HEALTH & SAFETY CODE CHAPTER 161. PUBLIC HEALTH PROVISIONS
HEALTH & SAFETY CODE
SUBTITLE H. PUBLIC HEALTH PROVISIONS
CHAPTER 161. PUBLIC HEALTH PROVISIONS
SUBCHAPTER A. IMMUNIZATIONS
§ 161.0001. DEFINITIONS. In this subchapter:
(1) "Data elements" means the information:
(A) a health care provider who administers a
vaccine is required to record in a medical record under 42 U.S.C.
Section 300aa-25, as amended, including:
(i) the date the vaccine is administered;
(ii) the vaccine manufacturer and lot
number of the vaccine;
(iii) any adverse or unexpected events for
a vaccine; and
(iv) the name, the address, and if
appropriate, the title of the health care provider administering
the vaccine; and
(B) specified in rules adopted to implement
Section 161.00705.
(1-a) "First responder" has the meaning assigned by
Section 421.095, Government Code.
(1-b) "Immediate family member" means the parent,
spouse, child, or sibling of a person who resides in the same
household as the person.
(2) "Payor" means an insurance company, a health
maintenance organization, or another organization that pays a
health care provider to provide health care benefits, including
providing immunizations to a person younger than 18 years of age.
Added by Acts 2003, 78th Leg., ch. 1081, § 1, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.01, eff.
September 1, 2007.
§ 161.001. LIABILITY OF PERSON WHO ORDERS OR ADMINISTERS
IMMUNIZATION. (a) A person who administers or authorizes the
administration of a vaccine or immunizing agent is not liable for an
injury caused by the vaccine or immunizing agent if the
immunization is required by the board or is otherwise required by
law or rule.
(b) A person who administers or authorizes the
administration of a vaccine or immunizing agent is not liable or
responsible for the failure to immunize a child because of the
failure or refusal of a parent, managing conservator, or guardian
to consent to the vaccination or immunization required under this
chapter. Consent to the vaccination or immunization must be given
in the manner authorized by Chapter 32, Family Code.
(c) A person who fails to comply with Section 161.004 is not
liable or responsible for that failure, and that failure does not
create a cause of action.
(d) This section does not apply to a negligent act in
administering the vaccine or immunizing agent.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 43, § 2, eff. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 165, § 7.40, eff. Sept. 1, 1997.
§ 161.002. INADMISSIBILITY OF IMMUNIZATION SURVEY
INFORMATION. Information obtained from a physician's medical
records by a person conducting an immunization survey for the
department is not admissible as evidence in a suit against the
physician that involves an injury relating to the immunization of
an individual.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 161.003. IMMUNIZATION REMINDER NOTICES. (a) In a
program administered by the department in which an immunization
reminder notice is sent regarding the immunization of a child, the
notice must be sent without discrimination based on the legitimacy
of the child.
(b) The reminder notice must be addressed to an adult or
parent and may not use:
(1) an indication of the marital status of the
addressee; or
(2) the terms "Mr.," "Mrs.," "Miss," or "Ms."
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 161.004. STATEWIDE IMMUNIZATION OF CHILDREN.
(a) Every child in the state shall be immunized against vaccine
preventable diseases caused by infectious agents in accordance with
the immunization schedule adopted by the board.
(b) Hospitals shall be responsible for:
(1) referring newborns for immunization at the time
the newborn screening test is performed;
(2) reviewing the immunization history of every child
admitted to the hospital or examined in the hospital's emergency
room or outpatient clinic; and
(3) administering needed vaccinations or referring
the child for immunization.
(c) Physicians shall be responsible for reviewing the
immunization history of every child examined and administering any
needed vaccinations or referring the child for immunization.
(d) A child is exempt from an immunization required by this
section if:
(1) a parent, managing conservator, or guardian states
that the immunization is being declined for reasons of conscience,
including a religious belief; or
(2) the immunization is medically contraindicated
based on the opinion of a physician licensed by any state in the
United States who has examined the child.
(e) For purposes of this section, "child" means a person
under 18 years of age.
(f) The board shall adopt rules that are necessary to
administer this section.
(g) A parent, managing conservator, or guardian may choose
the health care provider who administers the vaccine or immunizing
agent under this chapter.
Added by Acts 1993, 73rd Leg., ch. 43, § 3, eff. Sept. 1, 1993.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.162, eff. Sept. 1,
2003.
§ 161.0041. IMMUNIZATION EXEMPTION AFFIDAVIT FORM.
(a) A person claiming an exemption from a required immunization
based on reasons of conscience, including a religious belief, under
Section 161.004 of this code, Section 38.001 or 51.933, Education
Code, or Section 42.043, Human Resources Code, must complete an
affidavit on a form provided by the department stating the reason
for the exemption.
(b) The affidavit must be signed by the person claiming the
exemption or, if the person is a minor, the person's parent,
managing conservator, or guardian, and the affidavit must be
notarized.
(c) A person claiming an exemption from a required
immunization under this section may only obtain the affidavit form
by submitting a written request for the affidavit form to the
department.
(d) The department shall develop a blank affidavit form that
contains a seal or other security device to prevent reproduction of
the form. The affidavit form shall contain a statement indicating
that the person or, if a minor, the person's parent, managing
conservator, or guardian understands the benefits and risks of
immunizations and the benefits and risks of not being immunized.
(e) The department shall maintain a record of the total
number of affidavit forms sent out each year and shall report that
information to the legislature each year. The department may not
maintain a record of the names of individuals who request an
affidavit under this section.
Added by Acts 2003, 78th Leg., ch. 198, § 2.163, eff. Sept. 1,
2003.
§ 161.005. IMMUNIZATIONS REQUIRED. (a) On admission
of a child to a facility of the Texas Department of Mental Health
and Mental Retardation, the Texas Department of Criminal Justice,
or the Texas Youth Commission, the facility physician shall review
the immunization history of the child and administer any needed
vaccinations or refer the child for immunization.
(b) The department and the board have the same powers and
duties under this section as those entities have under Sections
38.001 and 51.933 , Education Code. In addition, the provisions of
those sections relating to provisional admissions and exceptions
apply to this section.
(c) A facility covered by this section shall keep an
individual immunization record during the individual's period of
admission, detention, or commitment in the facility, and the
records shall be open for inspection at all reasonable times by a
representative of the local health department or the department.
(d) This section does not affect the requirements of Section
38.001 or 51.933, Education Code, or Section 42.043, Human
Resources Code.
Added by Acts 1993, 73rd Leg., ch. 43, § 3, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 165, § 6.41, eff. Sept. 1,
1997.
§ 161.0051. REQUIRED IMMUNIZATIONS FOR NURSING HOMES.
(a) This section applies only to a nursing home that:
(1) is an institution licensed under Chapter 242; and
(2) serves residents who are elderly persons as
defined by Section 242.002.
(b) The board by rule may require nursing homes to offer, in
accordance with an immunization schedule adopted by the board,
immunizations to elderly residents or to staff who are in contact
with elderly residents against diseases that the board determines
to be:
(1) caused by infectious agents;
(2) potentially deadly; and
(3) preventable by vaccine.
(c) The board by rule shall require nursing homes to offer,
in accordance with an immunization schedule adopted by the board:
(1) pneumococcal vaccine to elderly residents; and
(2) influenza vaccine to elderly residents and to
staff who are in contact with elderly residents.
Added by Acts 1999, 76th Leg., ch. 259, § 1, eff. Sept. 1, 1999.
§ 161.0052. IMMUNIZATION OF ELDERLY PERSONS BY
HOSPITALS, END STAGE RENAL DISEASE FACILITIES, AND PHYSICIANS'
OFFICES. (a) In this section:
(1) "Elderly person" means a person who is 65 years of
age or older.
(2) "End stage renal disease facility" has the meaning
assigned by Section 251.001.
(3) "Hospital" has the meaning assigned by Section
241.003.
(b) The executive commissioner of the Health and Human
Services Commission by rule shall require a hospital to inform each
elderly person admitted to the hospital for a period of 24 hours or
more that the pneumococcal and influenza vaccines are
available. If the elderly person requests a vaccine, and if a
physician, or an advanced nurse practitioner or physician assistant
on behalf of a physician, determines that the vaccine is in the
person's best interest, the hospital must make the vaccination
available to the person before the person is discharged from the
hospital.
(c) The executive commissioner of the Health and Human
Services Commission by rule shall require an end stage renal
disease facility to offer, to the extent possible as determined by
the facility, the opportunity to receive the pneumococcal and
influenza vaccines to each elderly person who receives ongoing care
at the facility if a physician, or an advanced nurse practitioner or
physician assistant on behalf of a physician, determines that the
vaccine is in the person's best interest. If the facility decides
it is not feasible to offer the vaccine, the facility must provide
the person with information on other options for obtaining the
vaccine.
(d) The Texas State Board of Medical Examiners by rule shall
require a physician responsible for the management of a physician's
office that provides ongoing medical care to elderly persons to
offer, to the extent possible as determined by the physician, the
opportunity to receive the pneumococcal and influenza vaccines to
each elderly person who receives ongoing care at the office. If
the physician decides it is not feasible to offer the vaccine, the
physician must provide the person with information on other options
for obtaining the vaccine.
