an investigation authorized by this chapter; (3) refuses to permit the board or its representative to inspect or copy the employer's records or other documents related to the enforcement of this chapter; (4) makes an oral statement that the employer is required by the commissioner to make and the statement made is false; or
(5) otherwise violates this chapter or any provision of the employer's permit.
(b) A person commits an offense if the person violates a rule adopted by the board.
(c) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200, imprisonment for not less than 30 days or more than 60 days, or both.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. § 144.001. SHORT TITLE. This chapter may be cited as the Texas Renderers' Licensing Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.002. DEFINITIONS. In this chapter: (1) "Dead animal" means the whole or substantially whole carcass of a dead or fallen domestic animal, or domesticated wild animal, that was not slaughtered for human consumption.
(2) "Dead animal hauler" means a person who collects and disposes of dead animals for commercial purposes.
(3) "Disposal" means the burying, burning, cooking, processing, or rendering of dead animals or of renderable raw materials.
(4) "Employee" means a person who: (A) is a legal employee of a rendering establishment; and (B) handles or operates rendering equipment, utensils, containers, vehicles, or packaging materials owned or leased by the rendering establishment.
(5) "Nuisance" means any situation or condition that constitutes a nuisance under Section 341.011.
(6) "Person" means an individual, firm, partnership, association, corporation, trust, company, or organization, and includes an agent, officer, or employee of that individual or entity.
(7) "Processing" means an operation or combination of operations through which materials derived from a dead animal or renderable raw material sources are:
(A) prepared for disposal at a rendering establishment; (B) stored; or (C) treated for commercial use or disposition, other than as food for human consumption.
(8) "Related station" means an operation or facility that is necessary or incidental to the operation of a rendering establishment and that is operated or maintained separately from the rendering establishment.
(9) "Rendering business" means the collection, transportation, disposal, or storage of dead animals or renderable raw materials for commercial purposes at locations where dead animals or renderable raw materials are rendered, boiled, processed, stored, transferred, or otherwise prepared, either as a separate business or in connection with any other established business.
(10) "Rendering establishment" means an establishment or part of an establishment, a plant, or any other premises at which dead animals or renderable raw materials are rendered, boiled, processed, or otherwise prepared to obtain a product for commercial use or disposition, other than as food for human consumption. The term includes all other operations and facilities that are necessary or incidental to the establishment.
(11) "Renderable raw material" means any unprocessed or partially processed material of animal or plant origin, other than a dead animal, that is processed by rendering establishments. The term includes:
(A) animals, poultry, or fish slaughtered or processed for human consumption but that are unsuitable for that use;
(B) the inedible products and by-products of animals, poultry, or fish slaughtered or processed for human consumption;
(C) parts from dead animals; (D) whole or partial carcasses of dead poultry or fish; (E) waste cooking greases; and (F) recyclable cooking oil. (12) "Recyclable cooking oil" means any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and intended for recycling by being used or reused as:
(A) an ingredient in a process to make a product; or (B) an effective substitute for a commercial product. (13) "Renderable raw material hauler" means a person who collects or transports renderable raw materials for commercial purposes.
(14) "Transfer station" means a facility at which renderable raw materials are transferred from one conveyance to another.
(15) "Waste cooking grease" means any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and no longer suitable for such use.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 1, eff. Sept. 1, 1999.
§ 144.003. CONSTRUCTION OF OTHER LAWS. (a) This chapter does not affect: (1) Chapter 141, Agriculture Code; or (2) any state law or a rule of any public regulatory body that relates to the control of water or air pollution.
(b) This chapter does not affect a municipality's power to regulate by ordinance rendering businesses within the boundaries of the municipality. However, each rendering establishment, related station, transfer station, dead animal hauler, or renderable raw material hauler subject to a municipal ordinance shall comply with this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 2, eff. Sept. 1, 1999.
SUBCHAPTER B. OPERATING LICENSES
§ 144.011. LICENSE REQUIRED. (a) A person may not operate a rendering business, or any adjunct to a rendering business, without having a rendering establishment operating license issued by the department or another appropriate operating license under this section.
(b) A person may not operate or maintain a related station without a related station operating license issued by the department.
(c) A person may not operate or maintain a transfer station without a transfer station operating license issued by the department.
(d) A person may not operate as a dead animal hauler without a dead animal hauler operating license issued by the department unless the person is an employee of a rendering establishment.
(e) A person may not operate as a renderable raw material hauler without a renderable raw material hauler operating license issued by the department unless the person is an employee of a rendering establishment.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 3, eff. Sept. 1, 1999.
§ 144.012. EXEMPTIONS FROM LICENSING REQUIREMENT. (a) Unless the person also performs rendering operations or processes, this chapter does not apply to a person who:
(1) slaughters, butchers, manufactures, or sells animal flesh or products only for use as food for human consumption;
(2) transports or disposes of the bodies of animals killed for use as food for human consumption, or the products of those bodies, only for that purpose and use; or
(3) is an individual and who disposes of the individual's own animal. (b) This chapter does not apply to a governmental agency that collects, transports, or disposes of dead animals or renderable raw materials.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 4, eff. Sept. 1, 1999.
§ 144.013. LICENSE APPLICATION AND ISSUANCE. (a) To be considered by the department for an operating license, a person must submit a sworn application to the department. The application must:
(1) state whether the applicant intends to operate as a rendering establishment, related station, transfer station, dead animal hauler, or renderable raw material hauler;
(2) state the location from which the business is to be conducted; and (3) include other relevant information required by the department to determine the applicant's compliance with the operating procedures established under Subchapter C.
(b) The application must be accompanied by the application fee. (c) The department shall issue the appropriate operating license if, after investigation, it finds that the applicant's operations or proposed operations meet the requirements of Subchapter C.
(d) If the department finds that the applicant's operations or proposed operations do not meet the requirements of Subchapter C, the department shall deny the application and shall notify the applicant in writing of each reason why the applicant fails to meet those requirements. The applicant is entitled to 90 days to meet the requirements, after which the department shall reinvestigate.
(e) If the department determines after reinvestigation that the applicant is not in compliance, the department shall again deny the application and promptly notify the applicant in writing of each reason why the applicant fails to meet the requirements.
(f) If the department denies an application twice, the application is canceled. The applicant is entitled to a hearing before the commissioner on the denial if the applicant requests the hearing not later than the 30th day after the date of the second denial.
(g) Unless the period is extended by a written agreement between the department and the applicant, the department shall grant or deny a license application not later than the 30th day after the date on which:
(1) the application and the required fee is filed with the department; (2) the period to meet the requirements expires; or (3) a hearing on the application denial is conducted.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 5, eff. Sept. 1, 1999.
SUBCHAPTER C. OPERATING PROCEDURES FOR ALL LICENSE HOLDERS
§ 144.021. GENERAL REQUIREMENTS FOR OPERATING LICENSES. (a) Each applicant for or holder of an operating license shall adopt operating procedures that:
(1) provide for the sanitary performance of rendering operations and processes; (2) prevent the spread of infectious or noxious materials; and (3) ensure that finished products are free from disease-producing organisms.
(b) As a condition of licensure, the department may prescribe other reasonable and appropriate construction, operational, maintenance, and inspection requirements to ensure compliance with this chapter and applicable rules of the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 6, eff. Sept. 1, 1999.
§ 144.022. RECORDS. (a) Each licensed rendering establishment, related station, or dead animal hauler shall have a dead animal log that meets the requirements prescribed by the department. The name of the licensed rendering establishment, related station, or dead animal hauler must be on the front of the log.
(b) When a license holder receives a dead animal, the license holder shall enter the following information in the log:
(1) the date and time of the pickup of the dead animal; (2) the name of the driver of the collection vehicle; (3) a description of the dead animal; (4) the location of the dead animal, including the county; and (5) the owner of the dead animal, if known. (c) The license holder shall also keep a record in the log, or in an appendix to the log, of the general route followed in making the collection.
(d) The log is subject to inspection at all reasonable times by the department or a person with written authorization from the department. Repeated or wilful failure or refusal to produce the log for inspection or to permit inspection by persons properly authorized to inspect the log constitutes grounds for license revocation.
(e) This section does not apply to a licensed renderable raw material hauler.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.023. VEHICLES; PERMIT REQUIRED. (a) A vehicle used to transport dead animals or renderable raw materials to or from a rendering establishment must:
(1) be leak-proof and maintained in a manner that precludes the creation of a nuisance; and
(2) comply with each applicable requirement for operation on the public roads or highways, including applicable insurance requirements and gross vehicle weight limitations.
(b) A collection vehicle shall be held to a minimum number of stops, and the stops shall be brief, while traveling to the establishment with dead animals or renderable raw materials. Each collection vehicle shall be washed and sanitized at the end of each day's operations.
(c) A truck bed used to transport dead animals or renderable raw materials shall be thoroughly washed and sanitized before use for the transport of finished rendered products. A truck bed used to transport dead animals or renderable raw materials to a rendering establishment, or to transfer finished rendered products from an establishment, shall, before being used to transport any product intended for human consumption, be thoroughly sanitized with a bactericidal agent that is determined by the department to be safe in a rendering establishment. A truck bed may not be used to transport dead animals or renderable raw materials at the same time the truck bed or any part of the truck bed is used to transport any product intended for human consumption, notwithstanding the manner in which part of the truck bed is sealed or separated from the remainder of the bed.
(d) The owner of a vehicle may not operate the vehicle on public roads and highways to haul dead animals or renderable raw materials unless the owner holds a permit for the vehicle issued by the department. To obtain a permit for the vehicle from the department, the owner must provide to the department:
(1) the owner's name and address; (2) a description of the operations to be performed under the registration;
(3) the year, make, model, license plate number, and manufacturer's vehicle identification number for the vehicle;
(4) a list of names of drivers employed by the hauler to drive the vehicle and their driver's license numbers; and
(5) any other information required by the department. (e) The department may require that a dead animal or renderable raw material hauling vehicle conspicuously display a permit decal issued by the department and the number and license holder's name for any operating license required under Section 144.011. As a condition of issuance and maintenance of the permit, the department may require that the vehicle comply with any other construction, operational, maintenance, inspection, and marking requirements as prescribed by the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 7, eff. Sept. 1, 1999.
§ 144.024. TREATMENT OF DEAD ANIMALS OR RENDERABLE RAW MATERIALS. (a) Dead animals or renderable raw materials received by a rendering establishment shall either be immediately placed in the rendering process or stored for not more than 48 hours in a manner that precludes the creation of a nuisance or a malodorous condition.
(b) Cooking or other dehydration operations shall be conducted in a manner that prevents the survival of disease-producing organisms in the processed material. Adequate and suitable means for the treatment of cooking vapors shall be provided and operated in a manner that controls odors.
(c) All cooked or finished materials shall be kept apart from areas where dead animals or renderable raw materials are kept in a manner that prevents contamination.
(d) If a person intends to use oil or grease as an ingredient in livestock feed or in topical cosmetic products, the person may not contaminate or commingle waste cooking greases or recyclable cooking oils with grease trap waste, grit trap waste, or any other substance that would render the greases or oils harmful or otherwise unsuitable for use as an ingredient in livestock feed or in topical cosmetic products.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 8, eff. Sept. 1, 1999.
§ 144.025. FLOORS. (a) During operations, the floors in processing areas shall be kept reasonably free from processing wastes, including:
(1) blood; (2) manure; (3) scraps; (4) grease; (5) water; (6) dirt; and (7) litter. (b) The floors shall be thoroughly cleaned at the end of each day's operations.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.026. WASTE TREATMENT. (a) Waste shall be handled and disposed of in a manner that prevents contamination of:
(1) the water supply; (2) processing equipment; (3) packaging materials; and (4) finished products. (b) Liquid waste shall be treated in the manner required by the department and disposed of in a manner approved by the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.027. EMPLOYEE FACILITIES. (a) Adequate and convenient toilet facilities for employees shall be located in an establishment.
(b) An adequate number of lavatory facilities for employees to wash their hands shall be provided at convenient locations in the establishment and must be supplied with warm water under pressure and with soap or another detergent.
(c) A drinking water supply approved by the department shall be provided at convenient locations in the establishment for the use of employees.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.028. HYGIENE REQUIREMENTS. A person engaging in rendering processes or operations shall wear washable garments and accessories and conform to hygienic practices.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.029. SANITARY CONDITIONS REQUIRED. (a) The premises of a rendering establishment shall be kept clean and neat, in good repair, and reasonably free from:
(1) undue collection of refuse; (2) waste materials; (3) rodent infestation; (4) insect breeding places; (5) standing water; and (6) other objectionable conditions. (b) Equipment and utensils shall be provided as necessary for the rendering establishment to conduct operations in a sanitary manner.
(c) Rodents, roaches, and other vermin shall be controlled. (d) Hide storage facilities shall be in closed areas separate from all other areas.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.030. COLLECTION CONTAINER REQUIREMENTS. (a) A container in which dead animals or renderable raw materials are accumulated by a producer at collecting points for pickup by a dead animal hauler or renderable raw material hauler must remain on the premises at each collecting point.
(b) The owner of the containers shall maintain the containers in a leak-proof and sanitary condition and shall replace them as necessary.
(c) The transportation, delivery, transfer, loading, and off-loading of dead animals and renderable raw materials shall be performed in a manner that prevents the release of animal parts and spills or leaks of renderable raw materials from containers. A release of dead animal parts or spill or leak of renderable raw materials shall immediately be cleaned up and reported in the log required by Section 144.022.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 9, eff. Sept. 1, 1999.
§ 144.031. PROHIBITED PURCHASES OR SALES. (a) A person may not sell or offer for sale a raw or uncooked dead animal or renderable raw material that contains disease-producing organisms to any person who is not licensed under this chapter.
(b) A person licensed under this chapter may not purchase a dead animal from a dead animal hauler who is not licensed under this chapter.
(c) A person licensed under this chapter may not purchase renderable raw materials from a renderable raw material hauler who is not licensed under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 10, eff. Sept. 1, 1999.
SUBCHAPTER D. CONSTRUCTION PERMITS
§ 144.041. PERMIT REQUIRED. (a) Except as provided by Section 144.042, a person may not construct a new rendering establishment or engage in construction involving an addition or replacement at a rendering establishment without a construction permit issued by the department.
(b) Except as provided by Section 144.042, a person may not construct a new related station or engage in construction involving an addition or replacement at a related station without a construction permit issued by the department.
(c) Except as provided by Section 144.042, a person may not construct a new transfer station or engage in construction involving an addition or replacement at a transfer station without a construction permit issued by the department.
(d) Construction at a rendering business is subject to the construction and layout requirements established under Subchapter E.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 11, eff. Sept. 1, 1999.
§ 144.042. EXEMPTION FROM PERMIT REQUIREMENT. A construction permit from the department for the construction of a new rendering business or for construction at a rendering business is not required if the cost to the rendering business is less than $10,000. However, the construction and layout requirements established under Subchapter E apply to the construction.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 12, eff. Sept. 1, 1999.
§ 144.043. PERMIT APPLICATION AND ISSUANCE. (a) To receive a construction permit, a person must submit a sworn application to the department. The application must:
(1) describe the type of construction proposed, whether the construction is of a new rendering establishment, related station, or transfer station or additions or replacements;
(2) specify when the proposed construction is to occur; and (3) include other relevant information required by the department to determine the applicant's compliance with the requirements of Subchapter E.
(b) The department shall issue the construction permit if, after investigation, it finds that the proposed construction meets the requirements of Subchapter E.
(c) If the department finds that the applicant's proposed construction does not meet the requirements of Subchapter E, the department shall deny the application and shall notify the applicant in writing of each reason why the applicant fails to meet the requirements. The applicant is entitled to 90 days in which to meet the requirements, after which the department shall reinvestigate.
(d) If the department determines after reinvestigation that the applicant is not in compliance, the department shall again deny the application and notify the applicant in writing of each reason why the applicant fails to meet the requirements.
(e) If the department denies an application twice, the application is canceled. The applicant is entitled to a hearing before the commissioner on the denial if the applicant requests the hearing not later than the 30th day after the date of the second denial.
(f) Unless the period is extended by a written agreement between the department and the applicant, the department shall grant or deny a permit application not later than the 30th day after the date on which:
(1) the application and the required fees are filed with the department; (2) the period to meet the requirements expires; or (3) a hearing on the application denial is conducted.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 13, eff. Sept. 1, 1999.
SUBCHAPTER E. CONSTRUCTION AND LAYOUT REQUIREMENTS FOR RENDERING ESTABLISHMENTS AND RELATED STATIONS
§ 144.051. RENDERING ESTABLISHMENT AND RELATED STATION CONSTRUCTION. (a) All construction of a rendering establishment, related station, or transfer station subject to this chapter must:
(1) provide for sanitary operations and environmental conditions; (2) prevent the spread of disease-producing organisms and infectious or noxious materials; and
(3) prevent the development of a malodorous condition or a nuisance. (b) Except to the extent the department grants a written variance from a requirement, each construction permit holder shall comply with the specific requirements established under this subchapter. The department may grant a variance from the requirements of this subchapter if the department determines that construction or operational features established at a rendering establishment will provide protection for public health and safety equivalent to that afforded by the requirements of this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 14, eff. Sept. 1, 1999.
§ 144.052. GENERAL CONSTRUCTION AND LAYOUT REQUIREMENTS. (a) A rendering establishment shall provide sufficient space for:
(1) the sanitary administration of rendering operations and processes; (2) the installation of necessary utility equipment; and (3) the installation of processing equipment in a manner that makes the equipment easily accessible for cleaning.
(b) A rendering establishment must be constructed so as to be easily maintained in a sanitary condition and to prevent shelter for rodents, roaches, and other vermin.
(c) A floor in a rendering establishment must be constructed of good quality concrete, metal, or other equally impervious and easily cleanable material. It must be smooth, graded to drain, and provided with an adequate number of trapped drains or other waste disposal facilities approved by the department. A gutter used to conduct drainage must be constructed and located so it can be easily cleaned and maintained in a sanitary condition.
(d) A wall, partition, or post in a rendering establishment must be finished with a smooth, washable surface of concrete, metal, or other equally impervious and easily cleanable material.
(e) A ceiling, the underside of a roof if used as a ceiling, and any exposed overhead structure in a rendering establishment must have easily cleanable surfaces.
(f) Each exterior wall and roof, and any opening in an outer wall or roof, must protect against the entrance of insects, rodents, and other vermin. An interior wall, partition, post, ceiling, or other overhead structure may not contain crevices or openings that may provide shelter for rodents or insects.
(g) A rendering establishment shall provide a paved area of adequate size for washing and sanitizing trucks. The paved area must be provided with adequate drains that lead to a sanitary sewer system.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.053. RESTROOM FACILITIES. (a) A rendering establishment shall provide toilet and dressing room facilities for employees of each sex. The department must approve the design, construction, and equipment of those facilities.
(b) This section does not apply to toilet or dressing room facilities located in the managerial office area of a rendering establishment.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.054. VENTILATION REQUIREMENTS. (a) A rendering establishment shall provide sufficient ventilation to dispel disagreeable odors, condensate, and vapor.
(b) The establishment shall provide ventilating equipment as necessary, including individual fans, vents, and hoods. The establishment shall locate and control mechanical ventilating equipment to prevent contamination of finished products or processing equipment from nearby or preceding operations or other sources.
(c) An employee toilet room or dressing room must be adequately vented to the outside air.
(d) A space heater, gas stove, water heater, or other equipment that emits noxious odors, fumes, or vapors must be vented to the outside air.
(e) An exhaust outlet from a mechanical ventilation device must be conducted to the outside air and must be arranged, placed, and extended to avoid creating a nuisance to adjacent areas.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.055. WATER SUPPLY. (a) The water supply used by a rendering establishment must be either a public water supply acceptable to the department or a private supply that is located, constructed, and treated, if necessary, to provide water of a safe, sanitary quality and that complies with department requirements.
(b) The establishment's water supply may not be physically connected to any unsafe or questionable supply. Water from an unsafe or questionable supply may be used only for limited purposes, such as fire control or for ammonia condensers. A supply line for unsafe or questionable water must be clearly identified.
(c) Hot and cold water must be conveniently accessible to all parts of the establishment. The water must be under ample pressure, and must be available through outlets and in quantities as necessary to meet effectively the needs of the establishment at all times. The hot water system must have sufficient capacity to furnish ample water with a temperature of at least 180 degrees Fahrenheit during processing and cleanup.
(d) The plumbing system in a rendering establishment must be installed in compliance with state law and applicable local plumbing ordinances, and must be designed, installed, and maintained to protect the establishment's water supply from contamination through cross-connections, back siphonage, back-flow leakage, or condensation. The plumbing system must readily carry away all liquid wastes.
(e) If necessary to prevent discharge into the drainage system of solid wastes likely to clog the drainage system, liquid wastes containing solid materials must be passed through a separator or indirect-waste receptor that effectively retains the solids before discharge into the drainage system.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER F. PROVISIONS APPLICABLE TO LICENSES AND PERMITS
§ 144.061. CONTENTS AND DISPLAY OF LICENSE OR PERMIT. (a) Each operating license and construction permit must state the name and address of the license holder or permit holder.
(b) The license or permit must be displayed at the place of business named in the license or the place of construction named in the permit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.062. NOT TRANSFERABLE OR ASSIGNABLE. A license or permit may not be transferred or assigned without the department's approval.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.063. RENEWAL OF LICENSE OR PERMIT. (a) A license or permit is effective until it is relinquished, suspended, or revoked, or it expires.
