HEALTH & SAFETY CODE
CHAPTER 85. ACQUIRED IMMUNE DEFICIENCY SYNDROME AND HUMAN
IMMUNODEFICIENCY VIRUS INFECTION
SUBCHAPTER A. GENERAL PROVISIONS AND EDUCATION PROGRAMS
§ 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.