(e) Rules adopted under this section must require that:
(1) a hospital, end stage renal disease facility, or
physician's office:
(A) offer the influenza vaccine in October and
November, and if the vaccine is available, December; and
(B) offer the pneumococcal vaccine year-round;
and
(2) a person administering a vaccine:
(A) ask whether the elderly person is currently
vaccinated against the influenza virus or pneumococcal disease, as
appropriate;
(B) administer the vaccine under
institution-approved or physician-approved protocols after making
an assessment for contraindications; and
(C) permanently document the vaccination in the
elderly person's medical records.
(f) In adopting rules under this section, the executive
commissioner of the Health and Human Services Commission and the
Texas State Board of Medical Examiners shall consider the
recommendations of the Advisory Committee on Immunization
Practices of the Centers for Disease Control and Prevention.
(g) Rules adopted under this section may consider the
potential for a shortage of a vaccine.
(h) The department shall make available to hospitals and end
stage renal disease facilities, and the Texas State Board of
Medical Examiners shall make available to physicians' offices,
educational and informational materials concerning vaccination
against influenza virus and pneumococcal disease.
Added by Acts 2005, 79th Leg., Ch. 368, § 1, eff. September 1,
2005.
§ 161.006. DEPARTMENT IMMUNIZATION SERVICE. The
department, to the extent permitted by law, is authorized to pay
employees who are exempt or not exempt for purposes of the Fair
Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) on a
straight-time basis for work on a holiday or for regular
compensatory time hours when the taking of regular compensatory
time off would be disruptive to normal business operations.
Authorization for payment under this section is limited to work
directly related to immunizations.
Added by Acts 1993, 73rd Leg., ch. 43, § 3, eff. Sept. 1, 1993.
§ 161.007. IMMUNIZATION REGISTRY; REPORTS TO
DEPARTMENT. (a) The department, for the primary purpose of
establishing and maintaining a single repository of accurate,
complete, and current immunization records to be used in aiding,
coordinating, and promoting efficient and cost-effective childhood
communicable disease prevention and control efforts, shall
establish and maintain an immunization registry. The department
by rule shall develop guidelines to:
(1) protect the confidentiality of patients in
accordance with Section 159.002, Occupations Code;
(2) inform a parent, managing conservator, or guardian
of each patient younger than 18 years of age about the registry;
(3) require the written consent of a parent, managing
conservator, or guardian of a patient younger than 18 years of age
before any information relating to the patient is included in the
registry;
(4) permit a parent, managing conservator, or guardian
of a patient younger than 18 years of age to withdraw consent for
the patient to be included in the registry; and
(5) determine the process by which consent is
verified, including affirmation by a health care provider, birth
registrar, regional health information exchange, or local
immunization registry that consent has been obtained.
(a-1) The written consent required by Subsection (a)(3) is
required to be obtained only one time. The written consent is valid
until the child becomes 18 years of age unless the consent is
withdrawn in writing. A parent, managing conservator, or guardian
of a child may provide the written consent by using an electronic
signature on the child's birth certificate.
(b) The immunization registry must contain information on
the immunization history that is obtained by the department under:
(1) this section of each person who is younger than 18
years of age and for whom consent has been obtained in accordance
with guidelines adopted under Subsection (a);
(2) Section 161.00705 of persons immunized to prepare
for or in response to a declared disaster, public health emergency,
terrorist attack, hostile military or paramilitary action, or
extraordinary law enforcement emergency; and
(3) Section 161.00706 of first responders or their
immediate family members.
(b-1) The department shall remove from the registry
information for any person for whom consent has been
withdrawn. The department may not retain individually
identifiable information about any person:
(1) for whom consent has been withdrawn;
(2) for whom a consent for continued inclusion in the
registry following the end of the declared disaster, public health
emergency, terrorist attack, hostile military or paramilitary
action, or extraordinary law enforcement emergency has not been
received under Section 161.00705(f); or
(3) for whom a request to be removed from the registry
has been received under Section 161.00706(e).
(c) A payor that receives data elements from a health care
provider who administers an immunization to a person younger than
18 years of age shall provide the data elements to the department.
A payor is required to provide the department with only the data
elements the payor receives from a health care provider. The data
elements shall be submitted in a format prescribed by the
department. The department shall verify consent before including
the reported information in the immunization registry. The
department may not retain individually identifiable information
about a person for whom consent cannot be verified.
(d) A health care provider who administers an immunization
to a person younger than 18 years of age shall provide data elements
regarding an immunization to the department. The data elements
shall be submitted in a format prescribed by the department. The
department shall verify consent before including the information in
the immunization registry. The department may not retain
individually identifiable information about a person for whom
consent cannot be verified.
(e) The department shall provide notice to a health care
provider that submits an immunization history for a person for whom
consent cannot be verified. The notice shall contain instructions
for obtaining consent in accordance with guidelines adopted under
Subsection (a) and resubmitting the immunization history to the
department.
(f) The department and health care providers may use the
registry to provide notices by mail, telephone, personal contact,
or other means to a parent, managing conservator, or guardian
regarding his or her child or ward who is due or overdue for a
particular type of immunization according to the department's
immunization schedule. The department shall consult with health
care providers to determine the most efficient and cost-effective
manner of using the registry to provide those notices.
(g) The department shall provide instruction and education
to providers about the immunization registry provider application
and enrollment process. The department shall:
(1) initially target providers in the geographic
regions of the state with immunization rates below the state
average for preschool children; and
(2) expedite the processing of provider applications.
(h) Nothing in this section diminishes a parent's, managing
conservator's, or guardian's responsibility for having a child
immunized properly, subject to Section 161.004(d).
(i) A person, including a health care provider, payor, or an
employee of the department who submits or obtains in good faith
immunization data elements to or from the department in compliance
with the provisions of this section and any rules adopted under this
section is not liable for any civil damages.
(j) Except as provided by Sections 161.00705, 161.00706,
and 161.008, information obtained by the department for the
immunization registry is confidential and may be disclosed only
with the written consent of the individual or, if a child, the
child's parent, managing conservator, or guardian.
(k) The board shall adopt rules to implement this section.
Added by Acts 1997, 75th Leg., ch. 900, § 1, eff. Sept. 1, 1997.
Amended by Acts 2001, 77th Leg., ch. 1420, § 14.780, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 1081, § 2.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.03, eff.
September 1, 2007.
§ 161.00705. RECORDING ADMINISTRATION OF IMMUNIZATION
AND MEDICATION FOR DISASTERS AND EMERGENCIES. (a) The department
shall maintain a registry of persons who receive an immunization,
antiviral, and other medication administered to prepare for a
potential disaster, public health emergency, terrorist attack,
hostile military or paramilitary action, or extraordinary law
enforcement emergency or in response to a declared disaster, public
health emergency, terrorist attack, hostile military or
paramilitary action, or extraordinary law enforcement
emergency. A health care provider who administers an
immunization, antiviral, or other medication shall provide the data
elements to the department.
(b) The department shall maintain the registry as part of
the immunization registry required by Section 161.007.
(c) The department shall track adverse reactions to an
immunization, antiviral, and other medication administered to
prepare for a potential disaster, public health emergency,
terrorist attack, hostile military or paramilitary action, or
extraordinary law enforcement emergency or in response to a
declared disaster, public health emergency, terrorist attack,
hostile military or paramilitary action, or extraordinary law
enforcement emergency. A health care provider who administers an
immunization, antiviral, or other medication may provide data
related to adverse reactions to the department.
(d) Sections 161.007, 161.0071, 161.0072, and 161.0074
apply to the data elements submitted to the department under this
section, unless a provision in those sections conflicts with a
requirement in this section.
(e) The executive commissioner of the Health and Human
Services Commission by rule shall determine the period during which
the information collected under this section must remain in the
immunization registry following the end of the disaster, public
health emergency, terrorist attack, hostile military or
paramilitary action, or extraordinary law enforcement emergency.
(f) Unless an individual or, if a child, the child's parent,
managing conservator, or guardian consents in writing to continued
inclusion of the child's or other individual's information in the
registry, the department shall remove the immunization records
collected under this section from the registry on expiration of the
period prescribed under Subsection (e).
(g) The immunization information of a child or other
individual received by the department under this section, including
individually identifiable information, may be released only:
(1) on consent of the individual or, if a child, the
child's parent, managing conservator, or guardian; or
(2) to a state agency or health care provider
consistent with the purposes of this subchapter or the purposes of
aiding or coordinating communicable disease prevention and control
efforts during a declared disaster, public health emergency,
terrorist attack, hostile military or paramilitary action, or
extraordinary law enforcement emergency.
(h) The report required under Section 161.0074 must also
include the number of complaints received by the department related
to the department's failure to remove information from the registry
as required by Subsection (f).
(i) The executive commissioner of the Health and Human
Services Commission shall adopt rules necessary to implement this
section.
Added by Acts 2007, 80th Leg., R.S., Ch. 258, § 12.02, eff.
September 1, 2007.
§ 161.00706. FIRST RESPONDER IMMUNIZATION INFORMATION.