(b) An operating license is valid for one year and may be renewed annually by the license holder. The department shall set an annual renewal fee.
(c) A license holder may renew a license by paying the renewal fee to the department on or before January 1 of each year. On receipt of the fee, the license is automatically renewed for the next calendar year.
(d) If the renewal fee is not paid before the expiration of the 15th day after the date on which written notice of delinquency is given to the license holder by the department, the license expires unless the department grants an extension to renew. After an operating license expires, a new application for the license must be submitted.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 15, eff. Sept. 1, 1999.
§ 144.064. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR PERMIT; REINSTATEMENT. (a) The commissioner may deny, suspend, or revoke an operating license, construction permit, or renewal of an operating license or construction permit if the commissioner finds that:
(1) the license holder or permit holder has violated this chapter or a rule or order adopted under this chapter or did not exercise due care to prevent the violation; or
(2) a fact or condition exists that would have justified the denial of the license or permit application if the fact or condition was known at the time the original application was filed.
(b) On the discovery of such a violation, the commissioner shall notify the license holder or permit holder of the violation. If the license holder or permit holder fails to make the necessary corrections, the department shall notify the license holder or permit holder of a hearing to suspend or revoke the license or permit.
(c) The commissioner may reinstate a suspended license or permit, or may issue a new license or permit to a person whose license or permit has been revoked, if a ground to deny the original license or permit application does not exist.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 16, eff. Sept. 1, 1999.
SUBCHAPTER G. ADMINISTRATIVE AND ENFORCEMENT PROVISIONS; PENALTIES
§ 144.071. INSPECTIONS. (a) At least once each year and at other times as the department considers necessary, the department shall inspect the place of business of each operating license holder, the vehicles of each renderable raw material hauler, and the construction site of each construction permit holder if construction is continuing.
(b) The department shall inquire into and inspect the premises, equipment, and operations of the license holder or permit holder that relate to matters regulated by this chapter.
(c) The department has free access to the place of business, construction site, or vehicle to conduct the inspection.
(d) A license holder or permit holder who unreasonably fails or refuses to cooperate and assist the department in an inspection violates this chapter, and the failure or refusal constitutes a ground for the suspension or revocation of the license or permit.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 17, eff. Sept. 1, 1999.
§ 144.072. FEES. (a) An application for an operating license must be accompanied by an application fee.
(b) An application for a construction permit must be accompanied by a fee. Construction permit fees must be based on the dollar value at the cost to the rendering establishment or related station of the construction.
(c) An application for a vehicle permit under Section 144.023 must be accompanied by a permit fee for each vehicle for which a permit is to be issued.
(d) If an application is withdrawn not later than the fifth day after the date on which it is received by the department, the department shall refund the full amount of the application fee.
(e) The department by rule shall set the fees authorized by this chapter in amounts that allow the department to recover the annual expenditures of state funds by the department in:
(1) reviewing and acting on a license renewal or registration; (2) amending a license, renewal license, or registration; (3) inspecting a licensed facility or vehicles and equipment regulated under this chapter; and
(4) implementing and enforcing this chapter, including a rule or order adopted or a license issued under this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 18, eff. Sept. 1, 1999.
§ 144.073. ACCOUNT. All fees collected under this chapter are payable to the department and shall be deposited to the credit of the rendering fee account in the general revenue fund. Money in the account may be appropriated only to the department to be used to process and investigate applications filed under this chapter and to administer this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 19, eff. Sept. 1, 1999.
§ 144.074. ADOPTION OF RULES. The board may adopt rules consistent with this chapter as necessary for the enforcement of this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.075. CERTIFICATES; CERTIFIED COPIES. (a) On application by any person and on payment of the associated costs, the department shall furnish a certificate of good standing and a certified copy of any license, permit, rule, or order.
(b) The department shall furnish the certificate or copy under its seal and signed by a representative of the department.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.076. PUBLIC RECORDS. The transcript of any hearing held by the commissioner and findings made by the commissioner or the department under this chapter are public records open to inspection at all reasonable times.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.077. HEARINGS AND JUDICIAL REVIEW. (a) A hearing held under this chapter is subject to Chapter 2001, Government Code.
(b) A person aggrieved by a final decision under this chapter is entitled to judicial review.
(c) The manner of judicial review is by substantial evidence review.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 20, eff. Sept. 1, 1999.
§ 144.078. INJUNCTION. (a) On request of the department, the attorney general may bring an action in any district court of this state that has jurisdiction and venue for an injunction to compel compliance with this chapter or to restrain any actual or threatened violation of this chapter.
(b) The court may enter an order or judgment to award a preliminary or final injunction as it considers appropriate.
(c) The attorney general on behalf of the department may bring an action under Subsection (a) in addition to any other action provided by this chapter and without prejudice to that action.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 21, eff. Sept. 1, 1999.
§ 144.079. PROHIBITED ACTS. (a) A person may not receive, hold, slaughter, butcher, or otherwise process any animal as food for human consumption in a building or compartmented area of a building used as a rendering establishment or related station.
(b) A person may not steal, misappropriate, contaminate, or damage recyclable cooking oil or containers of recyclable cooking oil.
(c) A renderer, hauler, or any other person may not: (1) take possession of recyclable cooking oil from an unlicensed hauler or an employee or contractor of an unlicensed hauler; or
(2) knowingly take possession of stolen recyclable cooking oil.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, § 22, eff. Sept. 1, 1999.
§ 144.080. CRIMINAL PENALTY. (a) A person commits an offense if the person continues any operation or construction subject to regulation under this chapter without obtaining and maintaining an operating license or construction permit.
(b) An offense under this section is a misdemeanor punishable by: (1) a fine of not less than $50 or more than $500; (2) confinement in the county jail for not more than 30 days; or (3) both the fine and confinement. (c) Each day of violation constitutes a separate offense.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 144.081. ADMINISTRATIVE PENALTY. (a) The commissioner may assess an administrative penalty against a person who violates this chapter, a rule adopted by the board under the authority of this chapter, or an order or license issued under this chapter.
(b) In determining the amount of the penalty, the commissioner shall consider:
(1) the person's previous violations; (2) the seriousness of the violation; (3) any hazard to the health and safety of the public; (4) the person's demonstrated good faith; (5) such other matters as justice may require. (c) The penalty may not exceed $25,000 a day for each violation. (d) Each day a violation continues may be considered a separate violation.
Added by Acts 1991, 72nd Leg., ch. 385, § 1, eff. Sept. 1, 1991.
§ 144.082. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a) An administrative penalty may be assessed only after a person notified of a violation is given an opportunity for a hearing.
(b) If a hearing is held, the commissioner shall make findings of fact and shall issue a written decision regarding the occurrence of the violation and the amount of the penalty that may be warranted.
(c) If the person notified of the violation does not request a hearing, the commissioner may assess a penalty after determining that a violation has occurred and the amount of the penalty that may be warranted.
(d) After making a determination under this section that a penalty is to be assessed against a person, the commissioner shall issue an order requiring that the person pay the penalty.
(e) The commissioner may consolidate a hearing held under this section with another proceeding.
Added by Acts 1991, 72nd Leg., ch. 385, § 1, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg., ch. 485, § 23, eff. Sept. 1, 1999.
§ 144.083. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not later than the 30th day after the date an order finding that a violation has occurred is issued, the commissioner shall inform the person against whom the order is issued of the amount of the penalty for the violation.
(b) Not later than the 30th day after the date on which a decision or order charging a person with a penalty is final, the person shall:
(1) pay the penalty in full; or (2) if the person seeks judicial review of the amount of the penalty, the fact of the violation, or both:
(A) send the amount of the penalty to the commissioner for placement in an escrow account; or
(B) post with the commissioner a bond for the amount of the penalty. (c) A bond posted under this section must be in a form approved by the commissioner and be effective until all judicial review of the order or decision is final.
(d) A person who does not send money to the commissioner or post the bond within the period prescribed by Subsection (b) waives all rights to contest the violation or the amount of the penalty.
Added by Acts 1991, 72nd Leg., ch. 385, § 1, eff. Sept. 1, 1991.
§ 144.084. REFUND OF ADMINISTRATIVE PENALTY. Not later than the 30th day after the date of a judicial determination that an administrative penalty against a person should be reduced or not assessed, the commissioner shall:
(1) remit to the person the appropriate amount of any penalty payment plus accrued interest; or
(2) execute a release of the bond if the person has posted a bond.
Added by Acts 1991, 72nd Leg., ch. 385, § 1, eff. Sept. 1, 1991.
§ 144.085. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY GENERAL. The attorney general at the request of the commissioner may bring a civil action to recover an administrative penalty under this subchapter.
Added by Acts 1991, 72nd Leg., ch. 385, § 1, eff. Sept. 1, 1991. § 145.001. SHORT TITLE. This chapter may be cited as the Tanning Facility Regulation Act.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991.
§ 145.002. DEFINITIONS. In this chapter: (1) "Authorized agent" means an employee of the department designated by the commissioner to enforce this chapter.
(2) "Fitzpatrick scale" means the following scale for classifying a skin type, based on the skin's reaction to the first 10 to 45 minutes of sun exposure after the winter season:Skin Type Sunburning and Tanning History 1 Always burns easily; never tans 2 Always burns easily; tans minimally 3 Burns moderately; tans gradually 4 Burns minimally; always tans well 5 Rarely burns; tans profusely 6 Never burns; deeply pigmented.
(4) "Operator" means an owner of a tanning facility or an agent of an owner of a tanning facility.
(5) "Person" means an individual, partnership, corporation, or association.
(6) "Phototherapy device" means a piece of equipment that emits ultraviolet radiation and is used by a health care professional in the treatment of disease.
(7) "Tanning device" means a device under Section 431.002 and includes any equipment, including a sunlamp, tanning booth, and tanning bed, that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and is used for the tanning of human skin. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails.
(8) "Tanning facility" means a business that provides persons access to or use of tanning devices.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 1, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 1, eff. Sept. 1, 2001.
§ 145.003. EXEMPTION. This chapter does not apply to a phototherapy device used by or under the supervision of a licensed physician trained in the use of phototherapy devices.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991.
§ 145.004. COMPLIANCE WITH LAW. (a) A tanning device used by a tanning facility must comply with all applicable federal and state laws and regulations.
(b) The Texas Department of Health may enforce Chapter 431 against a person who adulterates or misbrands a tanning device. The department may investigate a person accused of adulterating or misbranding a tanning device. For the purposes of this subsection, a tanning device is adulterated or misbranded if the tanning device would be an adulterated or misbranded device under Section 431.111 or 431.112, Health and Safety Code.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 2, eff. June 15, 1995.
§ 145.005. CUSTOMER NOTICE; LIABILITY. (a) A tanning facility shall give each customer a written statement warning that:
(1) failure to use the eye protection provided to the customer by the tanning facility may result in damage to the eyes;
(2) overexposure to ultraviolet light causes burns; (3) repeated exposure may result in premature aging of the skin and skin cancer;
(4) abnormal skin sensitivity or burning may be caused by reactions of ultraviolet light to certain:
(A) foods; (B) cosmetics; or (C) medications, including: (i) tranquilizers; (ii) diuretics; (iii) antibiotics; (iv) high blood pressure medicines; or (v) birth control pills; (5) any person taking a prescription or over-the-counter drug should consult a physician before using a tanning device;
(6) a person with skin that always burns easily and never tans should avoid a tanning device; and
(7) a person with a family or past medical history of skin cancer should avoid a tanning device.
(b) Compliance with the notice requirement does not affect the liability of a tanning facility operator or a manufacturer of a tanning device.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 473, § 2, eff. Sept. 1, 2001.
§ 145.006. WARNING SIGNS. (a) A tanning facility shall post a warning sign in a conspicuous location where it is readily visible by persons entering the establishment. The board by rule shall specify the size, design, and graphic design of the sign. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording:
Repeated exposure to ultraviolet radiation may cause chronic sun damage characterized by wrinkling, dryness, fragility, bruising of the skin, and skin cancer.
DANGER: ULTRAVIOLET RADIATION
Failure to use protective eyewear may result in severe burns or permanent injury to the eyes.
Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medications, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women taking oral contraceptives who use this product may develop discolored skin.
A customer may call the Texas Department of Health at (insert toll-free telephone number) to report an alleged injury regarding this tanning facility.
IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
(b) A tanning facility operator shall also post a warning sign at each tanning device in a conspicuous location that is readily visible to a person about to use the device. The board by rule shall specify the size, design, and graphic design of the sign. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording:
DANGER: ULTRAVIOLET RADIATION
1. Follow the manufacturer's instructions for use of this device. 2. Avoid too frequent or lengthy exposure. As with natural sunlight, exposure can cause serious eye and skin injuries and allergic reactions. Repeated exposure may cause skin cancer.
3. Wear protective eyewear. Failure to use protective eyewear may result in severe burns or permanent damage to the eyes.
4. Do not sunbathe before or after exposure to ultraviolet radiation from sunlamps.
5. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medication, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women using oral contraceptives who use this product may develop discolored skin.
A customer may call the Texas Department of Health at (insert toll-free telephone number) to report an alleged injury regarding this tanning device.
IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF THIS DEVICE.
(c) The Texas Department of Health shall include with a license application and an application for renewal of a license a description of the design standards required for signs under this section.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 3, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 3, eff. Sept. 1, 2001.
§ 145.007. PROHIBITED CLAIMS ABOUT SAFETY. A tanning facility operator may not claim or distribute promotional materials that claim that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 4, eff. June 15, 1995.
§ 145.008. OPERATIONAL REQUIREMENTS. (a) A tanning facility shall have an operator present during operating hours. The operator must:
(1) be sufficiently knowledgeable in the correct operation of the tanning devices used at the facility;
(2) instruct, inform, and assist each customer in the proper use of the tanning devices;
(3) complete and maintain records required by this chapter; and (4) explain or otherwise inform each customer initially using the tanning facility of:
(A) the potential hazards of and protective measures necessary for ultraviolet radiation;
(B) the requirement that protective eyewear be worn while using a tanning device;
(C) the possibility of photosensitivity or of a photoallergic reaction to certain drugs, medicine, or other agents when a person is subjected to the sun or ultraviolet radiation;
(D) the correlation between skin type and exposure time; (E) the maximum exposure time to the facility's devices; (F) the biological process of tanning; and (G) the dangers of and the necessity to avoid overexposure to ultraviolet radiation.
(b) Before each use of a tanning device, the operator shall provide with each device clean and properly sanitized protective eyewear that protects the eyes from ultraviolet radiation and allows adequate vision to maintain balance. The protective eyewear shall be located in the immediate area of each tanning device and shall be provided without charge to each user of a tanning device. The operator may not allow a person to use a tanning device if that person does not use protective eyewear that meets the requirements of the United States Food and Drug Administration. The operator also shall show each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer of the tanning device.
(c) The tanning facility operator shall clean and properly sanitize the body contact surfaces of a tanning device after each use of the tanning device.
(d) The tanning facility shall use a timer with an accuracy of at least plus or minus 10 percent of the maximum timer interval of the tanning device. The operator shall limit the exposure time of a customer on a tanning device to the maximum exposure time recommended by the manufacturer. A timer shall be located so that a customer cannot set or reset the customer's exposure time. The operator shall control the temperature of the customer contact surfaces of a tanning device and the surrounding area so that it may not exceed 100 degrees Fahrenheit.
(e) Before a customer who is 18 years of age or older uses a tanning facility's tanning device for the first time and each time a person executes or renews a contract to use a tanning facility, the person must provide photo identification and sign a written statement acknowledging that the person has read and understood the required warnings before using the device and agrees to use protective eyewear.
(f) To ensure the proper operation of the tanning equipment, a tanning facility may not allow a person younger than 13 years of age to use a tanning device unless:
(1) the facility receives written permission from the person's physician allowing the person to use the device; and
(2) the person's parent or legal guardian remains at the tanning facility while the person uses the device.
(g) Before any person 16 or 17 years of age uses a tanning facility device for the first time, the person must give the operator a written informed consent statement signed and dated by the person's parent or legal guardian stating that the parent or legal guardian has read and understood the warnings given by the tanning facility, consents to the minor's use of a tanning device, and agrees that the minor will use protective eyewear. In addition, a person 13, 14, or 15 years of age must be accompanied by a parent or legal guardian who must remain at the tanning facility while the person uses the tanning device.
(h) When a tanning device is in use by a person, another person may not be allowed in the area of the tanning device.
(i) A record of each customer using a tanning device shall be maintained at the tanning facility at least until the third anniversary of the date of the customer's last use of a tanning device. The board by rule shall prescribe the form and content of the records. The record shall include:
(1) the date and time of the customer's use of a tanning device; (2) the length of time the tanning device was used; (3) any injury or illness resulting from the use of a tanning device; (4) any written informed consent statement required to be signed under Subsection (e);
(5) the customer's skin type, as determined by the customer by using the Fitzpatrick scale for classifying a skin type;
(6) whether the customer has a family history of skin cancer; and (7) whether the customer has a past medical history of skin cancer. (j) An operator shall keep an incident log at each tanning facility. The log shall be maintained at the tanning facility at least until the third anniversary of the date of an incident. The board by rule shall prescribe the form and content of the log. The log shall include each:
(1) alleged injury; (2) use of a tanning device by a customer not wearing protective eyewear; (3) mechanical problem with a tanning device; and (4) customer complaint. (k) The Texas Department of Health shall provide to each applicant for an original or renewal license a written copy of the Fitzpatrick scale.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 5, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 4, eff. Sept. 1, 2001.
§ 145.009. LICENSES. (a) A person may not operate a tanning facility unless the person holds a license issued by the department to operate the facility. Unless revoked or suspended, a license is valid until the first anniversary of the date the license was issued. A separate license is required for each tanning facility.
(b) The license shall be displayed in an open public area of the tanning facility.
(c) The board annually shall renew licenses after application for renewal is made on forms provided by the department for this purpose and after receipt of renewal fees.
(d) The department by rule may adopt a system under which licenses expire on various dates during the year. As part of this system the license fees and the annual renewal fees may be prorated on a monthly basis to reflect the actual number of months the license is valid.
(e) The department may revoke, suspend, suspend on an emergency basis, or probate by an emergency order of the commissioner, or the commissioner's designee a license to operate a tanning facility for:
(1) a failure to pay a license fee or an annual renewal fee for a license; (2) an applicant's acquisition or attempted acquisition of a license by fraud or deception;
(3) a violation of this chapter; (4) a violation of a rule of the department adopted under this chapter; or
(5) a violation of an order issued under this chapter. (f) A license issued under this chapter shall be returned to the department if the tanning facility:
(1) ceases to operate as a business permanently; (2) changes the ownership of the tanning facility; (3) changes the location of the tanning facility; or (4) changes the name of the business under which the tanning facility operates.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 6, eff. June 15, 1995.
§ 145.0095. ISSUANCE OF LICENSE FOR CERTAIN FACILITIES PROHIBITED. (a) The department may not issue or renew a license under Section 145.009 with respect to a facility that:
(1) is operated under a license or permit as a sexually oriented business issued in accordance with Section 243.007, Local Government Code;
(2) offers, as its primary business, a service or the sale, rental, or exhibition of a device or other item that is intended to provide sexual stimulation or sexual gratification to a customer; or
(3) is owned or operated by a person who has been convicted of an offense under Chapter 21 or 43, Penal Code, or Section 71.02(a)(3), Penal Code.
(b) The department shall revoke a license issued with respect to a facility if the license may not be renewed under Subsection (a).
(c) For purposes of this section, a person has been convicted of an offense if the person receives community supervision for the offense after sentence is imposed or after the person enters a plea of guilty or nolo contendere and is placed on deferred adjudication.
Added by Acts 1995, 74th Leg., ch. 684, § 7, eff. June 15, 1995.
§ 145.0096. CERTAIN ADVERTISING PROHIBITED. (a) A business described by Section 145.0095(a)(1) or (2) may not use the word "tan" or "tanning" in a sign or any other form of advertising.
(b) A person commits an offense if the person violates Subsection (a). Except as provided by Subsection (c), an offense under this subsection is a Class C misdemeanor.
(c) If it is shown on the trial of an offense under Subsection (b) that the person has previously been convicted of an offense under that subsection, the offense is a Class A misdemeanor.
Added by Acts 1995, 74th Leg., ch. 684, § 7, eff. June 15, 1995.
§ 145.010. FEES. (a) The board shall collect a fee for: (1) a license issued or renewed; or (2) a license that is modified. (b) The board may charge prorated or annual fees. (c) The board by rule shall set the fees in amounts that allow the department to recover not less than 50 percent of the costs to the department in:
(1) reviewing and acting on a license application; (2) modifying or renewing a license; (3) inspecting a licensed facility; and (4) implementing and enforcing this chapter or rules relating to this chapter.
(d) The department shall use not less than 50 percent of the license fees collected for inspecting a licensed facility or enforcement of this chapter or a rule relating to this chapter. The remainder of the license fees collected shall be used to administer this chapter.
(e) A license fee received by the department shall be deposited in the state treasury to the credit of the food and drug registration fund. The fees are dedicated to the department for the administration and enforcement of this chapter.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 8, eff. June 15, 1995.
§ 145.011. RULES; INSPECTION. (a) The board may adopt rules as necessary to implement this chapter.
