CHAPTER 85. ACQUIRED IMMUNE DEFICIENCY SYNDROME AND HUMAN IMMUNODEFICIENCY VIRUS INFECTION - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE D. PREVENTION, CONTROL, AND REPORTS OF DISEASES

CHAPTER 85. ACQUIRED IMMUNE DEFICIENCY SYNDROME AND HUMAN

IMMUNODEFICIENCY VIRUS INFECTION

SUBCHAPTER A. GENERAL PROVISIONS AND EDUCATION PROGRAMS

Sec. 85.001. SHORT TITLE. This chapter may be cited as the

Human Immunodeficiency Virus Services Act.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991. Amended by Acts 1993, 73rd Leg., ch. 708, Sec. 2, eff.

Sept. 1, 1993.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991. Amended by Acts 1999, 76th Leg., ch. 1411, Sec. 24.01, eff.

Sept. 1, 1999.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 85.016. RULES. The board may adopt rules necessary to

implement Subchapters A through F.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER B. STATE GRANT PROGRAM TO COMMUNITY ORGANIZATIONS

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER C. HIV MEDICATION PROGRAM

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER D. TESTING PROGRAMS AND COUNSELING

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.773,

eff. Sept. 1, 2001.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER E. DUTIES OF STATE AGENCIES AND STATE CONTRACTORS

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991. Amended by Acts 1995, 74th Leg., ch. 835, Sec. 25, eff.

Sept. 1, 1995.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER F. DEMONSTRATION PROJECTS ON NURSING CARE

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER G. POLICIES OF CORRECTIONAL AND LAW ENFORCEMENT

AGENCIES, FIRE DEPARTMENTS, AND EMERGENCY MEDICAL SERVICES

PROVIDERS

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

Sec. 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, Sec. 36, eff. Sept. 1,

1991.

SUBCHAPTER I. PREVENTION OF TRANSMISSION OF HIV AND HEPATITIS B

VIRUS BY INFECTED HEALTH CARE WORKERS

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 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, Sec. 5.05, eff.

Sept. 1, 1991.

SUBCHAPTER J. HOME COLLECTION KITS FOR HIV INFECTION TESTING

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.

Sec. 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, Sec. 1, eff. April 28,

1995.