(a) A person 18 years of age or older who is a first responder or an
immediate family member of a first responder may:
(1) request that a health care provider who
administers an immunization to the person provide data elements
regarding the immunization to the department for inclusion in the
immunization registry; or
(2) provide the person's immunization history directly
to the department for inclusion in the immunization registry.
(b) A health care provider, on receipt of a request under
Subsection (a)(1), shall submit the data elements to the department
in a format prescribed by the department. The department shall
verify the person's request before including the information in the
immunization registry.
(c) The executive commissioner of the Health and Human
Services Commission shall:
(1) develop rules to ensure that immunization history
submitted under Subsection (a)(2) is medically verified
immunization information;
(2) develop guidelines for use by the department in
informing first responders about the registry; and
(3) adopt rules necessary for the implementation of
this section.
(d) A person's immunization history or data received by the
department under this section may be released only on consent of the
person or to any health care provider licensed or otherwise
authorized to administer vaccines.
(e) A person whose immunization records are included in the
immunization registry as authorized by this section may request in
writing that the department remove that information from the
registry. Not later than the 10th day after receiving a request
under this subsection, the department shall remove the person's
immunization records from the registry.
(f) The report required under Section 161.0074 must also
include the number of complaints received by the department related
to the department's failure to comply with requests for removal of
information from the registry under Subsection (e).
Added by Acts 2007, 80th Leg., R.S., Ch. 258, § 12.02, eff.
September 1, 2007.
§ 161.00707. INFORMATION AND EDUCATION FOR FIRST
RESPONDERS. The department shall develop a program for informing
first responders about the immunization registry and educating
first responders about the benefits of being included in the
immunization registry, including:
(1) ensuring that first responders receive necessary
immunizations to prevent the spread of communicable diseases to
which a first responder may be exposed during a public health
emergency, declared disaster, terrorist attack, hostile military
or paramilitary action, or extraordinary law enforcement
emergency; and
(2) preventing duplication of vaccinations.
Added by Acts 2007, 80th Leg., R.S., Ch. 258, § 12.02, eff.
September 1, 2007.
§ 161.0071. NOTICE OF RECEIPT OF REGISTRY DATA;
EXCLUSION FROM REGISTRY. (a) The first time the department
receives registry data for a child for whom the department has
received consent to be included in the registry, from a person other
than the child's parent, managing conservator, or guardian, the
department shall send a written notice to the child's parent,
managing conservator, or guardian disclosing:
(1) that providers and payors may be sending the
child's immunization information to the department;
(2) the information that is included in the registry;
(3) the persons to whom the information may be
released under Section 161.008(d);
(4) the purpose and use of the registry;
(5) the procedure to exclude a child from the
registry; and
(6) the procedure to report a violation if a parent,
managing conservator, or guardian discovers a child is included in
the registry after exclusion has been requested.
(b) On discovering that consent to be included in the
registry has not been granted, the department shall exclude the
child's immunization records from the registry and any other
registry-related department record that individually identifies
the child.
(c) On receipt of a written request to exclude a child's
immunization records from the registry, the department shall send
to a parent, managing conservator, or guardian who makes the
request a written confirmation of receipt of the request for
exclusion and shall exclude the child's records from the registry.
(d) The department commits a violation if the department
fails to exclude a child's immunization information from the
registry as required by Subsection (b) or (c).
(e) The department shall accept a written statement from a
parent, managing conservator, or guardian communicating to the
department that a child should be excluded from the registry,
including a statement on the child's birth certificate, as a
request for exclusion under Subsection (c). The written statement
may include the electronic signature on the child's birth
certificate.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
§ 161.0072. PROVIDING IMMUNIZATION INFORMATION TO
DEPARTMENT. (a) If the parent, managing conservator, or guardian
of a child has reasonable concern that the child's health care
provider is not submitting the immunization history to the
department and the parent, managing conservator, or guardian wants
the child included in the registry, the parent, managing
conservator, or guardian may provide the child's immunization
history directly to the department to be included in the
immunization registry.
(b) The parent, managing conservator, or guardian of a child
may send evidence of the child's immunization history to the
department by facsimile transmission or by mail. The evidence may
include a copy of:
(1) the child's medical record indicating the
immunization history;
(2) an invoice from a health care provider for the
immunization; or
(3) documentation showing that a claim for the
immunization was paid by a payor.
(c) The board shall develop rules to ensure that the
immunization history submitted by a parent, managing conservator,
or guardian is medically verified immunization information.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
§ 161.0073. REGISTRY CONFIDENTIALITY. (a) Except as
provided by Section 161.00705, information that individually
identifies a child or other individual that is received by the
department for the immunization registry is confidential and may be
used by the department for registry purposes only.
(b) Unless specifically authorized under this subchapter,
the department may not release registry information to any
individual or entity without the consent of the person or, if a
minor, the parent, managing conservator, or guardian of the child.
(c) A person required to report information to the
department for registry purposes or authorized to receive
information from the registry may not disclose the individually
identifiable information of a child or other individual to any
other person without written consent of the individual or, if a
child, the parent, managing conservator, or guardian of the child,
except as provided by Chapter 159, Occupations Code, or Section
602.053, Insurance Code.
(d) Registry information is not:
(1) subject to discovery, subpoena, or other means of
legal compulsion for release to any person or entity except as
provided by this subchapter; or
(2) admissible in any civil, administrative, or
criminal proceeding.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 728, § 11.127, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.04, eff.
September 1, 2007.
§ 161.0074. REPORT TO LEGISLATURE. (a) The department
shall report to the Legislative Budget Board, the governor, the
lieutenant governor, the speaker of the house of representatives,
and appropriate committees of the legislature not later than
September 30 of each even-numbered year.
(b) The department shall use the report required under
Subsection (a) to develop ways to increase immunization rates using
state and federal resources.
(c) The report must:
(1) include the current immunization rates by
geographic region of the state, where available;
(2) focus on the geographic regions of the state with
immunization rates below the state average for preschool children;
(3) describe the approaches identified to increase
immunization rates in underserved areas and the estimated cost for
each;
(4) identify changes to department procedures needed
to increase immunization rates;
(5) identify the services provided under and
provisions of contracts entered into by the department to increase
immunization rates in underserved areas;
(6) identify performance measures used in contracts
described by Subdivision (5);
(7) include the number and type of exemptions used in
the past year;
(8) include the number of complaints received by the
department related to the department's failure to comply with
requests for exclusion of individuals from the registry;
(9) identify all reported incidents of discrimination
for requesting exclusion from the registry or for using an
exemption for a required immunization;
(10) include department recommendations about the
best way to use, and communicate with, local registries in the
state; and
(11) include ways to increase provider participation
in the registry.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
§ 161.0075. IMMUNITY FROM LIABILITY. Except as provided
by Section 161.009, the following persons subject to this
subchapter that act in compliance with Sections 161.007, 161.00705,
161.00706, 161.0071, 161.0073, 161.0074, and 161.008 are not
civilly or criminally liable for furnishing the information
required under this subchapter:
(1) a payor;
(2) a health care provider who administers
immunizations; and
(3) an employee of the department.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.05, eff.
September 1, 2007.
§ 161.0076. COMPLIANCE WITH FEDERAL LAW. If the
provisions of this chapter relating to the use or disclosure of
information in the registry are more stringent than the Health
Insurance Portability and Accountability Act and Privacy
Standards, as defined by Section 181.001, then the use or
disclosure of information in the registry is governed by this
chapter.
Added by Acts 2003, 78th Leg., ch. 1081, § 3, eff. Sept. 1, 2003.
§ 161.008. IMMUNIZATION RECORD. (a) An immunization
record is part of the immunization registry.
(b) An immunization record contains the:
(1) name and date of birth of the person immunized;
(2) dates of immunization;
(3) types of immunization administered; and
(4) name and address of the health care provider
administering the immunization.
(c) The department may obtain the data constituting an
immunization record for a child from a public health district, a
local health department, the child's parent, managing conservator,
or guardian, a physician to the child, a payor, or any health care
provider licensed or otherwise authorized to administer vaccines.
The department shall verify consent before including the reported
information in the immunization registry. The department may not
retain individually identifiable information about a person for
whom consent cannot be verified.
(d) The department may release the data constituting an
immunization record for the child to any entity that is described by
Subsection (c), to a school or child care facility in which the
child is enrolled, or to a state agency having legal custody of the
child.
(e) A parent, managing conservator, or legal guardian may
obtain and on request to the department shall be provided with all
individually identifiable immunization registry information
concerning his or her child or ward.
(f) A person, including a health care provider, a payor, or
an employee of the department, that submits in good faith an
immunization history or data to or obtains in good faith an
immunization history or data from the department in compliance with
the provisions of this section and any rules adopted under this
section is not liable for any civil damages.
(g) The department may release nonidentifying summary
statistics related to the registry that do not individually
identify a child.
(h) The board shall adopt rules to implement this section.
Added by Acts 1997, 75th Leg., ch. 900, § 1, eff. Sept. 1, 1997.
Amended by Acts 2003, 78th Leg., ch. 1081, § 4, eff. Sept. 1,
2003.
§ 161.009. PENALTIES FOR DISCLOSURE OF INFORMATION.