(b) The commissioner or an authorized agent may inspect a tanning facility at any reasonable time to determine compliance with this chapter.
(c) A person who is required to maintain records under this chapter or a person in charge of the custody of those records shall, at the request of an authorized agent or health authority, permit the authorized agent or health authority access to copy or verify the records at reasonable times.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 9, eff. June 15, 1995.
§ 145.012. EMERGENCY ORDER. (a) The commissioner or the commissioner's designee may issue an emergency order relating to the operation of a tanning facility in the department's jurisdiction if the commissioner or the commissioner's designee determines that:
(1) operation of the tanning facility creates or poses an immediate and serious threat to human life or health; and
(2) other procedures available to the department to remedy or prevent the threat will result in unreasonable delay.
(b) The commissioner or the commissioner's designee may issue an emergency order without notice or a hearing if the commissioner or the designee determines notice or a hearing is not practical under the circumstances.
(c) If an emergency order is issued without a hearing, the department shall determine a time and place for a hearing at which the emergency order is affirmed, modified, or set aside. The hearing shall be held under rules of the department.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 10, eff. June 15, 1995.
§ 145.0121. CIVIL PENALTY; INJUNCTION. (a) If it appears that a person has violated or is violating this chapter or an order issued or a rule adopted under this chapter, the commissioner may request the attorney general or the district or county attorney or the municipal attorney of a municipality in the jurisdiction where the violation is alleged to have occurred or may occur to institute a civil suit for:
(1) an order enjoining the violation; (2) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy if the department shows that the person has engaged in or is engaging in a violation;
(3) the assessment and recovery of a civil penalty; or (4) both injunctive relief and a civil penalty. (b) A civil penalty may not exceed $25,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty.
(c) In determining the amount of the civil penalty, the court hearing the matter shall consider:
(1) the person's history of previous violations; (2) the seriousness of the violation; (3) the hazard to the health and safety of the public; (4) the demonstrated good faith of the person charged; and (5) any other matter as justice may require. (d) Venue for a suit brought under this section is the municipality or county in which the violation occurred or in Travis County.
(e) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local government.
(f) The commissioner or the attorney general may each recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the commissioner under this section shall be used for the administration and enforcement of this chapter. The expenses recovered by the attorney general shall be used by the attorney general.
Added by Acts 1995, 74th Leg., ch. 684, § 11, eff. June 15, 1995.
§ 145.0122. ADMINISTRATIVE PENALTY. (a) The board or the board's designee may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter.
(b) The penalty for a violation may be in an amount not to exceed $25,000. Each day a violation continues or occurs is a separate violation for purposes of imposing an administrative penalty.
(c) The amount of the penalty shall be based on: (1) the person's history of previous violations; (2) the seriousness of the violation; (3) the hazard the violation caused or will cause to the health and safety of the public;
(4) the demonstrated good faith of the person charged with a violation; and
(5) any other matter that justice may require. (d) If the commissioner or the commissioner's designee determines a violation has occurred, the commissioner or the commissioner's designee may issue to the board or the board's designee a report that states the facts on which the determination is based and the commissioner's or the designee's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty.
(e) Within 14 days after the date the report is issued, the commissioner or the commissioner's designee shall give written notice of the report to the person. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the commissioner or the commissioner's designee or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(g) If the person accepts the determination and recommended penalty of the commissioner or the commissioner's designee, the board by order shall approve the determination and impose the recommended penalty.
(h) If the person requests a hearing or fails to respond timely to the notice, the commissioner or the commissioner's designee shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the department. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may find that a violation has occurred and impose a penalty or may find that no violation occurred.
(i) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order.
(j) Within 30 days after the date the board's order becomes final as provided by Section 2001.144, Government Code, the person shall:
(1) pay the amount of the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition for judicial review in a district court in Travis County contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under Subsection (j)(3) may:
(1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commissioner by certified mail. (l) If the commissioner receives a copy of an affidavit under Subsection (k)(2), the commissioner may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commissioner may refer the matter to the attorney general for collection of the amount of the penalty.
(n) Judicial review of the order of the board: (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule. (o) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(p) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(q) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to Chapter 2001, Government Code.
Added by Acts 1995, 74th Leg., ch. 684, § 11, eff. June 15, 1995.
§ 145.013. CRIMINAL PENALTY. (a) A person, other than a customer, commits an offense if the person violates this chapter or a rule adopted under this chapter.
(b) An offense under this chapter is a Class A misdemeanor.
Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 12, eff. June 15, 1995.
§ 145.015. TOLL-FREE NUMBER. The department shall maintain a toll-free telephone number that a customer may call to report an alleged injury regarding a tanning device or incurred at a tanning facility.
Added by Acts 2001, 77th Leg., ch. 473, § 5, eff. Sept. 1, 2001.
§ 145.016. DISCLOSURE OF RECORD PROHIBITED; EXCEPTION. (a) Except as provided by Subsection (b), an operator or other person may not disclose a customer record required by Section 145.008(i).
(b) An operator or other person may disclose a customer record: (1) if the customer, or a person authorized to act on behalf of the customer, requests the record;
(2) if the commissioner or an authorized agent or health authority requests the record under Section 145.011;
(3) if the customer consents in writing to the disclosure to another person;
(4) in a criminal proceeding in which the customer is a victim, witness, or defendant;
(5) if the record is requested in a criminal or civil proceeding by court order or subpoena; or
(6) as otherwise required by law.
Added by Acts 2001, 77th Leg., ch. 473, § 6, eff. Sept. 1, 2001. § 146.001. DEFINITIONS. In this chapter: (1) "Body piercing" means the creation of an opening in an individual's body, other than in an individual's earlobe, to insert jewelry or another decoration.
(1-a) "Body piercer" means a person who performs body piercing. (2) "Body piercing studio" means a facility in which body piercing is performed.
(3) "Tattoo" means the practice of producing an indelible mark or figure on the human body by scarring or inserting a pigment under the skin using needles, scalpels, or other related equipment. The term includes the application of permanent cosmetics.
(4) "Tattooist" means a person who performs tattooing. (5) "Tattoo studio" means an establishment or facility in which tattooing is performed.
(6) "Temporary location" means a fixed location at which an individual operator performs tattooing or body piercing for a specified period of not more than seven days in conjunction with a single event or celebration, where the primary function of the event or celebration is tattooing or body piercing.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 2, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1226, § 1, eff. Sept. 1, 2003.
§ 146.002. LICENSE REQUIRED. (a) A person may not conduct, operate, or maintain a tattoo studio unless the person holds a license issued by the department to operate the tattoo studio. Except as provided by Section 146.0025, a person may not conduct, operate, or maintain a body piercing studio unless the person holds a license issued by the department to operate the body piercing studio.
(b) Except as provided by Section 146.0025, a person may not practice tattooing or body piercing at a temporary location unless the person holds a temporary location license for tattooing or body piercing, as appropriate, issued by the department.
(c) The license must be displayed in a prominent place in the tattoo or body piercing studio or temporary location.
(d) Tattooing and body piercing are permitted only at a location that is in compliance with this chapter and rules adopted under this chapter.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 3, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 3, eff. Sept. 1, 1999.
§ 146.0021. EMPLOYMENT OF TATTOOISTS AND BODY PIERCERS; REGISTRATION REQUIRED. A tattoo studio or a body piercing studio may not employ a tattooist or a body piercer unless the person is registered with the department under this chapter.
Added by Acts 2003, 78th Leg., ch. 1226, § 2, eff. Sept. 1, 2003.
§ 146.0025. EXEMPTIONS FROM LICENSING REQUIREMENTS; EAR PIERCING ESTABLISHMENTS EXEMPT. (a) This chapter does not apply to:
(1) a medical facility licensed under other law; (2) an office or clinic of a person licensed by the Texas State Board of Medical Examiners;
(3) a person who performs only ear piercing; or (4) a facility in which only ear piercing is performed. (b) A person who conducts, operates, or maintains a facility, office, or clinic described by Subsection (a)(1), (2), or (4) is not required to obtain a license under this chapter to operate that facility.
Added by Acts 1999, 76th Leg., ch. 516, § 3, eff. Sept. 1, 1999.
§ 146.003. LICENSE APPLICATION. (a) To receive a tattoo studio license, body piercing studio license, or temporary location license, a person must submit a signed, verified license application to the department on a form prescribed by the department and must submit an application fee. In addition, the person must submit evidence from the appropriate zoning officials in the municipality or county in which the studio is proposed to be located that confirms that the studio is in compliance with existing zoning codes applicable to the studio.
Text of subsec. (b) as added by Acts 1999, 76th Leg., ch. 516, § 4
(b) On receipt of a tattoo studio or body piercing studio license application, the department shall inspect the proposed tattoo or body piercing studio to determine compliance with this chapter and rules adopted by the board under this chapter. In addition, the department shall request confirmation from the appropriate building and zoning officials in the municipality or county in which the studio is proposed to be located to determine compliance with existing building and zoning codes applicable to the studio. The department may issue a license for a tattoo or body piercing studio after determining that the studio is in compliance with applicable statutes, rules, and building and zoning codes.
Text of subsec. (b) as added by Acts 1999, 76th Leg., ch. 1528, § 1
(b) The department may issue a license or temporary location license for a tattoo studio after determining that the studio is in compliance with applicable statutes, rules, and zoning codes.
(c) Repealed by Acts 1999, 76th Leg., ch. 1528, § 9(1), eff. September 1, 1999.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 4, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 4, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, § 1, 9(1), eff. Sept. 1, 1999.
§ 146.004. LICENSE TERM; RENEWAL. (a) A tattoo studio or body piercing studio license is valid for one year from the date of issuance. A temporary tattooing or body piercing location license is valid for a specified period not to exceed seven days.
(b) A tattoo studio or body piercing studio license may be renewed annually on payment of the required renewal fee.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 5, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 5, eff. Sept. 1, 1999.
§ 146.0041. GENERAL GROUNDS FOR REFUSAL. (a) The department may refuse to issue an original or renewal tattoo studio or body piercing studio license if it has reasonable grounds to believe and finds that any of the following circumstances exist:
(1) the applicant has been convicted of a violation of this chapter during the two years immediately preceding the filing of the application;
(2) three years have not elapsed since the termination, by pardon or otherwise, of a sentence imposed on the applicant for a conviction associated with tattooing or body piercing;
(3) the applicant violated or caused to be violated a provision of this chapter or a rule of the department adopted under this chapter involving moral turpitude during the six months immediately preceding the filing of the application;
(4) the applicant failed to answer or falsely or incorrectly answered a question in an original or renewal application;
(5) the applicant is indebted to the state for a fee or penalty imposed by this chapter or by rule of the department adopted under this chapter;
(6) the applicant is a minor; or (7) the applicant does not provide an adequate building available at the address for which the license is sought before conducting any activity authorized by the license.
(b) The department may refuse to issue or renew, for a period of one year from the date of application for the initial or renewal license, a tattoo studio or body piercing studio license for a premises where a shooting, stabbing, or other violent act or an offense involving drugs occurred that involved a license applicant, license holder, or registrant under this chapter or a patron or employee of the studio.
Added by Acts 2003, 78th Leg., ch. 1226, § 3, eff. Sept. 1, 2003.
§ 146.0042. REVOCATION OR SUSPENSION OF LICENSE. (a) In Subsection (b), "license holder" includes each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock.
(b) The department may suspend for not more than 60 days or revoke an original or renewal tattoo studio or body piercing studio license if it is found, after notice and hearing, that any of the following is true:
(1) the license holder has been finally convicted of a violation of this chapter;
(2) the license holder violated a provision of this chapter or a rule of the department adopted under this chapter;
(3) the license holder made a false or misleading statement in connection with the original or renewal application, either in the formal application itself or in any other written instrument relating to the application submitted to the department;
(4) the license holder is indebted to the state for fees or payment of penalties imposed by this chapter or by a rule of the department adopted under this chapter;
(5) the license holder knowingly misrepresented to a customer or the public any tattoo or body piercing jewelry sold by the license holder; or
(6) the license holder was intoxicated on the licensed premises. (c) The department may refuse to renew or, after notice and hearing, suspend for not more than 60 days or revoke a tattoo studio or body piercing studio license if the department finds that the license holder is shown on the records of the comptroller as being subject to a final determination of taxes due and payable under Chapter 151, Tax Code, or is shown on the records of the comptroller as being subject to a final determination of taxes due and payable under Chapter 321, Tax Code.
(d) If a license holder cannot be located for any notice required under this section, the department shall provide notice by posting a copy of the order on the front door of the licensed premises.
Added by Acts 2003, 78th Leg., ch. 1226, § 3, eff. Sept. 1, 2003.
§ 146.005. FEES. (a) The board shall set license and registration fees and license and registration renewal fees in amounts necessary to administer this chapter.
(b) Fees collected under this section may only be appropriated to the department to administer and enforce this chapter.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 1226, § 4, eff. Sept. 1, 2003.
§ 146.006. CHANGE OF LOCATION. (a) A person holding a tattoo studio or body piercing studio license under this chapter who intends to change the location of the tattoo or body piercing studio shall notify the department in writing of that intent not less than 30 days before the change is to occur. The notice shall include the street address of the new location and the name and residence address of the individual in charge of the business at the new location.
(b) Not later than the 10th day after the change of location is complete, a person holding a license under this chapter shall notify the department in writing and shall verify the information submitted under Subsection (a).
(c) Notice under this section must be sent to the department's central office by certified mail, return receipt requested.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 6, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 6, eff. Sept. 1, 1999.
§ 146.007. COMPLIANCE WITH CHAPTER AND RULES. (a) A person who owns, operates, or maintains a tattoo or body piercing studio or practices tattooing or body piercing at a temporary location shall comply with this chapter, Chapter 431, and rules adopted under this chapter and Chapter 431.
(b) The board, commissioner, and department may enforce Chapter 431 in relation to a drug, cosmetic, or device that is used in tattooing and that is not otherwise subject to that chapter as if the drug, cosmetic, or device satisfied the definitions assigned those terms under Section 431.002.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 7, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 7, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, § 2, eff. Sept. 1, 1999.
§ 146.008. ASEPTIC TECHNIQUES. A person who owns, operates, or maintains a tattoo or body piercing studio and each tattooist or person who performs body piercing who works in the studio or at a temporary location shall take precautions to prevent the spread of infection, including:
(1) using germicidal soap to clean the hands of the tattooist or person who performs body piercing and the skin area of the client to be tattooed or pierced;
(2) wearing clean apparel and rubber gloves; (3) using sterile tools and equipment as provided by Section 146.011; and (4) keeping the tattoo or body piercing studio or temporary location in a sanitary condition.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 8, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 8, eff. Sept. 1, 1999.
§ 146.009. BUILDING AND LOCATION. A tattoo or body piercing studio must be in a permanent, nondwelling building located in an area in which the location is permissible under local zoning codes, if any.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 9, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 9, eff. Sept. 1, 1999.
Repeal
Without reference to the amendment of this section by Acts 1999, 76th Leg., ch. 516, § 9, Acts 1999, 76th Leg., ch. 1528, § 9(2) repeals this section effective September 1, 1999.
§ 146.010. SANITATION REQUIREMENTS. (a) The board by rule shall establish sanitation requirements for tattoo and body piercing studios and any other necessary requirements relating to the building or part of the building in which a tattoo or body piercing studio is located.
(b) A person who owns, operates, or maintains a tattoo or body piercing studio shall comply with the rules adopted under this section.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 10, eff. Sept. 1, 1999.
§ 146.011. TOOLS AND EQUIPMENT. (a) A tattooist or person who performs body piercing shall use tools and equipment for tattooing or body piercing that have been properly sterilized and kept in a sterile condition.
(b) A tattooist or person who performs body piercing shall sterilize tools and equipment used on one client before using them on another client.
(c) Tools and equipment shall be sterilized by: (1) the use of a dry heat sterilizer; or (2) steam pressure treatment in an autoclave. (d) All needles and instruments shall be kept in a clean, dust-tight container when not in use.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 516, § 11, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, § 3, eff. Sept. 1, 1999.
§ 146.012. TATTOOS PROHIBITED FOR CERTAIN PERSONS. (a) A tattooist may not tattoo:
(1) except as provided by Subsection (a-1), a person younger than 18 years of age; or
(2) a person who the tattooist suspects is under the influence of alcohol or drugs.
(a-1) A tattooist may tattoo a person younger than 18 years of age if: (1) the tattoo will cover a tattoo that contains: (A) obscene or offensive language or symbols; (B) gang-related names, symbols, or markings; (C) drug-related names, symbols, or pictures; or (D) other words, symbols, or markings that the person's parent or guardian considers would be in the best interest of the person to cover; and
(2) the person has obtained consent from the person's parent or guardian to cover the tattoo.
(b) The consent required by Subsection (a-1) may be satisfied by the individual's parent or guardian:
(1) being physically present at the tattoo studio at the time the tattooing is performed;
(2) executing an affidavit stating that the person is the parent or guardian of the individual on whom the tattooing is to be performed;
(3) presenting evidence of the person's identity to the person who will perform the tattooing; and
(4) presenting evidence of the person's status as parent or guardian of the individual who will receive the tattoo.
(c) A person younger than 18 years of age commits an offense if the person falsely states that the person is 18 years of age or older or presents any document that indicates that the person is 18 years of age or older to a person engaged in the operation of a tattoo studio. An offense under this subsection is a Class B misdemeanor
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 11, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, § 4, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1226, § 5, eff. Sept. 1, 2003.
§ 146.0124. BODY PIERCING PROHIBITED FOR CERTAIN PERSONS. A person may not perform body piercing if the person suspects that the individual on whom the body piercing is to be performed is under the influence of alcohol or drugs.
Added by Acts 1999, 76th Leg., ch. 516, § 12, eff. Sept. 1, 1999.
§ 146.0125. BODY PIERCING PROHIBITED WITHOUT PARENTAL CONSENT; EXCEPTION. (a) A person may not perform body piercing on an individual younger than 18 years of age without the consent of a parent, managing conservator, or guardian of the individual.
(b) The consent must indicate the part of the person's body that may be pierced.
(c) The consent required by Subsections (a) and (b) may be satisfied by the individual's parent or guardian:
(1) being physically present at the body piercing studio at the time the body piercing is performed;
(2) executing an affidavit stating that the person is the parent or guardian of the individual on whom the body piercing is to be performed;
(3) presenting evidence of the person's identity to the person who will perform the body piercing; and
(4) presenting evidence of the person's status as parent or guardian of the individual who will receive the body piercing.
(d) A person younger than 18 years of age commits an offense if the person falsely states that the person is 18 years of age or older or presents any document that indicates that the person is 18 years of age or older to a person engaged in the operation of a body piercing studio. An offense under this subsection is a Class B misdemeanor.
Added by Acts 1999, 76th Leg., ch. 516, § 12, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1226, § 6, eff. Sept. 1, 2003.
§ 146.0126. TONGUE SPLITTING PROHIBITED. (a) For purposes of this section, "tongue splitting" means cutting a human tongue into two or more parts.
(b) A person may not perform tongue splitting.
Added by Acts 2003, 78th Leg., ch. 1226, § 7, eff. Sept. 1, 2003.
§ 146.013. MAINTENANCE OF RECORDS. (a) A tattooist shall maintain a permanent record of each person tattooed by the tattooist for a period established by the board. A person who performs body piercing shall maintain a permanent record of each individual whose body is pierced by the person for a period established by the board.
(b) The record shall be available for inspection on the request of the department.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 516, § 13, eff. Sept. 1, 1999.
§ 146.014. REPORT OF INFECTION. A person who owns, operates, or maintains a tattoo or body piercing studio shall report to the department any infection resulting from tattooing or body piercing as soon as it becomes known.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 12, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 14, eff. Sept. 1, 1999.
§ 146.015. RULES; ENFORCEMENT. (a) The board shall adopt rules to implement this chapter.
(b) The department shall enforce this chapter and the rules adopted under this chapter and may issue orders to compel compliance.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993.
§ 146.016. INSPECTIONS. (a) The department shall inspect a tattoo or body piercing studio to determine if the studio complies with this chapter and the rules adopted under this chapter.
(b) A person who owns, operates, or maintains a tattoo or body piercing studio shall allow inspection of the studio by the department at any time the studio is in operation.
(c) The department shall inform the person who owns, operates, or maintains a tattoo or body piercing studio of any violation discovered by the department under this section and shall give the person a reasonable period in which to take necessary corrective action.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, § 13, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, § 15, eff. Sept. 1, 1999.
§ 146.017. LICENSE DENIAL, SUSPENSION, OR REVOCATION. (a) The department may refuse to issue a license or suspend or revoke a license issued under this chapter if an applicant or license holder does not comply with this chapter or a rule adopted or order issued under this chapter.
(b) The refusal to issue a license, the suspension or revocation of a license, and any appeals are governed by the board's formal hearing procedures and the procedures for a contested case hearing under Chapter 2001, Government Code. A person may appeal a final decision of the department as provided by that chapter.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, § 5, eff. Sept. 1, 1999.
§ 146.018. OFFENSE; CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class A misdemeanor. (c) Each day of violation constitutes a separate offense.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Jan. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1528, § 6, eff. Sept. 1, 1999.
§ 146.019. ADMINISTRATIVE PENALTY. (a) The commissioner may impose an administrative penalty against a person who violates a rule adopted under Section 146.007 or an order adopted or license issued under this chapter.
