CHAPTER 42. KIDNEY HEALTH CARE - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE B. TEXAS DEPARTMENT OF HEALTH PROGRAMS

CHAPTER 42. KIDNEY HEALTH CARE

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

Sec. 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. Sec. 1395 et seq. and 42 U.S.C. Sec. 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.

(3) "Serum creatinine test" is a diagnostic test of a person's

blood that measures the level of creatinine present in the blood.

(4) "Estimated glomerular filtration rate" is a calculation of a

person's kidney function based on:

(A) the person's age, race, and gender; and

(B) the results of the person's serum creatinine test.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1296, Sec. 1, eff. September 1, 2009.

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

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

Sec. 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, Sec. 12, eff. Sept. 1,

1991. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.769,

eff. Sept. 1, 2001.

Sec. 42.0047. ESTIMATED GLOMERULAR FILTRATION RATE REPORTING.

(a) A laboratory that performs a serum creatinine test on a

sample from a person 18 years of age or older shall also

calculate and include in the reported results the person's

estimated glomerular filtration rate or the results of an

alternative equivalent calculation measuring kidney function if

the laboratory receives along with the sample all relevant

clinical information about the person necessary to calculate the

person's estimated glomerular filtration rate or perform an

alternative equivalent calculation. A physician requesting a

serum creatinine test shall provide to the laboratory all

relevant clinical information about the person necessary to

calculate the person's estimated glomerular filtration rate or

perform an alternative equivalent calculation unless the

physician determines that the calculation is unnecessary.

(b) The requirements under Subsection (a) do not apply to:

(1) a laboratory that uses equipment to perform serum creatinine

tests that cannot be reprogrammed to calculate the estimated

glomerular filtration rate or perform an alternative equivalent

calculation measuring kidney function; or

(2) a laboratory performing a serum creatinine test on a sample

taken from a patient who is being treated in a hospital.

Added by Acts 2009, 81st Leg., R.S., Ch.

1296, Sec. 2, eff. September 1, 2009.

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

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

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(66), eff.

Sept. 1, 1995.

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

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

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(66), eff.

Sept. 1, 1995.

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

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

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

Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 10.01, eff. Sept.

1, 1997.

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

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

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

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

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

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

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