(a) A person commits an offense if the person:
(1) negligently releases or discloses immunization
registry information in violation of Section 161.007, 161.0071,
161.0073, or 161.008;
(2) fails to exclude a child's immunization
information in violation of Section 161.0071;
(3) fails to remove a person's immunization
information in violation of Section 161.00705 or 161.00706; or
(4) negligently uses information in the immunization
registry to solicit new patients or clients or for other purposes
that are not associated with immunization or quality-of-care
purposes, unless authorized under this section.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 900, § 1, eff. Sept. 1, 1997.
Amended by Acts 2003, 78th Leg., ch. 1081, § 5.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.06, eff.
September 1, 2007.
§ 161.0095. PROVIDER EDUCATION PROGRAMS. The
department shall develop continuing education programs for
providers relating to immunizations and the vaccines for children
program operated by the department under authority of 42 U.S.C.
Section 1396s, as amended. The department shall establish a work
group to assist the department in developing the continuing
education programs and materials. The work group shall include
physicians, nurses, department representatives, representatives of
managed care organizations that provide health care services under
Chapter 533, Government Code, representatives of health plan
providers that provide health care services under Chapter 62, and
members of the public.
Added by Acts 2003, 78th Leg., ch. 613, § 1, eff. Sept. 1, 2003.
§ 161.010. IMMUNIZATION EDUCATION; STATEWIDE
COALITION. (a) The department shall establish a continuous
statewide education program to educate the public about the
importance of immunizing children and the risks and
contraindications of an immunization.
(b) The department shall increase coordination among public
and private local, regional, and statewide entities that have an
interest in immunizations.
Added by Acts 2003, 78th Leg., ch. 125, § 1, eff. Sept. 1, 2003.
§ 161.0101. INCREASE IMMUNIZATION AWARENESS. (a) The
department shall develop new public-private partnerships and work
with existing public-private partnership programs, including the
Seniors and Volunteers Program For Childhood Immunization, to
increase public and private awareness of and support for early
childhood immunizations.
(b) The department shall work with the Texas Education
Agency to increase immunization awareness and participation among
parents of preschool and school-age children by:
(1) jointly applying for federal funds for
immunization awareness and vaccination programs; and
(2) creating partnerships with public and private
health, service, and education organizations, including
parent-teacher associations, the United Way, schools, local
businesses, community-based organizations, chambers of commerce,
and athletic booster clubs, to increase awareness and participation
in the state's early childhood vaccination program.
(c) The department shall work to increase immunization
awareness and participation among parents of children in child-care
facilities, as defined by Section 42.002, Human Resources Code, in
the state's early childhood vaccination program by publishing on
the department's website information about the benefits of annual
immunization against influenza for children aged six months to five
years. The department shall work with the Department of Family and
Protective Services and with child-care facilities to ensure that
the information is annually distributed to parents in August or
September.
Added by Acts 2003, 78th Leg., ch. 844, § 1, eff. Sept. 1, 2003.
Renumbered from Health and Safety Code, Section 161.010 by Acts
2005, 79th Leg., Ch. 728, § 23.001(44), eff. September 1, 2005.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 922, § 1, eff. June 15,
2007.
Text of section as added by Acts 2007, 80th Leg., R.S., Ch. 397,
§ 1
For text of section as added by Acts 2007, 80th Leg., R.S., Ch. 258,
§ 12.07, see other § 161.0102.
§ 161.0102. VACCINES FOR CHILDREN PROGRAM; INFLUENZA
VACCINES. (a) In this section, "vaccines for children program"
means the program operated by the department under authority of 42
U.S.C. Section 1396s, as amended.
(b) The department shall allow each health care provider
participating in the vaccines for children program to:
(1) select influenza vaccines from the list of all
influenza vaccines that:
(A) are approved by the United States Food and
Drug Administration and recommended by the federal Advisory
Committee on Immunization Practices; and
(B) are either:
(i) within the limits of the vaccines
annually allocated by the Centers for Disease Control and
Prevention of the United States Public Health Service to the
department for the vaccines for children program; or
(ii) not offered in the annual allocation
under Subparagraph (i), but are available from the Centers for
Disease Control and Prevention of the United States Public Health
Service and for which the Centers for Disease Control and
Prevention awards to the department additional funds; and
(2) use both inactivated influenza vaccines and live,
attenuated influenza vaccines.
Added by Acts 2007, 80th Leg., R.S., Ch. 397, § 1, eff. June 15,
2007.
Text of section as added by Acts 2007, 80th Leg., R.S., Ch. 258,
§ 12.07
For text of section as added by Acts 2007, 80th Leg., R.S., Ch. 397,
§ 1, see other § 161.0102.
§ 161.0102. DISASTER PREPARATION. The department shall
consult with public health departments and appropriate health care
providers to identify adult immunizations that may be necessary to
respond to or prepare for a disaster or public health emergency,
terrorist attack, hostile military or paramilitary action, or
extraordinary law enforcement emergency.
Added by Acts 2007, 80th Leg., R.S., Ch. 258, § 12.07, eff.
September 1, 2007.
§ 161.0103. VACCINES FOR CHILDREN PROGRAM; EQUIVALENT
VACCINES. (a) In this section:
(1) "Vaccines for children program" means the program
operated by the department under authority of 42 U.S.C. Section
1396s.
(2) "Equivalent vaccines" means two or more vaccines,
excluding the influenza vaccine, that protect a recipient of a
vaccine against the same infection or infections, that require the
same number of doses, and that have similar safety and efficacy
profiles and which are recommended for comparable populations.
(b) Except as provided by Subsection (d), where two or more
manufacturers produce equivalent vaccines, the department shall
procure an equal supply of the vaccine from each manufacturer.
(c) An equivalent vaccine must be:
(1) approved by the United States Food and Drug
Administration;
(2) recommended by the federal Advisory Committee on
Immunization Practices; and
(3) made available to the department by the Centers
for Disease Control and Prevention of the United States Public
Health Service.
(d) The department shall procure an equal supply of each
equivalent vaccine under Subsection (b) only if the cost to the
department of providing each equivalent vaccine is not more than
110 percent of the lowest-priced equivalent vaccine.
Added by Acts 2007, 80th Leg., R.S., Ch. 397, § 2, eff. June 15,
2007.
§ 161.0105. LIMITATION ON LIABILITY. (a) A health care
provider who acts in compliance with Sections 161.007, 161.00705,
161.00706, and 161.008 and any rules adopted under those sections
is not civilly or criminally liable for furnishing the information
required under those sections. This subsection does not apply to
criminal liability established under Section 161.009.
(b) A person who administers a vaccination under a
department program may be held liable only to the extent the person
would be liable if the person administered the vaccination outside
the program. The person is not liable for damages arising from the
acts or omissions of another person acting under the program or the
department.
(c) The immunity created by this section is in addition to
any immunity created by Sections 161.001 and 161.007(g).
Added by Acts 2003, 78th Leg., ch. 844, § 1, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 258, § 12.08, eff.
September 1, 2007.
§ 161.0106. RESPIRATORY SYNCYTIAL VIRUS; IMMUNIZATION.
As part of the education programs under Sections 161.0095 and
161.010, the department shall include information about:
(1) respiratory syncytial virus and the importance of
preventative activities for children at risk of contracting the
virus;
(2) respiratory syncytial virus prophylaxis for
children who are at high risk of complications from the disease; and
(3) immunization for respiratory syncytial virus when
a vaccine is recommended and available.
Added by Acts 2005, 79th Leg., Ch. 115, § 1, eff. September 1,
2005.
Text of section as added by Acts 2007, 80th Leg., R.S., Ch. 352,
§ 1
For text of section as added by Acts 2007, 80th Leg., R.S., Ch. 59,
§ 1, see other § 161.0107.
§ 161.0107. ELECTRONIC MEDICAL RECORDS SYSTEMS. (a) In
this section:
(1) "Electronic medical records software package or
system" means an electronic system for maintaining medical records
in the clinical setting.
(2) "Medical records" has the meaning assigned by
Section 151.002, Occupations Code.
(b) A person who sells, leases, or otherwise provides an
electronic medical records software package or system to a person
who administers immunizations in this state or to an entity that
manages records for the person shall provide, as part of the
electronic medical records software package or system, the ability
to:
(1) electronically interface with the immunization
registry created under this subchapter; and
(2) generate electronic reports that contain the
fields necessary to populate the immunization registry.
(c) The executive commissioner of the Health and Human
Services Commission by rule shall specify:
(1) the fields necessary to populate the immunization
registry, including a field that indicates the patient's consent to
be listed in the immunization registry has been obtained; and
(2) the data standards that must be used for
electronic submission of immunization information.
(d) The data standards specified under Subsection (b) must
be compatible with the standards for immunization information
transmission adopted by the Healthcare Information Technology
Standards Panel sponsored by the American National Standards
Institute and included in certification criteria by the
Certification Commission for Healthcare Information Technology.
Added by Acts 2007, 80th Leg., R.S., Ch. 352, § 1, eff. June 15,
2007.
Text of section as added by Acts 2007, 80th Leg., R.S., Ch. 59, §
1
For text of section as added by Acts 2007, 80th Leg., R.S., Ch. 352,
§ 1, see other § 161.0107.