(b) The penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations; (4) the amounts necessary to deter future violations; (5) efforts to correct the violation; and (6) any other matter that justice may require. (d) The commissioner who determines that a violation has occurred shall issue an order that states the facts on which the determination is based, including an assessment of the penalty.
(e) Within 14 days after the date the report is issued, the commissioner shall give written notice of the report to the person. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the commissioner or may make written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(g) If the person accepts the determination and recommended penalty of the commissioner, the commissioner by order shall approve the determination and impose the recommended penalty.
(h) If the person requests a hearing or fails to respond timely to the notice, the commissioner shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the commissioner by order may find that a violation has occurred and impose a penalty or may find that no violation occurred.
(i) The notice of the commissioner's order given to the person under Chapter 2001, Government Code must include a statement of the right of the person to judicial review of the order.
(j) Within 30 days after the date the commissioner's order is final as provided by Subchapter F, Chapter 2001, Government Code, the person shall:
(1) pay the amount of the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under Subsection (j)(3) of this section may:
(1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or
(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final; or
(2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commissioner by certified mail. (l) The commissioner who receives a copy of an affidavit under Subsection (k)(2) of this section may file, with the court within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commissioner may refer the matter to the attorney general for collection of the amount of the penalty.
(n) Judicial review of the order of the commissioner: (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code and its subsequent amendments; and
(2) is under the substantial evidence rule. (o) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(p) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(q) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to Chapter 2001, Government Code.
(s) Any duty of the commissioner under this section may be delegated to employees of the department.
Added by Acts 1993, 73rd Leg., ch. 580, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(51), (55), (59), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, § 7, eff. Sept. 1, 1999.
§ 146.020. CIVIL PENALTY; INJUNCTION. (a) If it appears that a person has violated or is violating this chapter or an order issued or a rule adopted under this chapter, the commissioner may request the attorney general or the district attorney, county attorney, or municipal attorney in the jurisdiction where the violation is alleged to have occurred, is occurring, or may occur to institute a civil suit for:
(1) an order enjoining the violation; (2) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy, if the department shows that the person has engaged in or is engaging in a violation;
(3) the assessment and recovery of a civil penalty; or (4) both injunctive relief and a civil penalty. (b) A civil penalty may not exceed $5,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty.
(c) In determining the amount of the civil penalty, the court hearing the matter shall consider:
(1) the person's history of previous violations; (2) the seriousness of the violation; (3) the hazard to the health and safety of the public; (4) the demonstrated good faith of the person charged; and (5) any other matter as justice may require. (d) Venue for a suit brought under this section is in the county in which the violation occurred or in Travis County.
(e) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local government.
(f) The commissioner or the attorney general may recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the commissioner under this section may be used for the administration and enforcement of this chapter. The expenses recovered by the attorney general may be used by the attorney general for any purpose.
Added by Acts 1999, 76th Leg., ch. 1528, § 8, eff. Sept. 1, 1999.
§ 146.021. EMERGENCY ORDERS. (a) The commissioner may, with or without notice or hearing, issue an emergency order relating to regulation under this chapter of a tattooist or body piercer, or to the operation of a tattoo studio or body piercing studio, if the commissioner finds:
(1) that: (A) the operation of the tattoo studio or body piercing studio or the performance of tattooing or body piercing by the tattooist or body piercer presents an immediate and serious threat to human health; or
(B) a shooting, stabbing, or other violent act or an offense involving drugs:
(i) occurred at the tattoo studio or body piercing studio; or (ii) involved the tattooist or body piercer; and (2) that other procedures available to the department to remedy or prevent the threat will result in an unreasonable delay.
(b) If the commissioner issues an emergency order under this section without a hearing, the department shall set a hearing under Chapter 2001, Government Code, to affirm, modify, or set aside the emergency order.
(c) If the license or registration holder cannot be located for a notice required under this section, the department shall provide notice by posting a copy of the order on the front door of the premises of the license holder or the premises where the registration holder is employed.
Added by Acts 2003, 78th Leg., ch. 1226, § 8, eff. Sept. 1, 2003.
§ 146.022. REGISTRATION REQUIRED FOR TATTOOISTS AND BODY PIERCERS. (a) A person may not perform tattooing or body piercing at a tattoo studio or a body piercing studio unless the person holds a registration issued by the department as a tattooist or body piercer under this section.
(b) The registration holder shall display the registration in a prominent place at each tattoo studio or body piercing studio or temporary location where the person is employed.
Added by Acts 2003, 78th Leg., ch. 1226, § 8, eff. Sept. 1, 2003.
§ 146.023. REGISTRATION APPLICATION. To receive a tattooist or body piercer registration, the person must submit:
(1) a signed registration application to the department on a form prescribed by the department;
(2) the application fee; and (3) proof of completion of a training course approved by the department for tattooists and body piercers that includes not less than six hours related to bloodborne pathogens, infection control, and aseptic technique.
Added by Acts 2003, 78th Leg., ch. 1226, § 8, eff. Sept. 1, 2003.
§ 146.024. REGISTRATION TERM; RENEWAL. (a) A tattooist or body piercer registration is valid for one year from the date of issuance.
(b) A tattooist or body piercer registration may be renewed annually on: (1) payment of the required renewal fee; and (2) submission of proof of completion of a training course approved by the department that includes not less than four hours related to bloodborne pathogens, infection control, and aseptic technique.
Added by Acts 2003, 78th Leg., ch. 1226, § 8, eff. Sept. 1, 2003.
§ 146.025. COURSE OF INSTRUCTION FOR TATTOOISTS AND BODY PIERCERS; RULES; FEES. (a) The department shall prepare or approve a course of instruction sufficient to meet the requirements for application for a registration under Section 146.023 or renewal of a registration under Section 146.024.
(b) The department may approve a course of instruction based on standards set by the department to reasonably ensure that a tattooist or body piercer develops the job skills and knowledge necessary to protect public health and safety.
(c) A prospective course provider must submit to the department for approval the course length and curriculum content for each course offered by the provider. The provider may implement a course length and curriculum content only after department approval.
(d) The department by rule shall set a fee in an amount reasonable and necessary to cover the cost of reviewing the course content and issuing the approval.
Added by Acts 2003, 78th Leg., ch. 1226, § 8, eff. Sept. 1, 2003. § 162.001. DEFINITIONS. In this chapter: (1) "Blood bank" means a facility that obtains blood from voluntary donors, as that term is defined by the United States Food and Drug Administration, the American Association of Blood Banks, and the American Red Cross Blood Services and that is registered or licensed by the Office of Biologics of the United States Food and Drug Administration and accredited by the American Association of Blood Banks or the American Red Cross Blood Services, or is qualified for membership in the American Association of Tissue Banks. The term includes a blood center, regional collection center, tissue bank, and transfusion service.
(2) "AIDS" means acquired immune deficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.
(3) "HIV" means human immunodeficiency virus.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, § 5.08(a), eff. Sept. 1, 1989.
§ 162.002. REQUIRED TESTING OF BLOOD. (a) For each donation of blood, a blood bank shall require the donor to submit to tests for infectious diseases, including tests for AIDS, HIV, or hepatitis, and serological tests for contagious venereal diseases.
(b) A blood bank is not required to obtain the donor's informed consent before administering tests for infectious diseases and is not required to provide counseling concerning the test results.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.003. CONFIDENTIALITY OF BLOOD BANK RECORDS. The medical and donor records of a blood bank are confidential and may not be disclosed except as provided by this chapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.004. DISCLOSURE REQUIRED BY LAW. A blood bank shall disclose all information required by law, including HIV test results, to:
(1) the department and a local health authority as required under Chapter 81 (Communicable Disease Prevention and Control Act); (2) the Centers for Disease Control of the United States Public Health Service, as required by federal law or regulation; or
(3) any other local, state, or federal entity, as required by law, rule, or regulation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.005. DISCLOSURE TO CERTAIN PHYSICIANS OR PERSON TESTED. A blood bank shall disclose blood test results and the name of the person tested to:
(1) the physician or other person authorized by law who ordered the test; (2) the physician attending the person tested; or (3) the person tested or a person legally authorized to consent to the test on behalf of the person tested.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.006. DISCLOSURE TO OTHER BLOOD BANKS. (a) A blood bank may report to other blood banks the name of a donor with a possible infectious disease according to positive blood test results.
(b) A blood bank that reports a donor's name to other blood banks under this section may not disclose the infectious disease that the donor has or is suspected of having.
(c) A blood bank that reports as provided by this section does not breach a confidence arising out of any confidential relationship.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.007. REPORT TO RECIPIENT OR TRANSFUSER. (a) A blood bank shall report blood test results for blood confirmed as HIV positive by the normal procedures blood banks presently use or found to be contaminated by any other infectious disease to:
(1) the hospital or other facility in which the blood was transfused or provided; (2) the physician who transfused the infected blood; or (3) the recipient of the blood. (b) A blood bank may report blood test results for statistical purposes. (c) A blood bank that reports test results under this section may not disclose the name of the donor or person tested or any other information that could result in the disclosure of the donor's or person's identity, including an address, social security number, designated recipient, or replacement donation information.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.008. PROCEDURES FOR NOTIFYING BLOOD RECIPIENTS. Each hospital, physician, health agency, and other transfuser of blood shall strictly follow the official "Operation Look-Back" procedure of the American Association of Blood Banks or the American Red Cross Blood Services in notifying past and future recipients of blood. The only exception to notifying a recipient of blood is if the recipient is dead or cannot be located.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, § 5.08(b), eff. Sept. 1, 1989.
§ 162.009. PROVISION OF BLOOD SAMPLES FOR TESTING. On request, a blood bank shall provide blood samples to hospitals, laboratories, and other blood banks for additional, repetitive, or different testing.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.010. GENERAL POWERS AND DUTIES OF COURT. (a) After notice and hearing, a court of competent jurisdiction may require a blood bank to provide a recipient of blood from the blood bank with the results of tests of the blood of each donor of blood transfused into the recipient. The court may also require the test results to be given to an heir, parent, or guardian of the recipient, or a personal representative of the recipient's estate. The test results must be given in accordance with Section 162.007.
(b) If a blood bank fails to or cannot provide the test results as required under Subsection (a), the court may require the blood bank to use every reasonable effort, including any effort directed by the court, to locate any donor of the blood in question. The court may require the blood bank to obtain from that donor a blood sample for testing and may direct the blood bank to provide blood test results, samples of the blood, or both, to an independent laboratory designated by the court for testing. The results of the independent laboratory test must be made available to the recipient, an heir, parent, or guardian of the recipient, or the personal representative of the recipient's estate.
(c) Section 162.002 applies if a blood bank requires a donor to provide a blood sample for testing under Subsection (b).
(d) If a blood test result is positive or if the blood bank fails to or cannot provide a blood test result or blood sample as required under Subsection (b), the court may require the blood bank to provide any information that the court determines is necessary to satisfy the court that the blood bank has complied in all respects with this section and the court's order or has demonstrated every reasonable effort to comply. The blood bank must provide the information to the judge of the court in camera and under seal.
(e) The court may not disclose to any other person the name of a donor or any other information that could result in the disclosure of a donor's identity, including an address, social security number, designated recipient, or replacement donation information. However, on the motion of any party, the court shall order the taking of the donor's deposition at a specified time and in a manner that maintains the donor's anonymity.
(f) The court may not deny a party's attorney the right to orally cross-examine the donor.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.011. DISCOVERY POWERS OF COURT. (a) A court of competent jurisdiction shall exercise the discovery powers granted in this section on the motion of any party. The court shall exercise the powers to the extent reasonably necessary to obtain information from or relating to a donor if that information:
(1) is reasonably calculated to lead to the discovery of admissible evidence regarding any matter relevant to the subject matter of a pending proceeding; and
(2) cannot otherwise be obtained without threatening the disclosure of the name of a donor or other information that could result in the disclosure of a donor's identity, including an address, social security number, designated recipient, or replacement donation information.
(b) This section does not apply to information obtainable under Section 162.010.
(c) The court may: (1) order the deposition of any witness, including a donor, orally, on written questions and cross-questions propounded by the parties, or both; and
(2) compel the production of documents and things. (d) A subpoena issued to a donor under this section may be served only in person at the donor's residence address. On a showing that service in person cannot be made at the donor's residence despite diligent efforts to do so, the court may order service on the donor at other places as directed by the court.
(e) The court shall deliver to the parties all discoverable information obtained through the exercise of powers provided by this section, including testimony, documents, or things. The court shall first delete from that information the name of any donor or any other information that could result in the disclosure of a donor's identity, including information described by Subsection (a)(2). The court may substitute fictitious names, such as "John Doe," or make other changes as necessary to protect the confidentiality of the donor's identity in the information made available to the parties.
(f) The court may not disclose confidential donor information to any person other than a person acting under Section 162.010(e) or (f). That person may not disclose the information to others.
(g) The exercise of the court's powers under this section is governed by the Texas Rules of Civil Procedure, except to the extent of any conflict with this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.012. LIMITATION ON LIABILITY. (a) A donor who provides information or blood samples under Section 162.010 is immune from all liability arising out of the donation of the blood transfused into a recipient.
(b) A blood bank is not liable for the disclosure of information to a court in accordance with an order issued under Sections 162.010(b)-(f).
(c) A presumption of negligence or causation does not attach to a donor's positive test result if the test result is obtained after the donation of blood or blood components that is the subject of discovery as provided under Section 162.011.
(d) Except as provided by Section 162.013 or 162.014, a person who negligently or intentionally discloses blood bank records in violation of this chapter is liable only for actual damages resulting from the negligent or intentional disclosure.
(e) This chapter does not give rise to any liability under Subchapter E, Chapter 17, Business & Commerce Code (Deceptive Trade Practices-Consumer Protection Act) .
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.013. CIVIL PENALTY. (a) A person who is injured by a violation of Section 162.006, 162.007, 162.010, or 162.011 may bring a civil action for damages. In addition, any person may bring an action to restrain such a violation or threatened violation.
(b) If it is found in a civil action that a person has violated a section listed in Subsection (a), that person is liable for:
(1) actual damages; (2) a civil penalty of not more than $1,000; and (3) court costs and reasonable attorney's fees incurred by the person bringing the action.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.014. CRIMINAL PENALTY. (a) A person commits an offense if the person discloses information in violation of Section 162.006, 162.007, 162.010, or 162.011.
(b) An offense under this section is a Class C misdemeanor. (c) Each disclosure made in violation of Section 162.006 or 162.007 constitutes a separate offense.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 162.015. DONATION OF BLOOD BY PERSONS YOUNGER THAN 18 YEARS OF AGE. A person who is 17 years of age may consent to the donation of the person's blood or blood components. A person younger than 18 years of age may not receive any compensation from a blood bank for a donation of the person's blood or blood components.
Added by Acts 1993, 73rd Leg., ch. 160, § 1, eff. Sept. 1, 1993.
§ 162.016. BE A BLOOD DONOR ACCOUNT. (a) The be a blood donor account is a separate account in the general revenue fund. The account is composed of:
(1) money deposited to the credit of the account under Section 504.641, Transportation Code; and
(2) gifts, grants, donations, and legislative appropriations. (b) The department administers the account and may spend money credited to the account only to:
(1) make grants to nonprofit blood centers in this state for programs to recruit and retain volunteer blood donors; and
(2) defray the cost of administering the account. (c) The board: (1) may accept gifts, grants, and donations from any source for the benefit of the account; and
(2) by rule shall establish guidelines for spending money credited to the account.
Added by Acts 2003, 78th Leg., ch. 1320, § 9, eff. Sept. 1, 2003.
§ 162.017. BE A BLOOD DONOR ADVISORY COMMITTEE. (a) The commissioner shall appoint a five-member be a blood donor advisory committee composed of:
(1) one volunteer blood donor who has given at least one gallon of blood in the two years preceding the appointment;
(2) two representatives from nonprofit blood centers; (3) one person who has received a blood transfusion in the five years preceding the appointment; and
(4) one representative from the department. (b) The commissioner shall designate one member as presiding officer of the committee.
(c) The committee shall: (1) meet at least annually or as called by the commissioner; (2) assist the board in establishing guidelines for the expenditure of money credited to the be a blood donor account; and
(3) review and make recommendations to the department on applications submitted to the department for grants funded with money credited to the be a blood donor account.
(d) Members of the committee serve without compensation and are not entitled to reimbursement for expenses. Members of the committee serve staggered four-year terms, with the terms of as near one-half as possible of the members expiring on January 31 of each even-numbered year.
Added by Acts 2003, 78th Leg., ch. 1320, § 9, eff. Sept. 1, 2003. § 163.001. PROGRAM. (a) The department shall develop a model public health education program suitable for school-age children and shall make the program available to any person on request. The program should emphasize:
(1) that abstinence from sexual intercourse is the most effective protection against unwanted teenage pregnancy, sexually transmitted diseases, and acquired immune deficiency syndrome (AIDS) when transmitted sexually;
(2) that abstinence from sexual intercourse outside of lawful marriage is the expected societal standard for school-age unmarried persons; and
(3) the physical, emotional, and psychological dangers of substance abuse, including the risk of acquired immune deficiency syndrome (AIDS) through the sharing of needles during intravenous drug usage.
(b) Course materials and instruction relating to sexual education or sexually transmitted diseases should be age appropriate.
Added by Acts 1991, 72nd Leg., ch. 14, § 51, eff. Sept. 1, 1991.
§ 163.002. INSTRUCTIONAL ELEMENTS. Course materials and instruction relating to sexual education or sexually transmitted diseases should include:
(1) an emphasis on sexual abstinence as the only completely reliable method of avoiding unwanted teenage pregnancy and sexually transmitted diseases;
(2) an emphasis on the importance of self-control, responsibility, and ethical conduct in making decisions relating to sexual behavior;
(3) statistics, based on the latest medical information, that indicate the efficacy of the various forms of contraception;
(4) information concerning the laws relating to the financial responsibilities associated with pregnancy, childbirth, and child rearing;
(5) information concerning the laws prohibiting sexual abuse and the legal and counseling options available to victims of sexual abuse;
(6) information on how to cope with and rebuff unwanted physical and verbal sexual advances, as well as the importance of avoiding the sexual exploitation of other persons;
(7) psychologically sound methods of resisting unwanted peer pressure; and
(8) emphasis, provided in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under Section 21.06, Penal Code.
Added by Acts 1991, 72nd Leg., ch. 14, § 51, eff. Sept. 1, 1991. § 164.001. SHORT TITLE. This chapter may be cited as the Treatment Facilities Marketing Practices Act.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.002. LEGISLATIVE PURPOSE. The purpose of this chapter is to safeguard the public against fraud, deceit, and misleading marketing practices and to foster and encourage competition and fair dealing by mental health facilities and chemical dependency treatment facilities by prohibiting or restricting practices by which the public has been injured in connection with the marketing and advertising of mental health services and the admission of patients. Nothing in this chapter should be construed to prohibit a mental health facility from advertising its services in a general way or promoting its specialized services. However, the public should be able to distinguish between the marketing activities of the facility and its clinical functions.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.003. DEFINITIONS. In this chapter: (1) "Advertising" or "advertise" means a solicitation or inducement, through print or electronic media, including radio, television, or direct mail, to purchase the services provided by a treatment facility.
(2) "Chemical dependency" has the meaning assigned by Section 462.001. (3) "Chemical dependency facility" means a treatment facility as that term is defined by Section 462.001.
(4) "Intervention and assessment service" means a service that offers assessment, counseling, evaluation, intervention, or referral services or makes treatment recommendations to an individual with respect to mental illness or chemical dependency.
(5) "Mental health facility" means: (A) a "mental health facility" as defined by Section 571.003; (B) a residential treatment facility, other than a mental health facility, in which persons are treated for emotional problems or disorders in a 24-hour supervised living environment; and
(C) an adult day-care facility or adult day health care facility as defined by Section 103.003, Human Resources Code.
(6) "Mental health professional" means a: (A) "physician" as defined by Section 571.003; (B) "licensed professional counselor" as defined by Section 503.002, Occupations Code;
(C) "chemical dependency counselor" as defined by Section 504.001, Occupations Code;
(D) "psychologist" offering "psychological services" as defined by Section 501.003, Occupations Code;
(E) "registered nurse" licensed under Chapter 301, Occupations Code; (F) " vocational nurse" licensed under Chapter 301, Occupations Code; (G) "licensed marriage and family therapist" as defined by Section 502. 002, Occupations Code; and
(H) "social worker" as defined by Section 505.002, Occupations Code. (7) "Mental health services" has the meaning assigned by Section 531.002. (8) "Mental illness" has the meaning assigned by Section 571.003. (9) "Referral source" means a person who is in a position to refer or who refers a person to a treatment facility. "Referral source" does not include a physician, an insurer, a health maintenance organization (HMO), a preferred provider arrangement (PPA), or other third party payor or discount provider organization (DPO) where the insurer, HMO, PPA, third party payor, or DPO pays in whole or in part for the treatment of mental illness or chemical dependency.
(10) "Treatment facility" means a chemical dependency facility and a mental health facility.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.784, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 553, § 2.010, eff. Feb. 1, 2004.
§ 164.004. EXEMPTIONS. This chapter does not apply to: (1) a treatment facility: (A) operated by the Texas Department of Mental Health and Mental Retardation, a federal agency, or a political subdivision; or
(B) funded by the Texas Commission on Alcohol and Drug Abuse; (2) a community center established under Subchapter A, Chapter 534, or a facility operated by a community center; or
(3) a facility owned and operated by a nonprofit or not-for-profit organization offering counseling concerning family violence, help for runaway children, or rape.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 96, § 1, eff. May 20, 2003.
