CHAPTER 162. BLOOD BANKS AND DONATION OF BLOOD - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE H. PUBLIC HEALTH PROVISIONS

CHAPTER 162. BLOOD BANKS AND DONATION OF BLOOD

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1989, 71st Leg., ch. 1100, Sec. 5.08(a), eff.

Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1989, 71st Leg., ch. 1100, Sec. 5.08(b), eff.

Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1, 1989.

Sec. 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, Sec. 1, eff. Sept. 1,

1993.

Sec. 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, Sec. 9, eff. Sept. 1,

2003.

Sec. 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, Sec. 9, eff. Sept. 1,

2003.

Sec. 162.018. BROCHURE ON UMBILICAL CORD BLOOD OPTIONS. (a)

The executive commissioner of the Health and Human Services

Commission shall prepare and update as necessary a brochure based

on nationally accepted, peer reviewed, scientific research

information regarding stem cells contained in the umbilical cord

blood after delivery of an infant. The information in the

brochure must include:

(1) the current and potential uses, risks, and benefits of stem

cells contained in umbilical cord blood to a potential recipient

of donated stem cells, including a biological family member,

extended family member, or nonrelated individual;

(2) the options available for future use or storage of umbilical

cord blood after delivery of an infant, including:

(A) discarding the stem cells;

(B) donating the stem cells to a public umbilical cord blood

bank;

(C) storing the stem cells in a private family umbilical cord

blood bank for use by immediate and extended family members; and

(D) storing the stem cells for immediate and extended family use

through a family or sibling donor banking program that provides

free collection, processing, and storage when a medical need

exists;

(3) the medical process used to collect umbilical cord blood

after delivery of an infant;

(4) any risk associated with umbilical cord blood collection to

the mother and the infant;

(5) any costs that may be incurred by a pregnant woman who

chooses to donate or store umbilical cord blood after delivery of

the woman's infant; and

(6) the average cost of public and private umbilical cord blood

banking.

(b) The Department of State Health Services shall make the

brochure available on the department's website and shall

distribute the brochure on request to physicians or other persons

permitted by law to attend a pregnant woman during gestation or

at delivery of an infant.

Added by Acts 2007, 80th Leg., R.S., Ch.

104, Sec. 1, eff. May 17, 2007.

Sec. 162.019. DUTY OF CERTAIN PROFESSIONALS. (a) Except as

otherwise provided by this section, a physician or other person

permitted by law to attend a pregnant woman during gestation or

at delivery of an infant shall provide the woman with the

brochure described in Section 162.018 before the third trimester

of the woman's pregnancy or as soon as reasonably feasible.

(b) A person described in Subsection (a) who attends a pregnant

woman during delivery of her infant shall permit the mother to

arrange for umbilical cord blood storage or donation if the

mother requests unless, in the opinion of the person, the

donation threatens the health of the mother or her infant.

(c) A person described by Subsection (a) is not required to

distribute the brochure under Subsection (a) or to permit for the

arrangement of umbilical cord blood storage or donation under

Subsection (b) if the action conflicts with the person's

religious beliefs and the person makes this fact known to the

mother as soon as reasonably feasible.

(d) A person described by Subsection (a) is not required to

distribute the brochure under Subsection (a) while treating the

pregnant woman for an emergency condition or when the mother

presents in labor and delivers the infant during that

presentation.

(e) A person described by Subsection (a) is not required to

distribute the brochure under Subsection (a) if the woman

provides the person with a written statement that she chooses to

view the materials on the website described by Section

162.018(b).

(f) A person described by Subsection (a) who fails to distribute

the brochure is not subject to discipline by the appropriate

licensing agency and a cause of action is not created by any

failure to distribute the brochure as required by this section.

Added by Acts 2007, 80th Leg., R.S., Ch.

104, Sec. 1, eff. May 17, 2007.