§ 161.0107. HUMAN PAPILLOMAVIRUS; VACCINES EDUCATION
MATERIALS. (a) The department, using existing resources, shall
produce and distribute informational materials regarding vaccines
against human papillomavirus that are approved by the United States
Food and Drug Administration for human use. The materials must
include information relating to the effectiveness, availability,
and contraindications of the vaccines. The materials must be
available in English and in Spanish.
(b) The department shall collaborate with the Texas Cancer
Council or its successor entity to develop educational programs for
parents regarding human papillomavirus and promoting awareness of a
minor's need for preventive services for cervical cancer and its
precursors.
(c) The department shall develop and maintain an Internet
website that targets the public and health care professionals and
provides accurate, comprehensive information on all aspects of
cervical cancer prevention, including vaccination against human
papillomavirus.
Added by Acts 2007, 80th Leg., R.S., Ch. 59, § 1, eff. September
1, 2007.
§ 161.0108. INJUNCTION. (a) The attorney general may
bring an action in the name of the state to enjoin a violation of
Section 161.0107.
(b) If the state prevails in a suit under this section, the
attorney general may recover on behalf of the state reasonable
attorney's fees, court costs, and reasonable investigative costs
incurred in relation to the proceeding.
Added by Acts 2007, 80th Leg., R.S., Ch. 352, § 1, eff. June 15,
2007.
SUBCHAPTER B. HEALTH INSPECTION OF PRIVATE RESIDENCE
§ 161.011. PERMISSION REQUIRED. A person, including an
officer or agent of this state or of an instrumentality or political
subdivision of this state, may not enter a private residence to
conduct a health inspection without first receiving:
(1) permission obtained from a lawful adult occupant
of the residence; or
(2) an authorization to inspect the residence for a
specific public health purpose by a magistrate or by an order of a
court of competent jurisdiction on a showing of a probable
violation of a state health law, a control measure under Chapter 81,
or a health ordinance of a political subdivision.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 2003, 78th Leg., ch. 198, § 2.189, eff. Sept. 1, 2003.
§ 161.012. CRIMINAL PENALTIES. (a) A person commits an
offense if the person violates Section 161.011. An offense under
this subsection is punishable by confinement in the state
penitentiary for not more than two years, a fine of not more than
$1,000, or both.
(b) A person commits an offense if the person knowingly
gives evidence obtained in violation of Section 161.011 to the
federal government or to an instrumentality of the federal
government. An offense under this subsection is punishable by
confinement in the county jail for not more than one year, a fine of
not more than $500, or both.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER C. PROVISION OF INFORMATION RELATING TO CERTAIN HEALTH
CONDITIONS
§ 161.021. AUTHORIZATION TO PROVIDE INFORMATION; USE OF
INFORMATION; LIABILITY. (a) Unless prohibited by other law, a
person, including a hospital, sanatorium, nursing home, rest home,
medical society, cancer registry, or other organization, may
provide interviews, reports, statements, memoranda, or other
information relating to the condition and treatment of any person,
to be used in a study to reduce morbidity or mortality or to
identify persons who may need immunization, to:
(1) the department;
(2) a person that makes inquiries under immunization
surveys conducted for the department;
(3) a medical organization;
(4) a hospital;
(5) a hospital committee; or
(6) a cancer registry, including a cancer registry of
a cancer treatment center as defined by Section 82.002.
(b) A person is not liable for damages or other relief for:
(1) providing the information;
(2) releasing or publishing the findings or
conclusions to advance medical research or medical education; or
(3) releasing or publishing a general summary of those
studies.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1997, 75th Leg., ch. 343, § 3, eff. May 27, 1997; Acts
1999, 76th Leg., ch. 1411, § 23.03, eff. Sept. 1, 1999.
§ 161.0211. EPIDEMIOLOGIC OR TOXICOLOGIC
INVESTIGATIONS. (a) Under its duty to protect the public health,
the department shall conduct epidemiologic or toxicologic
investigations of human illnesses or conditions and of
environmental exposures that are harmful or believed to be harmful
to the public health.
(b) The department may conduct those investigations to
determine the nature and extent of the disease or environmental
exposure believed to be harmful to the public health. Any findings
or determinations from such investigations that relate to
environmental exposures believed to be harmful to the public shall
be reported in writing to the Texas Natural Resource Conservation
Commission and the two agencies shall coordinate corrective
measures as appropriate. The department shall use generally
accepted methods of epidemiology or toxicology in the conduct of an
investigation.
(c) A person shall provide medical, demographic,
epidemiologic, toxicologic, or environmental information to the
department as described by Section 81.061(c).
(d) A person is not liable for damages or other relief for
providing medical or other confidential information to the
department during an epidemiologic or toxicologic investigation.
Added by Acts 1993, 73rd Leg., ch. 34, § 1, eff. Sept. 1, 1993.
§ 161.0212. RIGHT OF ENTRY. To conduct an epidemiologic
or toxicologic investigation, the commissioner or the
commissioner's designee has the same authority to investigate,
sample, inspect, and enter as that described by Sections 81.061,
81.063, 81.064, and 81.065.
Added by Acts 1993, 73rd Leg., ch. 34, § 1, eff. Sept. 1, 1993.
§ 161.0213. CONFIDENTIALITY. Reports, records, and
information furnished to the commissioner or the commissioner's
designee or the Texas Natural Resource Conservation Commission that
relate to an epidemiologic or toxicologic investigation of human
illnesses or conditions and of environmental exposures that are
harmful or believed to be harmful to the public health are not
public information under Chapter 552, Government Code, and are
subject to the same confidentiality requirements as described by
Section 81.046.
Added by Acts 1993, 73rd Leg., ch. 34, § 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept.
1, 1995.
§ 161.022. USE AND PUBLICATION RESTRICTIONS;
CONFIDENTIALITY. (a) The department, a medical organization, a
hospital, a hospital committee, or a cancer registry may use or
publish information under Section 161.021 only to advance medical
research or medical education in the interest of reducing morbidity
or mortality, except that a summary of the studies may be released
by those persons for general publication.
(b) The identity of a person whose condition or treatment
has been studied is confidential and may not be revealed except in
immunization surveys conducted for the department to identify
persons who need immunization.
(c) Interviews, reports, statements, memoranda, and other
information, other than immunization information, furnished under
this chapter and any findings or conclusions resulting from the
study of that information, are privileged.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1997, 75th Leg., ch. 343, § 4, eff. May 27, 1997.
§ 161.023. NO LIABILITY FOR REPORTS TO MEDICAL
COMMITTEE. (a) This section applies to:
(1) a physician, hospital, medical organization,
university health science center, university medical school, or an
officer or employee of that person or entity; and
(2) a health maintenance organization or an officer,
employee, or agent of the health maintenance organization,
including an independent practice association or other physician
association contracting with the health maintenance organization.
(b) A person or entity covered by this section is not liable
for damages to any person for furnishing information, reports, or
records to a medical committee relating to a patient:
(1) examined or treated by the physician; or
(2) treated or confined in:
(A) the hospital;
(B) a clinic or facility staffed or operated by a
university health science center or university medical school; or
(C) a hospital, clinic, or facility staffed,
operated, or used by a health maintenance organization.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 161.024. APPLICATION TO HEALTH MAINTENANCE
ORGANIZATION. This subchapter does not apply to a function of a
health maintenance organization other than medical peer review and
quality assurance conducted under Chapter 843, Insurance Code, the
rules adopted under that chapter, or other applicable state and
federal statutes and rules.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 2003, 78th Leg., ch. 1276, § 10A.524, eff. Sept. 1, 2003.
SUBCHAPTER D. MEDICAL COMMITTEES, MEDICAL PEER REVIEW COMMITTEES,
AND COMPLIANCE OFFICERS
§ 161.031. MEDICAL COMMITTEE DEFINED. (a) In this
subchapter, "medical committee" includes any committee, including
a joint committee, of:
(1) a hospital;
(2) a medical organization;
(3) a university medical school or health science
center;
(4) a health maintenance organization licensed under
Chapter 843, Insurance Code, including an independent practice
association or other physician association whose committee or joint
committee is a condition of contract with the health maintenance
organization;
(5) an extended care facility;
(6) a hospital district; or
(7) a hospital authority.
(b) The term includes a committee appointed ad hoc to
conduct a specific investigation or established under state or
federal law or rule or under the bylaws or rules of the organization
or institution.
(c) The term includes a committee, including a joint
committee, of one or more health care systems if each health care
system includes one or more of the entities listed in Subsection
(a).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1997, 75th Leg., ch. 655, § 1, eff. June 11, 1997; Acts
1999, 76th Leg., ch. 908, § 3, eff. June 18, 1999; Acts 2003,
78th Leg., ch. 1276, § 10A.525, eff. Sept. 1, 2003.
§ 161.0315. AUTHORITY OF GOVERNING BODY TO FORM
COMMITTEE TO EVALUATE MEDICAL AND HEALTH CARE SERVICES. (a) The
governing body of a hospital, medical organization, university
medical school or health science center, health maintenance
organization, extended care facility, hospital district, or
hospital authority may form a medical peer review committee, as
defined by Section 151.002, Occupations Code, or a medical
committee, as defined by Section 161.031, to evaluate medical and
health care services, except as provided by this section.