§ 164.005. CONDITIONING EMPLOYEE OR AGENT RELATIONSHIPS ON PATIENT REVENUE. A treatment facility may not permit or provide compensation or anything of value to its employees or agents, condition employment or continued employment of its employees or agents, set its employee or agent performance standards, or condition its employee or agent evaluations, based on:
(1) the number of patient admissions resulting from an employee's or agent's efforts;
(2) the number or frequency of telephone calls or other contacts with referral sources or patients if the purpose of the telephone calls or contacts is to solicit patients for the treatment facility; or
(3) the existence of or volume of determinations made respecting the length of patient stay.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.006. SOLICITING AND CONTRACTING WITH CERTAIN REFERRAL SOURCES. A treatment facility or a person employed or under contract with a treatment facility, if acting on behalf of the treatment facility, may not:
(1) contact a referral source or potential client for the purpose of soliciting, directly or indirectly, a referral of a patient to the treatment facility without disclosing its soliciting agent's, employee's, or contractor's affiliation with the treatment facility;
(2) offer to provide or provide mental health or chemical dependency services to a public or private school in this state, on a part-time or full-time basis, the services of any of its employees or agents who make, or are in a position to make, a referral, if the services are provided on an individual basis to individual students or their families. Nothing herein prohibits a treatment facility from:
(A) offering or providing educational programs in group settings to public schools in this state if the affiliation between the educational program and the treatment facility is disclosed;
(B) providing counseling services to a public school in this state in an emergency or crisis situation if the services are provided in response to a specific request by a school; provided that, under no circumstances may a student be referred to the treatment facility offering the services; or
(C) entering into a contract under Section 464.020 with the board of trustees of a school district with a disciplinary alternative education program, or with the board's designee, for the provision of chemical dependency treatment services;
(3) provide to an entity of state or local government, on a part-time or full-time basis, the mental health or chemical dependency services of any of its employees, agents, or contractors who make or are in a position to make referrals unless:
(A) the treatment facility discloses to the governing authority of the entity:
(i) the employee's, agent's, or contractor's relationship to the facility; and
(ii) the fact that the employee, agent, or contractor might make a referral, if permitted, to the facility; and
(B) the employee, agent, or contractor makes a referral only if: (i) the treatment facility obtains the governing authority's authorization in writing for the employee, agent, or contractor to make the referrals; and
(ii) the employee, agent, or contractor discloses to the prospective patient the employee's, agent's, or contractor's relationship to the facility at initial contact; or
(4) in relation to intervention and assessment services, contract with, offer to remunerate, or remunerate a person who operates an intervention and assessment service that makes referrals to a treatment facility for inpatient treatment of mental illness or chemical dependency unless the intervention and assessment service is:
(A) operated by a community mental health and mental retardation center funded by the Texas Department of Mental Health and Mental Retardation;
(B) operated by a county or regional medical society; (C) a qualified mental health referral service as defined by Section 164.007; or
(D) owned and operated by a nonprofit or not-for-profit organization offering counseling concerning family violence, help for runaway children, or rape.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1112, § 3, eff. June 18, 1999; Acts 2003, 78th Leg., ch. 1055, § 28, eff. June 20, 2003.
§ 164.007. QUALIFIED MENTAL HEALTH REFERRAL SERVICE: DEFINITION AND STANDARDS. (a) A qualified mental health referral service means a service that conforms to all of the following standards:
(1) the referral service does not exclude as a participant in the referral service an individual who meets the qualifications for participation and qualifications for participation cannot be based in whole or in part on an individual's or entity's affiliation or nonaffiliation with other participants in the referral service;
(2) a payment the participant makes to the referral service is assessed equally against and collected equally from all participants, and is only based on the cost of operating the referral service and not on the volume or value of any referrals to or business otherwise generated by the participants of the referral service;
(3) the referral service imposes no requirements on the manner in which the participant provides services to a referred person, except that the referral service may require that the participant charge the person referred at the same rate as it charges other persons not referred by the referral service, or that these services be furnished free of charge or at a reduced charge;
(4) a referral made to a mental health professional or chemical dependency treatment facility is made only in accordance with Subdivision (1) and the referral service does not make referrals to mental health facilities other than facilities maintained or operated by the Texas Department of Mental Health and Mental Retardation, community mental health and mental retardation centers, or other political subdivisions, provided that a physician may make a referral directly to any mental health facility;
(5) the referral service is staffed by appropriately licensed and trained mental health professionals and a person who makes assessments for the need for treatment of mental illness or chemical dependency is a mental health professional as defined by this chapter;
(6) in response to each inquiry or after personal assessment, the referral service makes referrals, on a clinically appropriate, rotational basis, to at least three mental health professionals or chemical dependency treatment facilities whose practice addresses or facilities are located in the county of residence of the person seeking the referral or assessment, but if there are not three providers in the inquirer's county of residence, the referral service may include additional providers from other counties nearest the inquirer's county of residence;
(7) no information that identifies the person seeking a referral, such as name, address, or telephone number, is used, maintained, distributed, or provided for a purpose other than making the requested referral or for administrative functions necessary to operating the referral service;
(8) the referral service makes the following disclosures to each person seeking a referral:
(A) the manner in which the referral service selects the group of providers participating in the referral service;
(B) whether the provider participant has paid a fee to the referral service;
(C) the manner in which the referral service selects a particular provider from its list of provider participants to which to make a referral;
(D) the nature of the relationship or any affiliation between the referral service and the group of provider participants to whom it could make a referral; and
(E) the nature of any restriction that would exclude a provider from continuing as a provider participant;
(9) the referral service maintains each disclosure in a written record certifying that the disclosure has been made and the record certifying that the disclosure has been made is signed by either the person seeking a referral or by the person making the disclosure on behalf of the referral service; and
(10) if the referral service refers callers to a 1-900 telephone number or another telephone number that requires the payment of a toll or fee payable to or collected by the referral service, the referral service discloses the per minute charge.
(b) A qualified mental health referral service may not limit participation by a person for a reason other than:
(1) failure to have a current, valid license without limitation to practice in this state;
(2) failure to maintain professional liability insurance while participating in the service;
(3) a decision by a peer review committee that the person has failed to meet prescribed standards or has not acted in a professional or ethical manner;
(4) termination of the contract between the participant and the qualified mental health referral service by either party under the terms of the contract; or
(5) significant dissatisfaction of consumers that is documented and verifiable.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.008. OPERATING AN INTERVENTION AND ASSESSMENT SERVICE. A treatment facility may not own, operate, manage, or control an intervention and assessment service that makes referrals to a treatment facility for inpatient treatment of mental illness or chemical dependency unless the intervention and assessment service:
(1) is a qualified mental health referral service under Section 164.007; (2) discloses in all advertising the relationship between the treatment facility and the intervention and assessment service; and
(3) discloses to each person contacting the service, at the time of initial contact, the relationship between the treatment facility and the intervention and assessment service.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.009. DISCLOSURES AND REPRESENTATIONS. (a) A treatment facility may not admit a patient to its facilities without fully disclosing to the patient or, if the patient is a minor, the patient's parent, managing conservator, or guardian, in, if possible, the primary language of the patient, managing conservator, or guardian, as the case may be, the following information in writing before admission:
(1) the treatment facility's estimated average daily charge for inpatient treatment with an explanation that the patient may be billed separately for services provided by mental health professionals;
(2) the name of the attending physician, if the treatment facility is a mental health facility, or the name of the attending mental health professional, if the facility is a chemical dependency facility; and
(3) the current "patient's bill of rights" as adopted by the Texas Department of Mental Health and Mental Retardation, the Texas Commission on Alcohol and Drug Abuse, or the Texas Department of Health that sets out restrictions to the patient's freedom that may be imposed on the patient during the patient's stay in a treatment facility.
(b) A treatment facility may not misrepresent to a patient or the parent, guardian, managing conservator, or spouse of a patient, the availability or amount of insurance coverage available to the prospective patient or the amount and percentage of a charge for which the patient will be responsible.
(c) A treatment facility may not represent to a patient who requests to leave a treatment facility against medical advice that:
(1) the patient will be subject to an involuntary commitment proceeding or subsequent emergency detention unless that representation is made by a physician or on the written instruction of a physician who has evaluated the patient within 48 hours of the representation; or
(2) the patient's insurance company will refuse to pay all or any portion of the medical expenses previously incurred.
(d) A mental health facility may not represent or recommend that a prospective patient should be admitted for inpatient treatment unless the representation is made by a licensed physician or, subsequent to evaluation by a licensed physician, by a mental health professional.
(e) A chemical dependency facility may not represent or recommend that a prospective patient should be admitted to a facility for treatment unless and until:
(1) the prospective patient has been evaluated, in person, by a mental health professional; and
(2) the mental health professional determines that the patient meets the facility's admission standards.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.010. PROHIBITED ACTS. It is a violation of this chapter, in connection with the marketing of mental health services, for a person to:
(1) advertise, expressly or impliedly, the services of a treatment facility through the use of:
(A) promises of cure or guarantees of treatment results that cannot be substantiated; or
(B) any unsubstantiated claims; (2) advertise, expressly or impliedly, the availability of intervention and assessment services unless and until the services are available and are provided by mental health professionals licensed or certified to provide the particular service;
(3) fail to disclose before soliciting a referral source or prospective patient to induce a person to use the services of the treatment facility an affiliation between a treatment facility and its soliciting agents, employees, or contractors;
(4) obtain information considered confidential by state or federal law regarding a person for the purpose of soliciting that person to use the services of a treatment facility unless and until consent is obtained from the person or, in the case of a minor, the person's parent, managing conservator, or legal guardian or another person with authority to give that authorization; or
(5) represent that a referral service is a qualified mental health referral service unless and until the referral service complies with Section 164.007.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.011. INJUNCTION. (a) If it appears that a person is in violation of this chapter, the attorney general, a district attorney, or a county attorney may institute an action for injunctive relief to restrain the person from continuing the violation and for civil penalties of not less than $1,000 and not more than $25,000 per violation.
(b) A civil action filed under this section shall be filed in a district court in Travis County or in the county in which the defendant resides.
(c) The attorney general, a district attorney, or a county attorney may recover reasonable expenses incurred in obtaining injunctive relief, civil penalties, or both, under this section, including court costs, reasonable attorney fees, investigative costs, witness fees, and deposition expenses.
(d) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to that local government.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.012. PENALTIES. In addition to the penalties prescribed by this chapter, a violation of a provision of this chapter by an individual or treatment facility that is licensed by a state health care regulatory agency is subject to the same consequences as a violation of the licensing law applicable to the individual or treatment facility or of a rule adopted under that licensing law.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.013. DECEPTIVE TRADE PRACTICES. A person may bring suit under Subchapter E, Chapter 17, Business & Commerce Code, for a violation of this chapter, and a public or private right or remedy prescribed by that subchapter may be used to enforce this chapter.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993.
§ 164.014. RULE-MAKING AUTHORITY. The Texas Commission on Alcohol and Drug Abuse and Texas Board of Mental Health and Mental Retardation may adopt rules interpreting the provisions of this chapter relating to the activities of a chemical dependency facility or mental health facility under its jurisdiction.
Added by Acts 1993, 73rd Leg., ch. 705, § 2.01, eff. Sept. 1, 1993. § 165.001. LEGISLATIVE FINDING. The legislature finds that breast-feeding a baby is an important and basic act of nurture that must be encouraged in the interests of maternal and child health and family values. In compliance with the breast-feeding promotion program established under the federal Child Nutrition Act of 1966 (42 U.S.C. Section 1771 et seq.), the legislature recognizes breast-feeding as the best method of infant nutrition.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.002. RIGHT TO BREAST-FEED. A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.003. BUSINESS DESIGNATION AS "MOTHER-FRIENDLY". (a) A business may use the designation "mother-friendly" in its promotional materials if the business develops a policy supporting the practice of worksite breast-feeding that addresses the following:
(1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk;
(2) the provision of accessible locations allowing privacy; (3) access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast-pumping equipment; and
(4) access to hygienic storage alternatives in the workplace for the mother's breast milk.
(b) The business shall submit its breast-feeding policy to the department. The department shall maintain a list of "mother-friendly" businesses covered under this section and shall make the list available for public inspection.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.004. SERVICES PROVIDED BY STATE AGENCIES. Any state agency that administers a program providing maternal or child health services shall provide information that encourages breast-feeding to program participants who are pregnant women or mothers with infants.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
SUBCHAPTER B. DEMONSTRATION PROJECT
§ 165.031. LEGISLATIVE RECOGNITION. The legislature recognizes a mother's responsibility to both her job and her child when she returns to work and acknowledges that a woman's choice to breast-feed benefits the family, the employer, and society.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.032. DEMONSTRATION PROJECT. (a) The department shall establish a demonstration project in Travis County to provide access to worksite breast-feeding for department employees who are mothers with infants.
(b) The department shall administer the demonstration project and shall determine the benefits of, potential barriers to, and potential costs of implementing worksite breast-feeding support policies for state employees.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.033. BREAST-FEEDING POLICY. The department shall develop recommendations supporting the practice of worksite breast-feeding that address the following:
(1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk;
(2) the provision of accessible locations allowing privacy; (3) access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast-pumping equipment; and
(4) access to hygienic storage alternatives in the workplace for the mother's breast milk.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995.
§ 165.034. REPORT TO GOVERNOR AND LEGISLATURE. The department, if requested by the governor or any member of the legislature, shall submit a report on the demonstration project to the governor or that member of the legislature not later than February 1, 1997. The report must include:
(1) a description of the policies developed; (2) a description of the implementation of the policies in Travis County and any problems encountered;
(3) the extent of use of any breast-feeding or breast-pumping facilities by department employees;
(4) a survey to assess the level of satisfaction with the breast-feeding or breast-pumping facilities and the policies by users and their supervisors;
(5) the costs and benefits associated with the demonstration project; (6) a summary of issues raised by employees; and (7) a recommendation of any changes necessary for statewide implementation and strategies for implementing the policies in other state agencies.
Added by Acts 1995, 74th Leg., ch. 600, § 1, eff. Aug. 28, 1995. § 166.001. SHORT TITLE. This chapter may be cited as the Advance Directives Act.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.002. DEFINITIONS. In this chapter: (1) "Advance directive" means: (A) a directive, as that term is defined by Section 166.031; (B) an out-of-hospital DNR order, as that term is defined by Section 166.081; or
(C) a medical power of attorney under Subchapter D. (2) "Artificial nutrition and hydration" means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the stomach (gastrointestinal tract).
(3) "Attending physician" means a physician selected by or assigned to a patient who has primary responsibility for a patient's treatment and care.
(4) "Competent" means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
(5) "Declarant" means a person who has executed or issued a directive under this chapter.
(6) "Ethics or medical committee" means a committee established under Sections 161.031-161.033.
(7) "Health care or treatment decision" means consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or a procedure to maintain, diagnose, or treat an individual's physical or mental condition, including such a decision on behalf of a minor.
(8) "Incompetent" means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
(9) "Irreversible condition" means a condition, injury, or illness: (A) that may be treated but is never cured or eliminated; (B) that leaves a person unable to care for or make decisions for the person's own self; and
(C) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.
(10) "Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
(11) "Medical power of attorney" means a document delegating to an agent authority to make health care decisions executed or issued under Subchapter D.
(12) "Physician" means: (A) a physician licensed by the Texas State Board of Medical Examiners; or
(B) a properly credentialed physician who holds a commission in the uniformed services of the United States and who is serving on active duty in this state.
(13) "Terminal condition" means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care. A patient who has been admitted to a program under which the person receives hospice services provided by a home and community support services agency licensed under Chapter 142 is presumed to have a terminal condition for purposes of this chapter.
(14) "Witness" means a person who may serve as a witness under Section 166.003.
(15) "Cardiopulmonary resuscitation" means any medical intervention used to restore circulatory or respiratory function that has ceased.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1228, § 1, eff. June 20, 2003.
§ 166.003. WITNESSES. In any circumstance in which this chapter requires the execution of an advance directive or the issuance of a nonwritten advance directive to be witnessed:
(1) each witness must be a competent adult; and (2) at least one of the witnesses must be a person who is not: (A) a person designated by the declarant to make a treatment decision; (B) a person related to the declarant by blood or marriage; (C) a person entitled to any part of the declarant's estate after the declarant's death under a will or codicil executed by the declarant or by operation of law;
(D) the attending physician; (E) an employee of the attending physician; (F) an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care to the declarant or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or
(G) a person who, at the time the written advance directive is executed or, if the directive is a nonwritten directive issued under this chapter, at the time the nonwritten directive is issued, has a claim against any part of the declarant's estate after the declarant's death.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. (a) In this section, "health care provider" means:
(1) a hospital; (2) an institution licensed under Chapter 242, including a skilled nursing facility;
(3) a home and community support services agency; (4) a personal care facility; and (5) a special care facility. (b) A health care provider shall maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to provide or withhold in accordance with an advance directive.
(c) Except as provided by Subsection (g), the health care provider shall provide written notice to an individual of the written policies described by Subsection (b). The notice must be provided at the earlier of:
(1) the time the individual is admitted to receive services from the health care provider; or
(2) the time the health care provider begins providing care to the individual.
(d) If, at the time notice is to be provided under Subsection (c), the individual is incompetent or otherwise incapacitated and unable to receive the notice required by this section, the provider shall provide the required written notice, in the following order of preference, to:
(1) the individual's legal guardian; (2) a person responsible for the health care decisions of the individual; (3) the individual's spouse; (4) the individual's adult child; (5) the individual's parent; or (6) the person admitting the individual. (e) If Subsection (d) applies and except as provided by Subsection (f), if a health care provider is unable, after diligent search, to locate an individual listed by Subsection (d), the health care provider is not required to provide the notice.
(f) If an individual who was incompetent or otherwise incapacitated and unable to receive the notice required by this section at the time notice was to be provided under Subsection (c) later becomes able to receive the notice, the health care provider shall provide the written notice at the time the individual becomes able to receive the notice.
(g) This section does not apply to outpatient hospital services, including emergency services.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.005. ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED IN ANOTHER JURISDICTION. An advance directive or similar instrument validly executed in another state or jurisdiction shall be given the same effect as an advance directive validly executed under the law of this state. This section does not authorize the administration, withholding, or withdrawal of health care otherwise prohibited by the laws of this state.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.006. EFFECT OF ADVANCE DIRECTIVE ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has executed or issued an advance directive does not:
(1) restrict, inhibit, or impair in any manner the sale, procurement, or issuance of a life insurance policy to that person; or
(2) modify the terms of an existing life insurance policy. (b) Notwithstanding the terms of any life insurance policy, the fact that life-sustaining treatment is withheld or withdrawn from an insured qualified patient under this chapter does not legally impair or invalidate that person's life insurance policy and may not be a factor for the purpose of determining, under the life insurance policy, whether benefits are payable or the cause of death.
(c) The fact that a person has executed or issued or failed to execute or issue an advance directive may not be considered in any way in establishing insurance premiums.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.007. EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE REQUIRED. A physician, health facility, health care provider, insurer, or health care service plan may not require a person to execute or issue an advance directive as a condition for obtaining insurance for health care services or receiving health care services.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.008. CONFLICT BETWEEN ADVANCE DIRECTIVES. To the extent that a treatment decision or an advance directive validly executed or issued under this chapter conflicts with another treatment decision or an advance directive executed or issued under this chapter, the treatment decision made or instrument executed later in time controls.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.009. CERTAIN LIFE-SUSTAINING TREATMENT NOT REQUIRED. This chapter may not be construed to require the provision of life-sustaining treatment that cannot be provided to a patient without denying the same treatment to another patient.
Added by Acts 1999, 76th Leg., ch. 450, § 1.02, eff. Sept. 1, 1999.
§ 166.010. APPLICABILITY OF FEDERAL LAW RELATING TO CHILD ABUSE AND NEGLECT. This chapter is subject to applicable federal law and regulations relating to child abuse and neglect to the extent applicable to the state based on its receipt of federal funds.
Added by Acts 2003, 78th Leg., ch. 1228, § 2, eff. June 20, 2003.
SUBCHAPTER B. DIRECTIVE TO PHYSICIANS
§ 166.031. DEFINITIONS. In this subchapter: (1) "Directive" means an instruction made under Section 166.032, 166.034, or 166.035 to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition.
(2) "Qualified patient" means a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 208, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 107, § 5.04, eff. Aug. 30, 1993. Renumbered from § 672.002 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.032. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time execute a written directive.
(b) The declarant must sign the directive in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the directive.
(c) A declarant may include in a directive directions other than those provided by Section 166.033 and may designate in a directive a person to make a treatment decision for the declarant in the event the declarant becomes incompetent or otherwise mentally or physically incapable of communication.
(d) A declarant shall notify the attending physician of the existence of a written directive. If the declarant is incompetent or otherwise mentally or physically incapable of communication, another person may notify the attending physician of the existence of the written directive. The attending physician shall make the directive a part of the declarant's medical record.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 209, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 291, § 1, eff. Jan. 1, 1998. Renumbered from § 672.003 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.033. FORM OF WRITTEN DIRECTIVE. A written directive may be in the following form:
DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES
Instructions for completing this document: This is an important legal document known as an Advance Directive. It is designed to help you communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury. These wishes are usually based on personal values. In particular, you may want to consider what burdens or hardships of treatment you would be willing to accept for a particular amount of benefit obtained if you were seriously ill.