(b) Except as provided by Subsection (d), a medical peer
review committee or medical committee formed by the governing body
of a hospital district may not evaluate medical and health care
services provided by a health care facility that:
(1) contracts with the district to provide those
services; and
(2) has formed a medical peer review committee or
medical committee to evaluate the services provided by the
facility.
(c) A hospital district may require in a contract with a
health care facility described by Subsection (b) a provision that
allows the governing body of the district to appoint a specified
number of members to the facility's medical peer review committee
or medical committee to evaluate medical and health care services
for which the district contracts with the facility to provide. The
governing body of a hospital district may receive a report from the
facility's medical peer review committee or medical committee under
this section in a closed meeting. A report, information, or a
record that the district receives from the facility related to a
review action conducted under the terms of the contract is:
(1) confidential;
(2) not subject to disclosure under Chapter 552,
Government Code; and
(3) subject to the same confidentiality and disclosure
requirements to which a report, information, or record of a medical
peer review committee under Section 160.006, Occupations Code, is
subject.
(d) If a hospital district and a health care facility
described by Subsection (b) do not agree on a contract provision
described by Subsection (c), the hospital district has, with
respect to a review action for the evaluation of medical and health
care services provided by the facility under a contract with the
district, a right to:
(1) initiate the review action;
(2) appoint from the medical staff of the facility a
number of members to the facility's medical peer review committee
or medical committee equal to the number of members appointed to the
committee by the facility to conduct the review action, without
regard to whether the district initiates the action; and
(3) receive records, information, or reports from the
medical peer review committee or medical committee related to the
review action.
(e) The governing body of a hospital district may receive a
report under Subsection (d)(3) in a closed meeting. A report,
information, or a record that the hospital district receives under
Subsection (d)(3) is:
(1) confidential;
(2) not subject to disclosure under Chapter 552,
Government Code; and
(3) subject to the same confidentiality and disclosure
requirements to which a report, information, or record of a medical
peer review committee under Section 160.006, Occupations Code, is
subject.
(f) A medical peer review committee or medical committee
formed by the governing body of a hospital district may compile a
report, information, or record of the medical and health care
services provided by a health care facility described by Subsection
(b) and submit the compilation to the facility's medical peer
review committee or medical committee. A report, information, or
record compiled under this subsection is:
(1) confidential;
(2) not subject to disclosure under Chapter 552,
Government Code; and
(3) subject to the same confidentiality and disclosure
requirements to which a report, information, or record of a medical
peer review committee under Section 160.007, Occupations Code, is
subject.
Added by Acts 1999, 76th Leg., ch. 908, § 6, eff. June 18, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, § 14.781, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 721, § 1, eff. Sept. 1, 2003.
§ 161.032. RECORDS AND PROCEEDINGS CONFIDENTIAL.
(a) The records and proceedings of a medical committee are
confidential and are not subject to court subpoena.
(b) Notwithstanding Section 551.002, Government Code, the
following proceedings may be held in a closed meeting following the
procedures prescribed by Subchapter E, Chapter 551, Government
Code:
(1) a proceeding of a medical peer review committee,
as defined by Section 151.002, Occupations Code, or medical
committee; or
(2) a meeting of the governing body of a public
hospital, hospital district, hospital authority, or health
maintenance organization of a public hospital, hospital authority,
hospital district, or state-owned teaching hospital at which the
governing body receives records, information, or reports provided
by a medical committee, medical peer review committee, or
compliance officer.
(c) Records, information, or reports of a medical
committee, medical peer review committee, or compliance officer and
records, information, or reports provided by a medical committee,
medical peer review committee, or compliance officer to the
governing body of a public hospital, hospital district, or hospital
authority are not subject to disclosure under Chapter 552,
Government Code.
(d) The records and proceedings may be used by the committee
and the committee members only in the exercise of proper committee
functions.
(e) The records, information, and reports received or
maintained by a compliance officer retain the protection provided
by this section only if the records, information, or reports are
received, created, or maintained in the exercise of a proper
function of the compliance officer as provided by the Office of
Inspector General of the United States Department of Health and
Human Services.
(f) This section and Subchapter A, Chapter 160, Occupations
Code, do not apply to records made or maintained in the regular
course of business by a hospital, health maintenance organization,
medical organization, university medical center or health science
center, hospital district, hospital authority, or extended care
facility.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1993, 73rd Leg., ch. 625, § 6, eff. Sept. 1, 1993; Acts
1999, 76th Leg., ch. 908, § 4, eff. June 18, 1999; Acts 2001,
77th Leg., ch. 1511, § 3, eff. Sept. 1, 2001.
§ 161.033. IMMUNITY FOR COMMITTEE MEMBERS. A member of
a medical committee is not liable for damages to a person for an
action taken or recommendation made within the scope of the
functions of the committee if the committee member acts without
malice and in the reasonable belief that the action or
recommendation is warranted by the facts known to the committee
member.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER E. REPORTS OF GUNSHOT WOUNDS AND CONTROLLED SUBSTANCE
OVERDOSES
§ 161.041. MANDATORY REPORTING OF GUNSHOT WOUNDS. A
physician who attends or treats, or who is requested to attend or
treat, a bullet or gunshot wound, or the administrator,
superintendent, or other person in charge of a hospital,
sanitorium, or other institution in which a bullet or gunshot wound
is attended or treated or in which the attention or treatment is
requested, shall report the case at once to the law enforcement
authority of the municipality or county in which the physician
practices or in which the institution is located.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1999, 76th Leg., ch. 38, § 1, eff. Sept. 1, 1999.
§ 161.042. MANDATORY REPORTING OF CONTROLLED SUBSTANCE
OVERDOSES. (a) A physician who attends or treats, or who is
requested to attend or treat, an overdose of a controlled substance
listed in Penalty Group 1 under Section 481.102, or the
administrator, superintendent, or other person in charge of a
hospital, sanitorium, or other institution in which an overdose of
a controlled substance listed in Penalty Group 1 under Section
481.102 is attended or treated or in which the attention or
treatment is requested, shall report the case at once to the
department.
(b) A physician or other person who reports an overdose of a
controlled substance under this section shall include in the report
information regarding the date of the overdose, the type of
controlled substance used, the sex and approximate age of the
person attended or treated for the overdose or for whom treatment
was sought, the symptoms associated with the overdose, the extent
of treatment made necessary by the overdose, and the patient
outcome. The physician or other person making the report may
provide other demographic information concerning the person
attended or treated or for whom treatment was sought but may not
disclose the person's name or address or any other information
concerning the person's identity.
(c) A hospital, sanitorium, or other institution that makes
a report under this section is not subject to civil or criminal
liability for damages arising out of the report. An individual who
makes a good-faith report under this section is not subject to civil
or criminal liability for damages arising out of the report.
Added by Acts 1999, 76th Leg., ch. 38, § 1, eff. Sept. 1, 1999.
§ 161.043. CRIMINAL PENALTY. (a) A person commits an
offense if the person is required to report under this subchapter
and intentionally fails to report.
(b) An offense under this section is a misdemeanor
punishable by confinement in jail for not more than six months or by
a fine of not more than $100.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
Renumbered from Health and Safety Code § 161.042 and amended by
Acts 1999, 76th Leg., ch. 38, § 1, eff. Sept. 1, 1999.
§ 161.044. CONTROLLED SUBSTANCE OVERDOSE INFORMATION
REPOSITORY. (a) The department shall maintain a central
repository for the collection and analysis of information relating
to incidents of a controlled substance overdose for which a
physician or other person is required to report to the department
under Section 161.042. The department may not include in the
repository any information the physician or other person is
precluded from reporting under that section.
(b) The department shall release statistical information
contained in the central repository on the request of a medical
professional or representative of a law enforcement agency.
Added by Acts 1999, 76th Leg., ch. 38, § 1, eff. Sept. 1, 1999.
SUBCHAPTER F. DISCLOSURE OF CERTAIN AGREEMENTS FOR PAYMENT OF
LABORATORY TESTS
§ 161.061. LABORATORY INFORMATION REQUIRED. (a) A
person licensed in this state to practice medicine, dentistry,
podiatry, veterinary medicine, or chiropractic may not agree with a
clinical, bioanalytical, or hospital laboratory to make payments to
the laboratory for individual tests, combinations of tests, or test
series for a patient unless:
(1) the person discloses on the bill or statement to
the patient or to a third party payor the name and address of the
laboratory and the net amount paid to or to be paid to the
laboratory; or
(2) discloses in writing on request to the patient or
third party payor the net amount.
(b) The disclosure permitted by Subsection (a)(2) must show
the charge for the laboratory test or test series and may include an
explanation, in net dollar amounts or percentages, of the charge
from the laboratory, the charge for handling, and an interpretation
charge.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 161.062. GROUNDS FOR LICENSE DENIAL. The agency
responsible for licensing and regulating a person subject to this
subchapter may, in addition to any other authority granted, deny a
license application or other permission to practice if the person
violates this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
SUBCHAPTER G. HUMAN MILK BANKS
§ 161.071. MINIMUM GUIDELINES FOR HUMAN DONOR MILK
BANKS. The department shall establish minimum guidelines for the
procurement, processing, distribution, or use of human milk by
donor milk banks.
Added by Acts 2001, 77th Leg., ch. 379, § 1, eff. Sept. 1, 2001.
SUBCHAPTER H. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
§ 161.081. DEFINITIONS. In this subchapter:
(1) "Cigarette" has the meaning assigned by Section
154.001, Tax Code.
(2) "Permit holder" has the meaning assigned by
Section 154.001 or 155.001, Tax Code, as applicable.
(3) "Retail sale" means a transfer of possession from
a retailer to a consumer in connection with a purchase, sale, or
exchange for value of cigarettes or tobacco products.
(4) "Retailer" has the meaning assigned by Section
154.001 or 155.001, Tax Code, as applicable.
(5) "Tobacco product" has the meaning assigned by
Section 155.001, Tax Code.
(6) "Wholesaler" has the meaning assigned by Section
154.001 or 155.001, Tax Code, as applicable.
Amended by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997.
§ 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
PERSONS YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF OF AGE
REQUIRED. (a) A person commits an offense if the person, with
criminal negligence:
(1) sells, gives, or causes to be sold or given a
cigarette or tobacco product to someone who is younger than 18 years
of age; or
(2) sells, gives, or causes to be sold or given a
cigarette or tobacco product to another person who intends to
deliver it to someone who is younger than 18 years of age.
(b) If an offense under this section occurs in connection
with a sale by an employee of the owner of a store in which
cigarettes or tobacco products are sold at retail, the employee is
criminally responsible for the offense and is subject to
prosecution.
(c) An offense under this section is a Class C misdemeanor.
(d) It is a defense to prosecution under Subsection (a)(1)
that the person to whom the cigarette or tobacco product was sold or
given presented to the defendant apparently valid proof of
identification.
(e) A proof of identification satisfies the requirements of
Subsection (d) if it contains a physical description and photograph
consistent with the person's appearance, purports to establish that
the person is 18 years of age or older, and was issued by a
governmental agency. The proof of identification may include a
driver's license issued by this state or another state, a passport,
or an identification card issued by a state or the federal
government.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1991, 72nd Leg., ch. 14, § 50, eff. Sept. 1, 1991.
Renumbered from Health and Safety Code § 161.081 and amended by
Acts 1997, 75th Leg., ch. 671, § 1.01.
§ 161.0825. USE OF CERTAIN ELECTRONICALLY READABLE
INFORMATION. (a) In this section, "transaction scan device"
means a device capable of deciphering electronically readable
information on a driver's license, commercial driver's license, or
identification certificate.
(b) A person may access electronically readable information
on a driver's license, commercial driver's license, or
identification certificate for the purpose of complying with
Section 161.082.
(c) Information accessed under this section may not be sold
or otherwise disseminated to a third party for any purpose,
including any marketing, advertising, or promotional
activities. The information may be obtained by court order or on
proper request by the comptroller, a law enforcement officer, or a
law enforcement agency.
(d) A person who violates this section commits an
offense. An offense under this section is a Class A misdemeanor.
(e) It is an affirmative defense to prosecution under
Section 161.082 that:
(1) a transaction scan device identified a license or
certificate as valid and the defendant accessed the information and
relied on the results in good faith; or
(2) if the defendant is the owner of a store in which
cigarettes or tobacco products are sold at retail, the offense
under Section 161.082 occurs in connection with a sale by an
employee of the owner, and the owner had provided the employee with:
(A) a transaction scan device in working
condition; and
(B) adequate training in the use of the
transaction scan device.
Added by Acts 2005, 79th Leg., Ch. 391, § 1, eff. September 1,
2005.
§ 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
PERSONS YOUNGER THAN 27 YEARS OF AGE. (a) Pursuant to federal
regulation under 21 C.F.R. Section 897.14(b), a person may not
sell, give, or cause to be sold or given a cigarette or tobacco
product to someone who is younger than 27 years of age unless the
person to whom the cigarette or tobacco product was sold or given
presents an apparently valid proof of identification.
(b) A retailer shall adequately supervise and train the
retailer's agents and employees to prevent a violation of
Subsection (a).
(c) A proof of identification described by Section
161.082(e) satisfies the requirements of Subsection (a).
(d) Notwithstanding any other provision of law, a violation
of this section is not a violation of this subchapter for purposes
of Section 154.1142 or 155.0592, Tax Code.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Jan. 1,
1998.
§ 161.084. WARNING NOTICE. (a) Each person who sells
cigarettes or tobacco products at retail or by vending machine
shall post a sign in a location that is conspicuous to all employees
and customers and that is close to the place at which the cigarettes
or tobacco products may be purchased.
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A
MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION
OF TOBACCO PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED
BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE
OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE
TEXAS COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone
number). PREGNANT WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE
LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR WITH LOW BIRTH
WEIGHT.
(c) The comptroller by rule shall determine the design and
size of the sign.
(d) The comptroller on request shall provide the sign
without charge to any person who sells cigarettes or tobacco
products. The comptroller may provide the sign without charge to
distributors of cigarettes or tobacco products or wholesale dealers
of cigarettes or tobacco products in this state for distribution to
persons who sell cigarettes or tobacco products. A distributor or
wholesale dealer may not charge for distributing a sign under this
subsection.
(e) A person commits an offense if the person fails to
display a sign as prescribed by this section. An offense under this
subsection is a Class C misdemeanor.
(f) The comptroller may accept gifts or grants from any
public or private source to perform the comptroller's duties under
this section.
Added by Acts 1991, 72nd Leg., ch. 14, § 50, eff. Sept. 1, 1991.
Renumbered from Health and Safety Code § 161.082 and amended by
Acts 1997, 75th Leg., ch. 671, § 1.01. Amended by Acts 2001,
77th Leg., ch. 1141, § 1, eff. Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 62, § 1, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 488, § 2, eff. September 1,
2007.
§ 161.085. NOTIFICATION OF EMPLOYEES AND AGENTS.
(a) Each retailer shall notify each individual employed by that
retailer who is to be engaged in retail sales of cigarettes or
tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes
or tobacco products to any person who is younger than 18 years of
age as provided by Section 161.082 and that a violation of that
section is a Class C misdemeanor; and
(2) requires each person who sells cigarettes or
tobacco products at retail or by vending machine to post a warning
notice as provided by Section 161.084, requires each employee to
ensure that the appropriate sign is always properly displayed while
that employee is exercising the employee's duties, and provides
that a violation of Section 161.084 is a Class C misdemeanor.
(b) The notice required by Subsection (a) must be provided
within 72 hours of the date an individual begins to engage in retail
sales of tobacco products. The individual shall signify that the
individual has received the notice required by Subsection (a) by
signing a form stating that the law has been fully explained, that
the individual understands the law, and that the individual, as a
condition of employment, agrees to comply with the law.
(c) Each form signed by an individual under this section
shall indicate the date of the signature and the current address and
social security number of the individual. The retailer shall
retain the form signed by each individual employed as a retail sales
clerk until the 60th day after the date the individual has left the
employer's employ.
(d) A retailer required by this section to notify employees
commits an offense if the retailer fails, on demand of a peace
officer or an agent of the comptroller, to provide the forms
prescribed by this section. An offense under this section is a
Class C misdemeanor.
(e) It is a defense to prosecution under Subsection (d) to
show proof that the employee did complete, sign, and date the forms
required by Subsections (b) and (c). Proof must be shown to the
comptroller or an agent of the comptroller not later than the
seventh day after the date of a demand under Subsection (d).
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Jan. 1,
1998. Amended by Acts 2001, 77th Leg., ch. 1141, § 2, eff. Sept.
1, 2001.
§ 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING
MACHINES. (a) Except as provided by Subsection (b), a retailer or
other person may not:
(1) offer cigarettes or tobacco products for sale in a
manner that permits a customer direct access to the cigarettes or
tobacco products; or
(2) install or maintain a vending machine containing
cigarettes or tobacco products.
(b) Subsection (a) does not apply to:
(1) a facility or business that is not open to persons
younger than 18 years of age at any time;
(2) that part of a facility or business that is a
humidor or other enclosure designed to store cigars in a
climate-controlled environment; or
(3) a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code.
(c) The comptroller or a peace officer may, with or without
a warrant, seize, seal, or disable a vending machine installed or
maintained in violation of this section. Property seized under
this subsection must be seized in accordance with, and is subject to
forfeiture to the state in accordance with, Subchapter H, Chapter
154, Tax Code, and Subchapter E, Chapter 155, Tax Code.
(d) A person commits an offense if the person violates
Subsection (a). An offense under this subsection is a Class C
misdemeanor.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Jan. 1,
1998. Amended by Acts 1999, 76th Leg., ch. 567, § 1, eff. Sept.
1, 1999.
§ 161.087. DISTRIBUTION OF CIGARETTES OR TOBACCO
PRODUCTS. (a) A person may not distribute to persons younger than
18 years of age:
(1) a free sample of a cigarette or tobacco product;
or
(2) a coupon or other item that the recipient may use
to receive a free or discounted cigarette or tobacco product or a
sample cigarette or tobacco product.