You are encouraged to discuss your values and wishes with your family or chosen spokesperson, as well as your physician. Your physician, other health care provider, or medical institution may provide you with various resources to assist you in completing your advance directive. Brief definitions are listed below and may aid you in your discussions and advance planning. Initial the treatment choices that best reflect your personal preferences. Provide a copy of your directive to your physician, usual hospital, and family or spokesperson. Consider a periodic review of this document. By periodic review, you can best assure that the directive reflects your preferences.
In addition to this advance directive, Texas law provides for two other types of directives that can be important during a serious illness. These are the Medical Power of Attorney and the Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss these with your physician, family, hospital representative, or other advisers. You may also wish to complete a directive related to the donation of organs and tissues.
DIRECTIVE
I, __________, recognize that the best health care is based upon a partnership of trust and communication with my physician. My physician and I will make health care decisions together as long as I am of sound mind and able to make my wishes known. If there comes a time that I am unable to make medical decisions about myself because of illness or injury, I direct that the following treatment preferences be honored:
If, in the judgment of my physician, I am suffering with a terminal condition from which I am expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care:__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR __________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
If, in the judgment of my physician, I am suffering with an irreversible condition so that I cannot care for myself or make decisions for myself and am expected to die without life-sustaining treatment provided in accordance with prevailing standards of care:__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR __________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
Additional requests: (After discussion with your physician, you may wish to consider listing particular treatments in this space that you do or do not want in specific circumstances, such as artificial nutrition and fluids, intravenous antibiotics, etc. Be sure to state whether you do or do not want the particular treatment.)________________________________________________________________ ________________________________________________________________ ________________________________________________________________
After signing this directive, if my representative or I elect hospice care, I understand and agree that only those treatments needed to keep me comfortable would be provided and I would not be given available life-sustaining treatments.
If I do not have a Medical Power of Attorney, and I am unable to make my wishes known, I designate the following person(s) to make treatment decisions with my physician compatible with my personal values:1. __________ 2. __________
(If a Medical Power of Attorney has been executed, then an agent already has been named and you should not list additional names in this document.)
If the above persons are not available, or if I have not designated a spokesperson, I understand that a spokesperson will be chosen for me following standards specified in the laws of Texas. If, in the judgment of my physician, my death is imminent within minutes to hours, even with the use of all available medical treatment provided within the prevailing standard of care, I acknowledge that all treatments may be withheld or removed except those needed to maintain my comfort. I understand that under Texas law this directive has no effect if I have been diagnosed as pregnant. This directive will remain in effect until I revoke it. No other person may do so.
Signed__________ Date__________ City, County, State of Residence __________ Two competent adult witnesses must sign below, acknowledging the signature of the declarant. The witness designated as Witness 1 may not be a person designated to make a treatment decision for the patient and may not be related to the patient by blood or marriage. This witness may not be entitled to any part of the estate and may not have a claim against the estate of the patient. This witness may not be the attending physician or an employee of the attending physician. If this witness is an employee of a health care facility in which the patient is being cared for, this witness may not be involved in providing direct patient care to the patient. This witness may not be an officer, director, partner, or business office employee of a health care facility in which the patient is being cared for or of any parent organization of the health care facility.
Witness 1 __________ Witness 2 __________ Definitions: "Artificial nutrition and hydration" means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the stomach (gastrointestinal tract).
"Irreversible condition" means a condition, injury, or illness: (1) that may be treated, but is never cured or eliminated; (2) that leaves a person unable to care for or make decisions for the person's own self; and
(3) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.
Explanation: Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer's dementia may be considered irreversible early on. There is no cure, but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments. Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die. You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome. This is a very personal decision that you may wish to discuss with your physician, family, or other important persons in your life.
"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial hydration and nutrition. The term does not include the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
"Terminal condition" means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.
Explanation: Many serious illnesses may be considered irreversible early in the course of the illness, but they may not be considered terminal until the disease is fairly advanced. In thinking about terminal illness and its treatment, you again may wish to consider the relative benefits and burdens of treatment and discuss your wishes with your physician, family, or other important persons in your life.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 209, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 291, § 2, eff. Jan. 1, 1998. Renumbered from § 672.004 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.034. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified patient who is an adult may issue a directive by a nonwritten means of communication.
(b) A declarant must issue the nonwritten directive in the presence of the attending physician and two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2).
(c) The physician shall make the fact of the existence of the directive a part of the declarant's medical record, and the names of the witnesses shall be entered in the medical record.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.005 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.035. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may execute a directive on behalf of a qualified patient who is younger than 18 years of age:
(1) the patient's spouse, if the spouse is an adult; (2) the patient's parents; or (3) the patient's legal guardian.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.006 by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF SPECIFIC FORM PROHIBITED. (a) A written directive executed under Section 166.033 or 166.035 is effective without regard to whether the document has been notarized.
(b) A physician, health care facility, or health care professional may not require that:
(1) a directive be notarized; or (2) a person use a form provided by the physician, health care facility, or health care professional.
Added by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.037. PATIENT DESIRE SUPERSEDES DIRECTIVE. The desire of a qualified patient, including a qualified patient younger than 18 years of age, supersedes the effect of a directive.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.007 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.038. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section applies when an adult qualified patient has executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication.
(b) If the adult qualified patient has designated a person to make a treatment decision as authorized by Section 166.032(c), the attending physician and the designated person may make a treatment decision in accordance with the declarant's directions.
(c) If the adult qualified patient has not designated a person to make a treatment decision, the attending physician shall comply with the directive unless the physician believes that the directive does not reflect the patient's present desire.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from 672.008 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.
(b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment:
(1) the patient's spouse; (2) the patient's reasonably available adult children; (3) the patient's parents; or (4) the patient's nearest living relative. (c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.
(d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician.
(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.
(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.
(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Section 875, Texas Probate Code. The court may waive applicable fees in that proceeding.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 291, § 3, eff. Jan. 1, 1998. Renumbered from § 672.009 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.040. PATIENT CERTIFICATION AND PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending physician who has been notified of the existence of a directive shall provide for the declarant's certification as a qualified patient on diagnosis of a terminal or irreversible condition.
(b) Before withholding or withdrawing life-sustaining treatment from a qualified patient under this subchapter, the attending physician must determine that the steps proposed to be taken are in accord with this subchapter and the patient's existing desires.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 14, § 6.01, eff. Nov. 12, 1991. Renumbered from § 672.010 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.041. DURATION OF DIRECTIVE. A directive is effective until it is revoked as prescribed by Section 166.042.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.011 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.042. REVOCATION OF DIRECTIVE. (a) A declarant may revoke a directive at any time without regard to the declarant's mental state or competency. A directive may be revoked by:
(1) the declarant or someone in the declarant's presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive;
(2) the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive; or
(3) the declarant orally stating the declarant's intent to revoke the directive.
(b) A written revocation executed as prescribed by Subsection (a)(2) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of its existence or mails the revocation to the attending physician. The attending physician or the physician's designee shall record in the patient's medical record the time and date when the physician received notice of the written revocation and shall enter the word "VOID" on each page of the copy of the directive in the patient's medical record.
(c) An oral revocation issued as prescribed by Subsection (a)(3) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of the revocation. The attending physician or the physician's designee shall record in the patient's medical record the time, date, and place of the revocation, and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designees shall also enter the word "VOID" on each page of the copy of the directive in the patient's medical record.
(d) Except as otherwise provided by this subchapter, a person is not civilly or criminally liable for failure to act on a revocation made under this section unless the person has actual knowledge of the revocation.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.012 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.043. REEXECUTION OF DIRECTIVE. A declarant may at any time reexecute a directive in accordance with the procedures prescribed by Section 166.032, including reexecution after the declarant is diagnosed as having a terminal or irreversible condition.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.013 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.044. LIMITATION OF LIABILITY FOR WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A physician or health care facility that causes life-sustaining treatment to be withheld or withdrawn from a qualified patient in accordance with this subchapter is not civilly liable for that action unless the physician or health care facility fails to exercise reasonable care when applying the patient's advance directive.
(b) A health professional, acting under the direction of a physician, who participates in withholding or withdrawing life-sustaining treatment from a qualified patient in accordance with this subchapter is not civilly liable for that action unless the health professional fails to exercise reasonable care when applying the patient's advance directive.
(c) A physician, or a health professional acting under the direction of a physician, who participates in withholding or withdrawing life-sustaining treatment from a qualified patient in accordance with this subchapter is not criminally liable or guilty of unprofessional conduct as a result of that action unless the physician or health professional fails to exercise reasonable care when applying the patient's advance directive.
(d) The standard of care that a physician, health care facility, or health care professional shall exercise under this section is that degree of care that a physician, health care facility, or health care professional, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstances in the same or a similar community.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.015 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.045. LIABILITY FOR FAILURE TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility, or health care professional who has no knowledge of a directive is not civilly or criminally liable for failing to act in accordance with the directive.
(b) A physician, or a health professional acting under the direction of a physician, is subject to review and disciplinary action by the appropriate licensing board for failing to effectuate a qualified patient's directive in violation of this subchapter or other laws of this state. This subsection does not limit remedies available under other laws of this state.
(c) If an attending physician refuses to comply with a directive or treatment decision and does not wish to follow the procedure established under Section 166.046, life-sustaining treatment shall be provided to the patient, but only until a reasonable opportunity has been afforded for the transfer of the patient to another physician or health care facility willing to comply with the directive or treatment decision.
(d) A physician, health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the person's appropriate licensing board if the person has complied with the procedures outlined in Section 166.046.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.016 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR TREATMENT DECISION. (a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;
(2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;
(3) at the time of being so informed, shall be provided: (A) a copy of the appropriate statement set forth in Section 166.052; and
(B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and
(4) is entitled to: (A) attend the meeting; and (B) receive a written explanation of the decision reached during the review process.
(c) The written explanation required by Subsection (b)(2)(B) must be included in the patient's medical record.
(d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to:
(1) another physician; (2) an alternative care setting within that facility; or (3) another facility. (e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).
(e-1) If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.
(f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.
(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.
(h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.
Added by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1228, § 3, 4, eff. June 20, 2003.
§ 166.047. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an offense under Section 22.08, Penal Code, by withholding or withdrawing life-sustaining treatment from a qualified patient in accordance with this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.017 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.048. CRIMINAL PENALTY; PROSECUTION. (a) A person commits an offense if the person intentionally conceals, cancels, defaces, obliterates, or damages another person's directive without that person's consent. An offense under this subsection is a Class A misdemeanor.
(b) A person is subject to prosecution for criminal homicide under Chapter 19, Penal Code, if the person, with the intent to cause life-sustaining treatment to be withheld or withdrawn from another person contrary to the other person's desires, falsifies or forges a directive or intentionally conceals or withholds personal knowledge of a revocation and thereby directly causes life-sustaining treatment to be withheld or withdrawn from the other person with the result that the other person's death is hastened.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.018 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.049. PREGNANT PATIENTS. A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.019 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.050. MERCY KILLING NOT CONDONED. This subchapter does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying as provided by this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.020 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This subchapter does not impair or supersede any legal right or responsibility a person may have to effect the withholding or withdrawal of life-sustaining treatment in a lawful manner, provided that if an attending physician or health care facility is unwilling to honor a patient's advance directive or a treatment decision to provide life-sustaining treatment, life-sustaining treatment is required to be provided the patient, but only until a reasonable opportunity has been afforded for transfer of the patient to another physician or health care facility willing to comply with the advance directive or treatment decision.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Renumbered from § 672.021 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
§ 166.052. STATEMENTS EXPLAINING PATIENT'S RIGHT TO TRANSFER. (a) In cases in which the attending physician refuses to honor an advance directive or treatment decision requesting the provision of life-sustaining treatment, the statement required by Section 166.046(b)(2)(A) shall be in substantially the following form:
You have been given this information because you have requested life-sustaining treatment,* which the attending physician believes is not appropriate. This information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166 of the Texas Health and Safety Code.
When There Is A Disagreement About Medical Treatment: The Physician Recommends Against Life-Sustaining Treatment That You Wish To Continue
When an attending physician refuses to comply with an advance directive or other request for life-sustaining treatment because of the physician's judgment that the treatment would be inappropriate, the case will be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.
You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.
You are entitled to receive a written explanation of the decision reached during the review process.
If after this review process both the attending physician and the ethics or medical committee conclude that life-sustaining treatment is inappropriate and yet you continue to request such treatment, then the following procedure will occur:
1. The physician, with the help of the health care facility, will assist you in trying to find a physician and facility willing to provide the requested treatment.
2. You are being given a list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Texas Health Care Information Council. You may wish to contact providers or referral groups on the list or others of your choice to get help in arranging a transfer.
3. The patient will continue to be given life-sustaining treatment until he or she can be transferred to a willing provider for up to 10 days from the time you were given the committee's written decision that life-sustaining treatment is not appropriate.
4. If a transfer can be arranged, the patient will be responsible for the costs of the transfer.
5. If a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn unless a court of law has granted an extension.
6. You may ask the appropriate district or county court to extend the 10-day period if the court finds that there is a reasonable expectation that a physician or health care facility willing to provide life-sustaining treatment will be found if the extension is granted.
*"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
(b) In cases in which the attending physician refuses to comply with an advance directive or treatment decision requesting the withholding or withdrawal of life-sustaining treatment, the statement required by Section 166.046(b)(3)(A) shall be in substantially the following form:
You have been given this information because you have requested the withdrawal or withholding of life-sustaining treatment* and the attending physician refuses to comply with that request. The information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166 of the Texas Health and Safety Code.
When There Is A Disagreement About Medical Treatment: The Physician Recommends Life-Sustaining Treatment That You Wish To Stop
When an attending physician refuses to comply with an advance directive or other request for withdrawal or withholding of life-sustaining treatment for any reason, the case will be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.
You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.
You are entitled to receive a written explanation of the decision reached during the review process.
If you or the attending physician do not agree with the decision reached during the review process, and the attending physician still refuses to comply with your request to withhold or withdraw life-sustaining treatment, then the following procedure will occur:
1. The physician, with the help of the health care facility, will assist you in trying to find a physician and facility willing to withdraw or withhold the life-sustaining treatment.
2. You are being given a list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Texas Health Care Information Council. You may wish to contact providers or referral groups on the list or others of your choice to get help in arranging a transfer.
*"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
(c) An attending physician or health care facility may, if it chooses, include any additional information concerning the physician's or facility's policy, perspective, experience, or review procedure.
Added by Acts 2003, 78th Leg., ch. 1228, § 5, eff. June 20, 2003.
§ 166.053. REGISTRY TO ASSIST TRANSFERS. (a) The Texas Health Care Information Council shall maintain a registry listing the identity of and contact information for health care providers and referral groups, situated inside and outside this state, that have voluntarily notified the council they may consider accepting or may assist in locating a provider willing to accept transfer of a patient under Section 166.045 or 166.046.
(b) The listing of a provider or referral group in the registry described in this section does not obligate the provider or group to accept transfer of or provide services to any particular patient.
(c) The Texas Health Care Information Council shall post the current registry list on its website in a form appropriate for easy comprehension by patients and persons responsible for the health care decisions of patients and shall provide a clearly identifiable link from its home page to the registry page. The list shall separately indicate those providers and groups that have indicated their interest in assisting the transfer of:
(1) those patients on whose behalf life-sustaining treatment is being sought;
(2) those patients on whose behalf the withholding or withdrawal of life-sustaining treatment is being sought; and
(3) patients described in both Subdivisions (1) and (2). (d) The registry list described in this section shall include the following disclaimer:
"This registry lists providers and groups that have indicated to the Texas Health Care Information Council their interest in assisting the transfer of patients in the circumstances described, and is provided for information purposes only. Neither the Texas Health Care Information Council nor the State of Texas endorses or assumes any responsibility for any representation, claim, or act of the listed providers or groups."
Added by Acts 2003, 78th Leg., ch. 1228, § 5, eff. June 20, 2003.
SUBCHAPTER C. OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS
§ 166.081. DEFINITIONS. In this subchapter: (1) Repealed by Acts 2003, 78th Leg., ch. 1228, § 8. (2) "DNR identification device" means an identification device specified by the board under Section 166.101 that is worn for the purpose of identifying a person who has executed or issued an out-of-hospital DNR order or on whose behalf an out-of-hospital DNR order has been executed or issued under this subchapter.
(3) "Emergency medical services" has the meaning assigned by Section 773.003.
(4) "Emergency medical services personnel" has the meaning assigned by Section 773.003.
(5) "Health care professionals" means physicians, physician assistants, nurses, and emergency medical services personnel and, unless the context requires otherwise, includes hospital emergency personnel.
(6) "Out-of-hospital DNR order": (A) means a legally binding out-of-hospital do-not-resuscitate order, in the form specified by the board under Section 166.083, prepared and signed by the attending physician of a person, that documents the instructions of a person or the person's legally authorized representative and directs health care professionals acting in an out-of-hospital setting not to initiate or continue the following life-sustaining treatment:
(i) cardiopulmonary resuscitation; (ii) advanced airway management; (iii) artificial ventilation; (iv) defibrillation; (v) transcutaneous cardiac pacing; and (vi) other life-sustaining treatment specified by the board under Section 166.101(a); and
(B) does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort care or to alleviate pain or to provide water or nutrition.
(7) "Out-of-hospital setting" means a location in which health care professionals are called for assistance, including long-term care facilities, in-patient hospice facilities, private homes, hospital outpatient or emergency departments, physician's offices, and vehicles during transport.
(8) "Proxy" means a person designated and authorized by a directive executed or issued in accordance with Subchapter B to make a treatment decision for another person in the event the other person becomes incompetent or otherwise mentally or physically incapable of communication.
(9) "Qualified relatives" means those persons authorized to execute or issue an out-of-hospital DNR order on behalf of a person who is incompetent or otherwise mentally or physically incapable of communication under Section 166.088.
(10) "Statewide out-of-hospital DNR protocol" means a set of statewide standardized procedures adopted by the board under Section 166.101(a) for withholding cardiopulmonary resuscitation and certain other life-sustaining treatment by health care professionals acting in out-of-hospital settings.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.001 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1228, § 8, eff. June 20, 2003.
§ 166.082. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO PHYSICIANS. (a) A competent person may at any time execute a written out-of-hospital DNR order directing health care professionals acting in an out-of-hospital setting to withhold cardiopulmonary resuscitation and certain other life-sustaining treatment designated by the board.
(b) The declarant must sign the out-of-hospital DNR order in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the order. The attending physician of the declarant must sign the order and shall make the fact of the existence of the order and the reasons for execution of the order a part of the declarant's medical record.
(c) If the person is incompetent but previously executed or issued a directive to physicians in accordance with Subchapter B, the physician may rely on the directive as the person's instructions to issue an out-of-hospital DNR order and shall place a copy of the directive in the person's medical record. The physician shall sign the order in lieu of the person signing under Subsection (b).
(d) If the person is incompetent but previously executed or issued a directive to physicians in accordance with Subchapter B designating a proxy, the proxy may make any decisions required of the designating person as to an out-of-hospital DNR order and shall sign the order in lieu of the person signing under Subsection (b).
(e) If the person is now incompetent but previously executed or issued a medical power of attorney designating an agent, the agent may make any decisions required of the designating person as to an out-of-hospital DNR order and shall sign the order in lieu of the person signing under Subsection (b).
(f) The board, on the recommendation of the department, shall by rule adopt procedures for the disposition and maintenance of records of an original out-of-hospital DNR order and any copies of the order.
(g) An out-of-hospital DNR order is effective on its execution.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.002 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.083. FORM OF OUT-OF-HOSPITAL DNR ORDER. (a) A written out-of-hospital DNR order shall be in the standard form specified by board rule as recommended by the department.
(b) The standard form of an out-of-hospital DNR order specified by the board must, at a minimum, contain the following:
(1) a distinctive single-page format that readily identifies the document as an out-of-hospital DNR order;
(2) a title that readily identifies the document as an out-of-hospital DNR order;
(3) the printed or typed name of the person; (4) a statement that the physician signing the document is the attending physician of the person and that the physician is directing health care professionals acting in out-of-hospital settings, including a hospital emergency department, not to initiate or continue certain life-sustaining treatment on behalf of the person, and a listing of those procedures not to be initiated or continued;
(5) a statement that the person understands that the person may revoke the out-of-hospital DNR order at any time by destroying the order and removing the DNR identification device, if any, or by communicating to health care professionals at the scene the person's desire to revoke the out-of-hospital DNR order;
(6) places for the printed names and signatures of the witnesses and attending physician of the person and the medical license number of the attending physician;
(7) a separate section for execution of the document by the legal guardian of the person, the person's proxy, an agent of the person having a medical power of attorney, or the attending physician attesting to the issuance of an out-of-hospital DNR order by nonwritten means of communication or acting in accordance with a previously executed or previously issued directive to physicians under Section 166.082(c) that includes the following:
(A) a statement that the legal guardian, the proxy, the agent, the person by nonwritten means of communication, or the physician directs that each listed life-sustaining treatment should not be initiated or continued in behalf of the person; and
(B) places for the printed names and signatures of the witnesses and, as applicable, the legal guardian, proxy, agent, or physician;
(8) a separate section for execution of the document by at least one qualified relative of the person when the person does not have a legal guardian, proxy, or agent having a medical power of attorney and is incompetent or otherwise mentally or physically incapable of communication, including:
(A) a statement that the relative of the person is qualified to make a treatment decision to withhold cardiopulmonary resuscitation and certain other designated life-sustaining treatment under Section 166.088 and, based on the known desires of the person or a determination of the best interest of the person, directs that each listed life-sustaining treatment should not be initiated or continued in behalf of the person; and
(B) places for the printed names and signatures of the witnesses and qualified relative of the person;
(9) a place for entry of the date of execution of the document; (10) a statement that the document is in effect on the date of its execution and remains in effect until the death of the person or until the document is revoked;
(11) a statement that the document must accompany the person during transport;
(12) a statement regarding the proper disposition of the document or copies of the document, as the board determines appropriate; and
(13) a statement at the bottom of the document, with places for the signature of each person executing the document, that the document has been properly completed.
(c) The board may, by rule and as recommended by the department, modify the standard form of the out-of-hospital DNR order described by Subsection (b) in order to accomplish the purposes of this subchapter.
(d) A photocopy or other complete facsimile of the original written out-of-hospital DNR order executed under this subchapter may be used for any purpose for which the original written order may be used under this subchapter.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.003 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.084. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is an adult may issue an out-of-hospital DNR order by nonwritten communication.
(b) A declarant must issue the nonwritten out-of-hospital DNR order in the presence of the attending physician and two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2).
(c) The attending physician and witnesses shall sign the out-of-hospital DNR order in the place of the document provided by Section 166.083(b)(7) and the attending physician shall sign the document in the place required by Section 166.083(b)(13). The physician shall make the fact of the existence of the out-of-hospital DNR order a part of the declarant's medical record and the names of the witnesses shall be entered in the medical record.
(d) An out-of-hospital DNR order issued in the manner provided by this section is valid and shall be honored by responding health care professionals as if executed in the manner provided by Section 166.082.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.004 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.085. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF OF A MINOR. (a) The following persons may execute an out-of-hospital DNR order on behalf of a minor:
(1) the minor's parents; (2) the minor's legal guardian; or (3) the minor's managing conservator. (b) A person listed under Subsection (a) may not execute an out-of-hospital DNR order unless the minor has been diagnosed by a physician as suffering from a terminal or irreversible condition.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.005 by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1228, § 6, eff. June 20, 2003.
§ 166.086. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person, including a competent minor, supersedes the effect of an out-of-hospital DNR order executed or issued by or on behalf of the person when the desire is communicated to responding health care professionals as provided by this subchapter.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.006 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section applies when a person 18 years of age or older has executed or issued an out-of-hospital DNR order and subsequently becomes incompetent or otherwise mentally or physically incapable of communication.
(b) If the adult person has designated a person to make a treatment decision as authorized by Section 166.032(c), the attending physician and the designated person shall comply with the out-of-hospital DNR order.
(c) If the adult person has not designated a person to make a treatment decision as authorized by Section 166.032(c), the attending physician shall comply with the out-of-hospital DNR order unless the physician believes that the order does not reflect the person's present desire.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.007 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) If an adult person has not executed or issued an out-of-hospital DNR order and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the person's legal guardian, proxy, or agent having a medical power of attorney may execute an out-of-hospital DNR order on behalf of the person.
(b) If the person does not have a legal guardian, proxy, or agent under a medical power of attorney, the attending physician and at least one qualified relative from a category listed by Section 166.039(b), subject to the priority established under that subsection, may execute an out-of-hospital DNR order in the same manner as a treatment decision made under Section 166.039(b).
(c) A decision to execute an out-of-hospital DNR order made under Subsection (a) or (b) must be based on knowledge of what the person would desire, if known.
(d) An out-of-hospital DNR order executed under Subsection (b) must be made in the presence of at least two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2).
(e) The fact that an adult person has not executed or issued an out-of-hospital DNR order does not create a presumption that the person does not want a treatment decision made to withhold cardiopulmonary resuscitation and certain other designated life-sustaining treatment designated by the board.
(f) If there is not a qualified relative available to act for the person under Subsection (b), an out-of-hospital DNR order must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of the ethics or medical committee of the health care facility in which the person is a patient.
(g) A person listed in Section 166.039(b) who wishes to challenge a decision made under this section must apply for temporary guardianship under Section 875, Texas Probate Code. The court may waive applicable fees in that proceeding.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.008 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.089. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. (a) When responding to a call for assistance, health care professionals shall honor an out-of-hospital DNR order in accordance with the statewide out-of-hospital DNR protocol and, where applicable, locally adopted out-of-hospital DNR protocols not in conflict with the statewide protocol if:
(1) the responding health care professionals discover an executed or issued out-of-hospital DNR order form on their arrival at the scene; and
(2) the responding health care professionals comply with this section. (b) If the person is wearing a DNR identification device, the responding health care professionals must comply with Section 166.090.
(c) The responding health care professionals must establish the identity of the person as the person who executed or issued the out-of-hospital DNR order or for whom the out-of-hospital DNR order was executed or issued.
(d) The responding health care professionals must determine that the out-of-hospital DNR order form appears to be valid in that it includes:
(1) written responses in the places designated on the form for the names, signatures, and other information required of persons executing or issuing, or witnessing the execution or issuance of, the order;
(2) a date in the place designated on the form for the date the order was executed or issued; and
(3) the signature of the declarant or persons executing or issuing the order and the attending physician in the appropriate places designated on the form for indicating that the order form has been properly completed.
(e) If the conditions prescribed by Subsections (a) through (d) are not determined to apply by the responding health care professionals at the scene, the out-of-hospital DNR order may not be honored and life-sustaining procedures otherwise required by law or local emergency medical services protocols shall be initiated or continued. Health care professionals acting in out-of-hospital settings are not required to accept or interpret an out-of-hospital DNR order that does not meet the requirements of this subchapter.
(f) The out-of-hospital DNR order form or a copy of the form, when available, must accompany the person during transport.
(g) A record shall be made and maintained of the circumstances of each emergency medical services response in which an out-of-hospital DNR order or DNR identification device is encountered, in accordance with the statewide out-of-hospital DNR protocol and any applicable local out-of-hospital DNR protocol not in conflict with the statewide protocol.
(h) An out-of-hospital DNR order executed or issued and documented or evidenced in the manner prescribed by this subchapter is valid and shall be honored by responding health care professionals unless the person or persons found at the scene:
(1) identify themselves as the declarant or as the attending physician, legal guardian, qualified relative, or agent of the person having a medical power of attorney who executed or issued the out-of-hospital DNR order on behalf of the person; and
(2) request that cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board be initiated or continued.
(i) If the policies of a health care facility preclude compliance with the out-of-hospital DNR order of a person or an out-of-hospital DNR order issued by an attending physician on behalf of a person who is admitted to or a resident of the facility, or if the facility is unwilling to accept DNR identification devices as evidence of the existence of an out-of-hospital DNR order, that facility shall take all reasonable steps to notify the person or, if the person is incompetent, the person's guardian or the person or persons having authority to make health care treatment decisions on behalf of the person, of the facility's policy and shall take all reasonable steps to effect the transfer of the person to the person's home or to a facility where the provisions of this subchapter can be carried out.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.009 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.090. DNR IDENTIFICATION DEVICE. (a) A person who has a valid out-of-hospital DNR order under this subchapter may wear a DNR identification device around the neck or on the wrist as prescribed by board rule adopted under Section 166.101.
(b) The presence of a DNR identification device on the body of a person is conclusive evidence that the person has executed or issued a valid out-of-hospital DNR order or has a valid out-of-hospital DNR order executed or issued on the person's behalf. Responding health care professionals shall honor the DNR identification device as if a valid out-of-hospital DNR order form executed or issued by the person were found in the possession of the person.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.010 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.091. DURATION OF OUT-OF-HOSPITAL DNR ORDER. An out-of-hospital DNR order is effective until it is revoked as prescribed by Section 166.092.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.011 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.092. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. (a) A declarant may revoke an out-of-hospital DNR order at any time without regard to the declarant's mental state or competency. An order may be revoked by:
(1) the declarant or someone in the declarant's presence and at the declarant's direction destroying the order form and removing the DNR identification device, if any;
(2) a person who identifies himself or herself as the legal guardian, as a qualified relative, or as the agent of the declarant having a medical power of attorney who executed the out-of-hospital DNR order or another person in the person's presence and at the person's direction destroying the order form and removing the DNR identification device, if any;
(3) the declarant communicating the declarant's intent to revoke the order; or
(4) a person who identifies himself or herself as the legal guardian, a qualified relative, or the agent of the declarant having a medical power of attorney who executed the out-of-hospital DNR order orally stating the person's intent to revoke the order.
(b) An oral revocation under Subsection (a)(3) or (a)(4) takes effect only when the declarant or a person who identifies himself or herself as the legal guardian, a qualified relative, or the agent of the declarant having a medical power of attorney who executed the out-of-hospital DNR order communicates the intent to revoke the order to the responding health care professionals or the attending physician at the scene. The responding health care professionals shall record the time, date, and place of the revocation in accordance with the statewide out-of-hospital DNR protocol and rules adopted by the board and any applicable local out-of-hospital DNR protocol. The attending physician or the physician's designee shall record in the person's medical record the time, date, and place of the revocation and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designee shall also enter the word "VOID" on each page of the copy of the order in the person's medical record.
(c) Except as otherwise provided by this subchapter, a person is not civilly or criminally liable for failure to act on a revocation made under this section unless the person has actual knowledge of the revocation.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16 1995. Renumbered from § 674.012 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.093. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. A declarant may at any time reexecute or reissue an out-of-hospital DNR order in accordance with the procedures prescribed by Section 166.082, including reexecution or reissuance after the declarant is diagnosed as having a terminal or irreversible condition.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.013 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.094. LIMITATION ON LIABILITY FOR WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING PROCEDURES. (a) A health care professional or health care facility or entity that in good faith causes cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board to be withheld from a person in accordance with this subchapter is not civilly liable for that action.
(b) A health care professional or health care facility or entity that in good faith participates in withholding cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board from a person in accordance with this subchapter is not civilly liable for that action.
(c) A health care professional or health care facility or entity that in good faith participates in withholding cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board from a person in accordance with this subchapter is not criminally liable or guilty of unprofessional conduct as a result of that action.
(d) A health care professional or health care facility or entity that in good faith causes or participates in withholding cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board from a person in accordance with this subchapter and rules adopted under this subchapter is not in violation of any other licensing or regulatory laws or rules of this state and is not subject to any disciplinary action or sanction by any licensing or regulatory agency of this state as a result of that action.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.016 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.095. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care professional or health care facility or entity that has no actual knowledge of an out-of-hospital DNR order is not civilly or criminally liable for failing to act in accordance with the order.
(b) A health care professional or health care facility or entity is subject to review and disciplinary action by the appropriate licensing board for failing to effectuate an out-of-hospital DNR order. This subsection does not limit remedies available under other laws of this state.
(c) If an attending physician refuses to execute or comply with an out-of-hospital DNR order, the physician shall inform the person, the legal guardian or qualified relatives of the person, or the agent of the person having a medical power of attorney and, if the person or another authorized to act on behalf of the person so directs, shall make a reasonable effort to transfer the person to another physician who is willing to execute or comply with an out-of-hospital DNR order.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.017 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.096. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an offense under Section 22.08, Penal Code, by withholding cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board from a person in accordance with this subchapter.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.018 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.097. CRIMINAL PENALTY; PROSECUTION. (a) A person commits an offense if the person intentionally conceals, cancels, defaces, obliterates, or damages another person's out-of-hospital DNR order or DNR identification device without that person's consent or the consent of the person or persons authorized to execute or issue an out-of-hospital DNR order on behalf of the person under this subchapter. An offense under this subsection is a Class A misdemeanor.
(b) A person is subject to prosecution for criminal homicide under Chapter 19, Penal Code, if the person, with the intent to cause cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board to be withheld from another person contrary to the other person's desires, falsifies or forges an out-of-hospital DNR order or intentionally conceals or withholds personal knowledge of a revocation and thereby directly causes cardiopulmonary resuscitation and certain other life-sustaining treatment designated by the board to be withheld from the other person with the result that the other person's death is hastened.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.019 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.098. PREGNANT PERSONS. A person may not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board under this subchapter from a person known by the responding health care professionals to be pregnant.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.020 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.099. MERCY KILLING NOT CONDONED. This subchapter does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying as provided by this subchapter.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.021 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.100. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This subchapter does not impair or supersede any legal right or responsibility a person may have under a constitution, other statute, regulation, or court decision to effect the withholding of cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.022 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.101. DUTIES OF DEPARTMENT AND BOARD. (a) The board shall, on the recommendation of the department, adopt all reasonable and necessary rules to carry out the purposes of this subchapter, including rules:
(1) adopting a statewide out-of-hospital DNR order protocol that sets out standard procedures for the withholding of cardiopulmonary resuscitation and certain other life-sustaining treatment by health care professionals acting in out-of-hospital settings;
(2) designating life-sustaining treatment that may be included in an out-of-hospital DNR order, including all procedures listed in Sections 166.081(6)(A)(i) through (v); and
(3) governing recordkeeping in circumstances in which an out-of-hospital DNR order or DNR identification device is encountered by responding health care professionals.
(b) The rules adopted by the board under Subsection (a) are not effective until approved by the Texas State Board of Medical Examiners.
(c) Local emergency medical services authorities may adopt local out-of-hospital DNR order protocols if the local protocols do not conflict with the statewide out-of-hospital DNR order protocol adopted by the board.
(d) The board by rule shall specify a distinctive standard design for a necklace and a bracelet DNR identification device that signifies, when worn by a person, that the possessor has executed or issued a valid out-of-hospital DNR order under this subchapter or is a person for whom a valid out-of-hospital DNR order has been executed or issued.
(e) The department shall report to the board from time to time regarding issues identified in emergency medical services responses in which an out-of-hospital DNR order or DNR identification device is encountered. The report may contain recommendations to the board for necessary modifications to the form of the standard out-of-hospital DNR order or the designated life-sustaining procedures listed in the standard out-of-hospital DNR order, the statewide out-of-hospital DNR order protocol, or the DNR identification devices.
Added by Acts 1995, 74th Leg., ch. 965, § 10, eff. June 16, 1995. Renumbered from § 674.023 and amended by Acts 1999, 76th Leg., ch. 450, § 1.04, eff. Sept. 1, 1999.
§ 166.102. PHYSICIAN'S DNR ORDER MAY BE HONORED BY HEALTH CARE PERSONNEL OTHER THAN EMERGENCY MEDICAL SERVICES PERSONNEL. (a) Except as provided by Subsection (b), a licensed nurse or person providing health care services in an out-of-hospital setting may honor a physician's do-not-resuscitate order.
(b) When responding to a call for assistance, emergency medical services personnel shall honor only a properly executed or issued out-of-hospital DNR order or prescribed DNR identification device in accordance with this subchapter.
Added by Acts 2003, 78th Leg., ch. 1228, § 7, eff. June 20, 2003.
SUBCHAPTER D. MEDICAL POWER OF ATTORNEY
§ 166.151. DEFINITIONS. In this subchapter: (1) "Adult" means a person 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed.
(2) "Agent" means an adult to whom authority to make health care decisions is delegated under a medical power of attorney.
(3) "Health care provider" means an individual or facility licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice and includes a physician.
(4) "Principal" means an adult who has executed a medical power of attorney.
(5) "Residential care provider" means an individual or facility licensed, certified, or otherwise authorized to operate, for profit or otherwise, a residential care home.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.001 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.152. SCOPE AND DURATION OF AUTHORITY. (a) Subject to this subchapter or any express limitation on the authority of the agent contained in the medical power of attorney, the agent may make any health care decision on the principal's behalf that the principal could make if the principal were competent.
(b) An agent may exercise authority only if the principal's attending physician certifies in writing and files the certification in the principal's medical record that, based on the attending physician's reasonable medical judgment, the principal is incompetent.
(c) Notwithstanding any other provisions of this subchapter, treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection:
(1) a medical power of attorney is in effect; or (2) the principal is competent. (d) The principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's advance directive.
(e) After consultation with the attending physician and other health care providers, the agent shall make a health care decision:
(1) according to the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs; or
(2) if the agent does not know the principal's wishes, according to the agent's assessment of the principal's best interests.
(f) Notwithstanding any other provision of this subchapter, an agent may not consent to:
(1) voluntary inpatient mental health services; (2) convulsive treatment; (3) psychosurgery; (4) abortion; or (5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.
(g) The power of attorney is effective indefinitely on execution as provided by this subchapter and delivery of the document to the agent, unless it is revoked as provided by this subchapter or the principal becomes competent. If the medical power of attorney includes an expiration date and on that date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked as provided by this subchapter.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.002 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. A person may not exercise the authority of an agent while the person serves as:
(1) the principal's health care provider; (2) an employee of the principal's health care provider unless the person is a relative of the principal;
(3) the principal's residential care provider; or (4) an employee of the principal's residential care provider unless the person is a relative of the principal.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.003 by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.154. EXECUTION AND WITNESSES. (a) The medical power of attorney must be signed by the principal in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the document.
(b) If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal's name in the principal's presence and at the principal's express direction.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.004 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.155. REVOCATION. (a) A medical power of attorney is revoked by: (1) oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal's mental state;
(2) execution by the principal of a subsequent medical power of attorney; or
(3) the divorce of the principal and spouse, if the spouse is the principal's agent, unless the medical power of attorney provides otherwise.
(b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.005 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.156. APPOINTMENT OF GUARDIAN. (a) On motion filed in connection with a petition for appointment of a guardian or, if a guardian has been appointed, on petition of the guardian, a probate court shall determine whether to suspend or revoke the authority of the agent.
(b) The court shall consider the preferences of the principal as expressed in the medical power of attorney.
(c) During the pendency of the court's determination under Subsection (a), the guardian has the sole authority to make any health care decisions unless the court orders otherwise. If a guardian has not been appointed, the agent has the authority to make any health care decisions unless the court orders otherwise.
(d) A person, including any attending physician or health or residential care provider, who does not have actual knowledge of the appointment of a guardian or an order of the court granting authority to someone other than the agent to make health care decisions is not subject to criminal or civil liability and has not engaged in unprofessional conduct for implementing an agent's health care decision.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.006 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.157. DISCLOSURE OF MEDICAL INFORMATION. Subject to any limitations in the medical power of attorney, an agent may, for the purpose of making a health care decision:
(1) request, review, and receive any information, oral or written, regarding the principal's physical or mental health, including medical and hospital records;
(2) execute a release or other document required to obtain the information; and
(3) consent to the disclosure of the information.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.007 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. (a) A principal's health or residential care provider and an employee of the provider who knows of the existence of the principal's medical power of attorney shall follow a directive of the principal's agent to the extent it is consistent with the desires of the principal, this subchapter, and the medical power of attorney.
(b) The attending physician does not have a duty to verify that the agent's directive is consistent with the principal's wishes or religious or moral beliefs.
(c) A principal's health or residential care provider who finds it impossible to follow a directive by the agent because of a conflict with this subchapter or the medical power of attorney shall inform the agent as soon as is reasonably possible. The agent may select another attending physician. The procedures established under Sections 166.045 and 166.046 apply if the agent's directive concerns providing, withholding, or withdrawing life-sustaining treatment.
(d) This subchapter may not be construed to require a health or residential care provider who is not a physician to act in a manner contrary to a physician's order.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.008 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.159. DISCRIMINATION RELATING TO EXECUTION OF MEDICAL POWER OF ATTORNEY. A health or residential care provider, health care service plan, insurer issuing disability insurance, self-insured employee benefit plan, or nonprofit hospital service plan may not:
(1) charge a person a different rate solely because the person has executed a medical power of attorney;
(2) require a person to execute a medical power of attorney before: (A) admitting the person to a hospital, nursing home, or residential care home;
(B) insuring the person; or (C) allowing the person to receive health or residential care; or (3) refuse health or residential care to a person solely because the person has executed a medical power of attorney.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.009 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.160. LIMITATION ON LIABILITY. (a) An agent is not subject to criminal or civil liability for a health care decision if the decision is made in good faith under the terms of the medical power of attorney and the provisions of this subchapter.
(b) An attending physician, health or residential care provider, or a person acting as an agent for or under the physician's or provider's control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission:
(1) is done in good faith under the terms of the medical power of attorney, the directives of the agent, and the provisions of this subchapter; and
(2) does not constitute a failure to exercise reasonable care in the provision of health care services.
(c) The standard of care that the attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control shall exercise under Subsection (b) is that degree of care that an attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstances in the same or similar community.
(d) An attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control has not engaged in unprofessional conduct for:
(1) failure to act as required by the directive of an agent or a medical power of attorney if the physician, provider, or person was not provided with a copy of the medical power of attorney or had no knowledge of a directive; or
(2) acting as required by an agent's directive if the medical power of attorney has expired or been revoked but the physician, provider, or person does not have knowledge of the expiration or revocation.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.010 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.161. LIABILITY FOR HEALTH CARE COSTS. Liability for the cost of health care provided as a result of the agent's decision is the same as if the health care were provided as a result of the principal's decision.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.011 by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.162. DISCLOSURE STATEMENT. A medical power of attorney is not effective unless the principal, before executing the medical power of attorney, signs a statement that the principal has received a disclosure statement and has read and understood its contents.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.014 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.163. FORM OF DISCLOSURE STATEMENT. The disclosure statement must be in substantially the following form:
INFORMATION CONCERNING THE MEDICAL POWER OF ATTORNEY
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician.
Your agent's authority begins when your doctor certifies that you lack the competence to make health care decisions.
Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.
It is important that you discuss this document with your physician or other health care provider before you sign it to make sure that you understand the nature and range of decisions that may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer's assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.
The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.
You should inform the person you appoint that you want the person to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who have signed copies. Your agent is not liable for health care decisions made in good faith on your behalf.
Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing your agent or your health or residential care provider orally or in writing or by your execution of a subsequent medical power of attorney. Unless you state otherwise, your appointment of a spouse dissolves on divorce.
This document may not be changed or modified. If you want to make changes in the document, you must make an entirely new one.
You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate has the same authority to make health care decisions for you.
THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES. THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have designated as your agent; (2) a person related to you by blood or marriage; (3) a person entitled to any part of your estate after your death under a will or codicil executed by you or by operation of law;
(4) your attending physician; (5) an employee of your attending physician; (6) an employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or
(7) a person who, at the time this power of attorney is executed, has a claim against any part of your estate after your death.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.015 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.164. FORM OF MEDICAL POWER OF ATTORNEY. The medical power of attorney must be in substantially the following form:
MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT.
I,__________(insert your name) appoint:
Name:___________________________________________________________
Address:________________________________________________________
Phone___________________________________________________________ as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This medical power of attorney takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.
LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:_____________________________________________________
_____________________________________________________ DESIGNATION OF ALTERNATE AGENT. (You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)
If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:
A. First Alternate Agent
Name:_____________________________________________ Address:__________________________________________ Phone________________________________________ B. Second Alternate Agent
Name:_____________________________________________ Address:__________________________________________ Phone________________________________________
The original of this document is kept at: __________________________________________________ __________________________________________________ __________________________________________________
The following individuals or institutions have signed copies:
Name:_____________________________________________ Address:__________________________________________ __________________________________________________
Name:_____________________________________________ Address:__________________________________________ __________________________________________________ DURATION. I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.
(IF APPLICABLE) This power of attorney ends on the following date: __________
PRIOR DESIGNATIONS REVOKED. I revoke any prior medical power of attorney. ACKNOWLEDGMENT OF DISCLOSURE STATEMENT. I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the disclosure statement.
(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.) I sign my name to this medical power of attorney on __________ day of __________ (month, year) at
_____________________________________________
(City and State)
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
STATEMENT OF FIRST WITNESS. I am not the person appointed as agent by this document. I am not related to the principal by blood or marriage. I would not be entitled to any portion of the principal's estate on the principal's death. I am not the attending physician of the principal or an employee of the attending physician. I have no claim against any portion of the principal's estate on the principal's death. Furthermore, if I am an employee of a health care facility in which the principal is a patient, I am not involved in providing direct patient care to the principal and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
Signature:________________________________________________ Print Name:___________________________________ Date:______ Address:__________________________________________________ SIGNATURE OF SECOND WITNESS.
Signature:________________________________________________ Print Name:___________________________________ Date:______ Address:__________________________________________________
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.016 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.165. CIVIL ACTION. (a) A person who is a near relative of the principal or a responsible adult who is directly interested in the principal, including a guardian, social worker, physician, or clergyman, may bring an action in district court to request that the medical power of attorney be revoked because the principal, at the time the medical power of attorney was signed:
(1) was not competent; or (2) was under duress, fraud, or undue influence. (b) The action may be brought in the county of the principal's residence or the residence of the person bringing the action.
(c) During the pendency of the action, the authority of the agent to make health care decisions continues in effect unless the district court orders otherwise.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.017 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999.
§ 166.166. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. This subchapter does not limit or impair any legal right or responsibility that any person, including a physician or health or residential care provider, may have to make or implement health care decisions on behalf of a person, provided that if an attending physician or health care facility is unwilling to honor a patient's advance directive or a treatment decision to provide life-sustaining treatment, life-sustaining treatment is required to be provided the patient, but only until a reasonable opportunity has been afforded for transfer of the patient to another physician or health care facility willing to comply with the advance directive or treatment decision.
Added by Acts 1991, 72nd Leg., ch. 16, § 3.02(a), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 135.018 and amended by Acts 1999, 76th Leg., ch. 450, § 1.05, eff. Sept. 1, 1999. § 167.001. FEMALE GENITAL MUTILATION PROHIBITED. (a) A person commits an offense if the person knowingly circumcises, excises, or infibulates any part of the labia majora or labia minora or clitoris of another person who is younger than 18 years of age.
(b) An offense under this section is a state jail felony. (c) It is a defense to prosecution under Subsection (a) that: (1) the person performing the act is a physician or other licensed health care professional and the act is within the scope of the person's license; and
(2) the act is performed for medical purposes.
Added by Acts 1999, 76th Leg., ch. 642, § 1, eff. Aug. 30, 1999. Renumbered from § 166.001 by Acts 2001, 77th Leg., ch. 1420, § 21.001(75), eff. Sept. 1, 2001. § 168.001. DEFINITIONS. In this chapter: (1) "Diabetes management and treatment plan" means the document required by Section 168.002.
(2) "Individualized health plan" means the document required by Section 168.003.
(3) "Principal" includes the principal's designee. (4) "School" means a public elementary or secondary school. The term does not include an open-enrollment charter school established under Subchapter D, Chapter 12, Education Code.
(5) "School employee" means a person employed by: (A) a school; (B) a local health department that assists a school under this chapter; or
(C) another entity with which a school has contracted to perform its duties under this chapter.
(6) "Unlicensed diabetes care assistant" means a school employee who has successfully completed the training required by Section 168.005.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.002. DIABETES MANAGEMENT AND TREATMENT PLAN. (a) A diabetes management and treatment plan must be developed and implemented for each student with diabetes who will seek care for the student's diabetes while at school or while participating in a school activity. The plan shall be developed by:
(1) the student's parent or guardian; and (2) the physician responsible for the student's diabetes treatment. (b) A diabetes management and treatment plan must: (1) identify the health care services the student may receive at school; (2) evaluate the student's ability to manage and level of understanding of the student's diabetes; and
(3) be signed by the student's parent or guardian and the physician responsible for the student's diabetes treatment.
(c) The parent or guardian of a student with diabetes who seeks care for the student's diabetes while the student is at school shall submit to the school a copy of the student's diabetes management and treatment plan. The plan must be submitted to and reviewed by the school:
(1) before or at the beginning of the school year; (2) on enrollment of the student, if the student enrolls in the school after the beginning of the school year; or
(3) as soon as practicable following a diagnosis of diabetes for the student.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.003. INDIVIDUALIZED HEALTH PLAN. (a) An individualized health plan is a coordinated plan of care designed to meet the unique health care needs of a student with diabetes in the school setting.
(b) An individualized health plan must be developed for each student with diabetes who will seek care for diabetes while at school or while participating in a school activity. The school principal and the school nurse, if a school nurse is assigned to the school, shall develop a student's individualized health plan in collaboration with the student's parent or guardian and, to the extent practicable, the physician responsible for the student's diabetes treatment and one or more of the student's teachers.
(c) A student's individualized health plan must incorporate components of the student's diabetes management and treatment plan, including the information required under Section 168.002(b). A school shall develop a student's individualized health plan on receiving the student's diabetes management and treatment plan.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.004. UNLICENSED DIABETES CARE ASSISTANT. (a) At each school in which a student with diabetes is enrolled, the school principal shall:
(1) seek school employees who are not health care professionals to serve as unlicensed diabetes care assistants and care for students with diabetes; and
(2) make efforts to ensure that the school has: (A) at least one unlicensed diabetes care assistant if a full-time nurse is assigned to the school; and
(B) at least three unlicensed diabetes care assistants if a full-time nurse is not assigned to the school.
(b) An unlicensed diabetes care assistant shall serve under the supervision of the principal.
(c) A school employee may not be subject to any penalty or disciplinary action for refusing to serve as an unlicensed diabetes care assistant.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.005. TRAINING FOR UNLICENSED DIABETES CARE ASSISTANT. (a) The Texas Diabetes Council shall develop guidelines, with the assistance of the following entities, for the training of unlicensed diabetes care assistants:
(1) the department's School Health Program; (2) the American Diabetes Association; (3) the Juvenile Diabetes Research Foundation International; (4) the American Association of Diabetes Educators; (5) the Texas Nurses Association; (6) the Texas School Nurse Organization; and (7) the Texas Education Agency. (b) If a school nurse is assigned to a campus, the school nurse shall coordinate the training of school employees acting as unlicensed diabetes care assistants.
(c) Training under this section must be provided by a health care professional with expertise in the care of persons with diabetes or by the school nurse. The training must be provided before the beginning of the school year or as soon as practicable following:
(1) the enrollment of a student with diabetes at a campus that previously had no students with diabetes; or
(2) a diagnosis of diabetes for a student at a campus that previously had no students with diabetes.
(d) The training must include instruction in: (1) recognizing the symptoms of hypoglycemia and hyperglycemia; (2) understanding the proper action to take if the blood glucose levels of a student with diabetes are outside the target ranges indicated by the student's diabetes management and treatment plan;
(3) understanding the details of a student's individualized health plan; (4) performing finger-sticks to check blood glucose levels, checking urine ketone levels, and recording the results of those checks;
(5) properly administering glucagon and insulin and recording the results of the administration;
(6) recognizing complications that require seeking emergency assistance; and
(7) understanding the recommended schedules and food intake for meals and snacks for a student with diabetes, the effect of physical activity on blood glucose levels, and the proper actions to be taken if a student's schedule is disrupted.
(e) The school nurse or principal shall maintain a copy of the training guidelines and any records associated with the training.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.006. REQUIRED INFORMATION FOR CERTAIN EMPLOYEES. A school district shall provide to each district employee who is responsible for providing transportation for a student with diabetes or supervising a student with diabetes during an off-campus activity a one-page information sheet that:
(1) identifies the student who has diabetes; (2) identifies potential emergencies that may occur as a result of the student's diabetes and the appropriate responses to such emergencies; and
(3) provides the telephone number of a contact person in case of an emergency involving the student with diabetes.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.007. REQUIRED CARE OF STUDENTS WITH DIABETES. (a) If a school nurse is assigned to a campus and the nurse is available, the nurse shall perform the tasks necessary to assist a student with diabetes in accordance with the student's individualized health plan. If a school nurse is not assigned to the campus or a school nurse is not available, an unlicensed diabetes care assistant shall perform the tasks necessary to assist the student with diabetes in accordance with the student's individualized health plan and in compliance with any guidelines provided during training under Section 168.005. An unlicensed diabetes care assistant may perform the tasks provided by this subsection only if the parent or guardian of the student signs an agreement that:
(1) authorizes an unlicensed diabetes care assistant to assist the student; and
(2) states that the parent or guardian understands that an unlicensed diabetes care assistant is not liable for civil damages as provided by Section 168.009.
(b) If a school nurse is not assigned to a campus: (1) an unlicensed diabetes care assistant must have access to an individual with expertise in the care of persons with diabetes, such as a physician, a registered nurse, a certified diabetes educator, or a licensed dietitian; or
(2) the principal must have access to the physician responsible for the student's diabetes treatment.
(c) Each school shall adopt a procedure to ensure that a school nurse or at least one unlicensed diabetes care assistant is present and available to provide the required care to a student with diabetes during the regular school day.
(d) A school district may not restrict the assignment of a student with diabetes to a particular campus on the basis that the campus does not have the required unlicensed diabetes care assistants.
(e) An unlicensed diabetes care assistant who assists a student as provided by Subsection (a) in compliance with a student's individualized health plan:
(1) is not considered to be engaging in the practice of professional or vocational nursing under Chapter 301, Occupations Code, or other state law; and
(2) is exempt from any applicable state law or rule that restricts the activities that may be performed by a person who is not a health care professional.
(f) An unlicensed diabetes care assistant may exercise reasonable judgment in deciding whether to contact a health care provider in the event of a medical emergency involving a student with diabetes.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.008. INDEPENDENT MONITORING AND TREATMENT. In accordance with the student's individualized health plan, a school shall permit the student to attend to the management and care of the student's diabetes, which may include:
(1) performing blood glucose level checks; (2) administering insulin through the insulin delivery system the student uses;
(3) treating hypoglycemia and hyperglycemia; (4) possessing on the student's person at any time any supplies or equipment necessary to monitor and care for the student's diabetes; and
(5) otherwise attending to the management and care of the student's diabetes in the classroom, in any area of the school or school grounds, or at any school-related activity.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005.
§ 168.009. IMMUNITY FROM DISCIPLINARY ACTION OR LIABILITY. (a) A school employee may not be subject to any disciplinary proceeding, as defined by Section 22.0512(b), Education Code, resulting from an action taken in compliance with this subchapter. The requirements of this subchapter are considered to involve the employee's judgment and discretion and are not considered ministerial acts for purposes of immunity from liability under Section 22.0511, Education Code. Nothing in the subchapter shall be considered to limit the immunity from liability afforded under Section 22.0511, Education Code.
(b) A school nurse is not responsible for and may not be subject to disciplinary action under Chapter 301, Occupations Code, for actions performed by an unlicensed diabetes care assistant.
Added by Acts 2005, 79th Leg., ch. 1022, § 1, eff. June 18, 2005. § 170.001. DEFINITIONS. In this chapter: (1) "Abortion" means an act involving the use of an instrument, medicine, drug, or other substance or device developed to terminate the pregnancy of a woman if the act is done with an intention other than to:
(A) increase the probability of a live birth of the unborn child of the woman;
(B) preserve the life or health of the child; or (C) remove a dead fetus. (2) "Physician" means an individual licensed to practice medicine in this state.
(3) "Viable" means the stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case, an unborn child possesses the capacity to live outside its mother's womb after its premature birth from any cause. The term does not include a fetus whose biparietal diameter is less than 60 millimeters.
Added by Acts 1999, 76th Leg., ch. 388, § 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 10.001, eff. Sept. 1, 2001.
§ 170.002. PROHIBITED ACTS; EXEMPTION. (a) Except as provided by Subsection (b), a person may not intentionally or knowingly perform an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy.
(b) Subsection (a) does not prohibit a person from performing an abortion if at the time of the abortion the person is a physician and concludes in good faith according to the physician's best medical judgment that:
(1) the fetus is not a viable fetus and the pregnancy is not in the third trimester;
(2) the abortion is necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the woman; or
(3) the fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures.
(c) A physician who performs an abortion that, according to the physician's best medical judgment at the time of the abortion, is to abort a viable unborn child during the third trimester of the pregnancy shall certify in writing to the department, on a form prescribed by the department, the medical indications supporting the physician's judgment that the abortion was authorized by Subsection (b)(2) or (3). The certification must be made not later than the 30th day after the date the abortion was performed.
Added by Acts 1999, 76th Leg., ch. 388, § 5, eff. Sept. 1, 1999. § 171.001. SHORT TITLE. This chapter may be called the Woman's Right to Know Act.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.002. DEFINITION. In this chapter, "abortion" means the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant with the intention that the termination of the pregnancy by those means will, with reasonable likelihood, cause the death of the fetus.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.003. PHYSICIAN TO PERFORM. An abortion may be performed only by a physician licensed to practice medicine in this state.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.004. ABORTION OF FETUS AGE 16 WEEKS OR MORE. An abortion of a fetus age 16 weeks or more may be performed only at an ambulatory surgical center or hospital licensed to perform the abortion.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.005. DEPARTMENT TO ENFORCE. The department shall enforce this chapter.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
SUBCHAPTER B. INFORMED CONSENT
§ 171.011. INFORMED CONSENT REQUIRED. A person may not perform an abortion without the voluntary and informed consent of the woman on whom the abortion is to be performed.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.012. VOLUNTARY AND INFORMED CONSENT. (a) Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:
(1) the physician who is to perform the abortion or the referring physician informs the woman on whom the abortion is to be performed of:
(A) the name of the physician who will perform the abortion; (B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
(i) the risks of infection and hemorrhage; (ii) the potential danger to a subsequent pregnancy and of infertility; and
(iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
(C) the probable gestational age of the unborn child at the time the abortion is to be performed; and
(D) the medical risks associated with carrying the child to term; (2) the physician who is to perform the abortion or the physician's agent informs the woman that:
(A) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
(B) the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion;
(C) public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest; and
(D) the woman has the right to review the printed materials described by Section 171.014, that those materials have been provided by the Texas Department of Health and are accessible on an Internet website sponsored by the department, and that the materials describe the unborn child and list agencies that offer alternatives to abortion;
(3) the woman certifies in writing before the abortion is performed that the information described by Subdivisions (1) and (2) has been provided to her and that she has been informed of her opportunity to review the information described by Section 171.014; and
(4) before the abortion is performed, the physician who is to perform the abortion receives a copy of the written certification required by Subdivision (3).
(b) The information required to be provided under Subsections (a)(1) and (2) must be provided:
(1) orally by telephone or in person; and (2) at least 24 hours before the abortion is to be performed. (c) When providing the information under Subsection (a)(2)(D), the physician or the physician's agent must provide the woman with the address of the Internet website on which the printed materials described by Section 171.014 may be viewed as required by Section 171.014(e).
(d) The information provided to the woman under Subsection (a)(2)(B) must include, based on information available from the Office of the Attorney General and the United States Department of Health and Human Services Office of Child Support Enforcement for the three-year period preceding the publication of the information, information regarding the statistical likelihood of collecting child support.
(e) The department is not required to republish informational materials described by Subsection (a)(2)(B) because of a change in information described by Subsection (d) unless the statistical information in the materials changes by five percent or more.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.013. DISTRIBUTION OF STATE MATERIALS. (a) If the woman chooses to view the materials described by Section 171.014, the physician or the physician's agent shall furnish copies of the materials to her at least 24 hours before the abortion is to be performed. A physician or the physician's agent may furnish the materials to the woman by mail if the materials are mailed, restricted delivery to addressee, at least 72 hours before the abortion is to be performed.
(b) A physician or the physician's agent is not required to furnish copies of the materials if the woman provides the physician with a written statement that she chooses to view the materials on the Internet website sponsored by the department.
(c) The physician and the physician's agent may disassociate themselves from the materials and may choose to comment on the materials or to refrain from commenting.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.014. INFORMATIONAL MATERIALS. (a) The department shall publish informational materials that include:
(1) the information required to be provided under Sections 171.012(a)(1)(B) and (D) and (a)(2)(A), (B), and (C); and
(2) the materials required by Sections 171.015 and 171.016. (b) The materials shall be published in: (1) English and Spanish; (2) an easily comprehensible form; and (3) a typeface large enough to be clearly legible. (c) The materials shall be available at no cost from the department on request. The department shall provide appropriate quantities of the materials to any person.
(d) The department shall annually review the materials to determine if changes to the contents of the materials are necessary. The department shall adopt rules necessary for considering and making changes to the materials.
(e) The department shall develop and maintain an Internet website to display the information required to be published under this section. In developing and maintaining the website the department shall, to the extent reasonably practicable, safeguard the website against alterations by anyone other than the department and shall monitor the website each day to prevent and correct tampering. The department shall ensure that the website does not collect or maintain information regarding access to the website.
(f) In addition to any other organization or entity, the department shall use the American College of Obstetricians and Gynecologists as the resource in developing information required to be provided under Sections 171.012(a)(1)(B) and (D), Sections 171.012(a)(2)(A), (B), and (C), and Section 171.016, and in maintaining the department's Internet website.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.015. INFORMATION RELATING TO PUBLIC AND PRIVATE AGENCIES. The informational materials must include either:
(1) geographically indexed materials designed to inform the woman of public and private agencies and services that:
(A) are available to assist a woman through pregnancy, childbirth, and the child's dependency, including:
(i) a comprehensive list of adoption agencies; (ii) a description of the services the adoption agencies offer; and (iii) a description of the manner, including telephone numbers, in which an adoption agency may be contacted;
(B) do not provide abortions or abortion-related services or make referrals to abortion providers; and
(C) are not affiliated with organizations that provide abortions or abortion-related services or make referrals to abortion providers; or
(2) a toll-free, 24-hour telephone number that may be called to obtain an oral list and description of agencies described by Subdivision (1) that are located near the caller and of the services the agencies offer.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.016. INFORMATION RELATING TO CHARACTERISTICS OF UNBORN CHILD. (a) The informational materials must include materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival.
(b) The materials must include color pictures representing the development of the child at two-week gestational increments. The pictures must contain the dimensions of the unborn child and must be realistic.
(c) The materials provided under this section must be objective and nonjudgmental and be designed to convey only accurate scientific information about the unborn child at the various gestational ages.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.017. PERIODS RUN CONCURRENTLY. If the woman is an unemancipated minor subject to Chapter 33, Family Code, the 24-hour periods established under Sections 171.012(b) and 171.013(a) may run concurrently with the period during which actual or constructive notice is provided under Section 33.002, Family Code.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
§ 171.018. OFFENSE. A physician who intentionally performs an abortion on a woman in violation of this subchapter commits an offense. An offense under this section is a misdemeanor punishable by a fine not to exceed $10,000. In this section, "intentionally" has the meaning assigned by Section 6.03(a), Penal Code.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.
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