(b) Except as provided by Subsection (c), a permit holder
may not accept or redeem, offer to accept or redeem, or hire a
person to accept or redeem a coupon or other item that the recipient
may use to receive a free or discounted cigarette or tobacco product
or a sample cigarette or tobacco product if the recipient is younger
than 18 years of age. A coupon or other item that such a recipient
may use to receive a free or discounted cigarette or tobacco product
or a sample cigarette or tobacco product may not be redeemable
through mail or courier delivery.
(c) Subsections (a)(2) and (b) do not apply to a transaction
between permit holders unless the transaction is a retail sale.
(d) A person commits an offense if the person violates this
section. An offense under this subsection is a Class C misdemeanor.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997.
§ 161.088. ENFORCEMENT; UNANNOUNCED INSPECTIONS.
(a) The comptroller shall enforce this subchapter in partnership
with local law enforcement agencies and with their cooperation and
shall ensure the state's compliance with Section 1926 of the
federal Public Health Service Act (42 U.S.C. Section 300x-26) and
any implementing regulations adopted by the United States
Department of Health and Human Services. Except as expressly
authorized by law, the comptroller may not adopt any rules
governing the subject matter of this subchapter or Subchapter K, N,
or O.
(b) The comptroller may make block grants to counties and
municipalities to be used by local law enforcement agencies to
enforce this subchapter in a manner that can reasonably be expected
to reduce the extent to which cigarettes and tobacco products are
sold or distributed to persons who are younger than 18 years of age.
At least annually, random unannounced inspections shall be
conducted at various locations where cigarettes and tobacco
products are sold or distributed to ensure compliance with this
subchapter. The comptroller shall rely, to the fullest extent
possible, on local law enforcement agencies to enforce this
subchapter.
(c) To facilitate the effective administration and
enforcement of this subchapter, the comptroller may enter into
interagency contracts with other state agencies, and those agencies
may assist the comptroller in the administration and enforcement of
this subchapter.
(d) The use of a person younger than 18 years of age to act
as a minor decoy to test compliance with this subchapter shall be
conducted in a fashion that promotes fairness. A person may be
enlisted by the comptroller or a local law enforcement agency to act
as a minor decoy only if the following requirements are met:
(1) written parental consent is obtained for the use
of a person younger than 18 years of age to act as a minor decoy to
test compliance with this subchapter;
(2) at the time of the inspection, the minor decoy is
younger than 17 years of age;
(3) the minor decoy has an appearance that would cause
a reasonably prudent seller of cigarettes or tobacco products to
request identification and proof of age;
(4) the minor decoy carries either the minor's own
identification showing the minor's correct date of birth or carries
no identification, and a minor decoy who carries identification
presents it on request to any seller of cigarettes or tobacco
products; and
(5) the minor decoy answers truthfully any questions
about the minor's age.
(e) The comptroller shall annually prepare for submission
by the governor to the secretary of the United States Department of
Health and Human Services the report required by Section 1926 of the
federal Public Health Service Act (42 U.S.C. Section 300x-26).
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1156, § 1, eff. Sept.
1, 1999.
§ 161.089. PREEMPTION OF LOCAL LAW. This subchapter
does not preempt a local regulation of the sale, distribution, or
use of cigarettes or tobacco products or affect the authority of a
political subdivision to adopt or enforce an ordinance or
requirement relating to the sale, distribution, or use of
cigarettes or tobacco products if the regulation, ordinance, or
requirement:
(1) is compatible with and equal to or more stringent
than a requirement prescribed by this subchapter; or
(2) relates to an issue that is not specifically
addressed by this subchapter or Chapter 154 or 155, Tax Code.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997.
§ 161.090. REPORTS OF VIOLATION. A local or state law
enforcement agency or other governmental unit shall notify the
comptroller, on the 10th day of each month, or the first working day
after that date, of any violation of this subchapter that occurred
in the preceding month that the agency or unit detects,
investigates, or prosecutes.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997.
§ 161.0901. REPORT OF OFFICE OF SMOKING AND HEALTH.
(a) Not later than January 5th of each odd-numbered year the
Office of Smoking and Health of the department shall report to the
governor, lieutenant governor, and the speaker of the house of
representatives on the status of smoking and the use of tobacco and
tobacco products in this state.
(b) The report must include, at a minimum:
(1) a baseline of statistics and analysis regarding
retail compliance with this subchapter, Subchapter K, and Chapters
154 and 155, Tax Code;
(2) a baseline of statistics and analysis regarding
illegal tobacco sales, including:
(A) sales to minors;
(B) enforcement actions concerning minors; and
(C) sources of citations;
(3) tobacco controls and initiatives by the Office of
Smoking and Health of the department, or any other state agency,
including an evaluation of the effectiveness of the controls and
initiatives;
(4) the future goals and plans of the Office of Smoking
and Health of the department to decrease the use of tobacco and
tobacco products;
(5) the educational programs of the Office of Smoking
and Health of the department and the effectiveness of those
programs; and
(6) the incidence of use of tobacco and tobacco
products by regions in this state, including use of cigarettes and
tobacco products by ethnicity.
Added by Acts 1997, 75th Leg., ch. 671, § 1.01, eff. Sept. 1,
1997.
SUBCHAPTER J. EXPOSURE TO LEAD
§ 161.101. TESTS FOR EXPOSURE TO LEAD. (a) At the
request of an attending physician, the department shall conduct
tests for lead poisoning if the physician suspects that a person has
been exposed to lead and that the person may have been harmed by
that exposure.
(b) The department shall charge only for the cost to the
department of conducting the test.
(c) The board shall adopt rules to implement this section.
Acts 1991, 72nd Leg., ch. 695, § 1, eff. Aug. 26, 1991.
SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO PRODUCT
ADVERTISING; FEE
§ 161.121. DEFINITIONS. In this subchapter:
(1) "Church" means a facility that is owned by a
religious organization and that is used primarily for religious
services.
(2) "Cigarette" has the meaning assigned by Section
154.001, Tax Code.
(3) "School" means a private or public elementary or
secondary school.
(4) "Sign" means an outdoor medium, including a
structure, display, light device, figure, painting, drawing,
message, plaque, poster, or billboard, that is:
(A) used to advertise or inform; and
(B) visible from the main-traveled way of a
street or highway.
(5) "Tobacco product" has the meaning assigned by
Section 155.001, Tax Code.
Added by Acts 1993, 73rd Leg., ch. 107, § 5.02(a), eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 671, § 2.01, eff.
Sept. 1, 1997.
§ 161.122. PROHIBITION RELATING TO CERTAIN SIGNS;
EXCEPTIONS. (a) Except as provided by this section, a sign
containing an advertisement for cigarettes or tobacco products may
not be located closer than 1,000 feet to a church or school.
(b) The measurement of the distance between the sign
containing an advertisement for cigarettes or tobacco products and
an institution listed in Subsection (a) is from the nearest
property line of the institution to a point on a street or highway
closest to the sign, along street lines and in direct lines across
intersections.
(c) This section does not apply to a sign located on or in a
facility owned or leased by a professional sports franchise or in a
facility where professional sports events are held at least 10
times during a 12-month period.
(d) In Subsection (c), a "facility" includes a stadium,
arena, or events center and any land or property owned or leased by
the professional sports franchise that is connected to or
immediately contiguous to the stadium, arena, or events center.
(e) Subsection (a) does not apply to a sign containing an
advertisement for cigarettes or tobacco products that, before
September 1, 1997, was located closer than 1,000 feet to a church or
school but that was not located closer than 500 feet to the church
or school.
(f) A person commits an offense if the person places or
authorizes the placement of a sign in violation of this section. An
offense under this subsection is a Class C misdemeanor.
Added by Acts 1993, 73rd Leg., ch. 107, § 5.02(a), eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 671, § 2.01, eff.
Sept. 1, 1997; Acts 2003, 78th Leg., ch. 209, § 1, eff. Oct. 1,
2003.
§ 161.123. ADVERTISING FEE. (a) A purchaser of
advertising is liable for and shall remit to the comptroller a fee
that is 10 percent of the gross sales price of any outdoor
advertising of cigarettes and tobacco products in this state.
(b) The comptroller shall collect the fee and deposit the
money as provided in this section.
(c) The liability for the payment of fees under this section
may not be nullified by contract.
(d) The comptroller shall establish by rule the periods for
collection of the fees and the methods of payment and shall adopt
other rules necessary to administer and enforce this section.
(e) In this section, "gross sales price" means the sum of:
(1) production costs;
(2) media cost; and
(3) cost of sales or commissions paid to an agency or
broker.
Added by Acts 1997, 75th Leg., ch. 671, § 2.01, eff. Sept. 1,
1997.
§ 161.124. USE OF ADVERTISING FEE. (a) The comptroller
shall deposit the fee collected under Section 161.123 to a special
account in the state treasury called the tobacco education and
enforcement education fund.
(b) Money in the account may be appropriated only for
administration and enforcement of this section, enforcement of law
relating to cigarettes and tobacco products, and the education
advertising campaign and grant program established under
Subchapter O, Chapter 161.
Added by Acts 1997, 75th Leg., ch. 671, § 2.01, eff. Sept. 1,
1997.
§ 161.125. ADMINISTRATIVE PENALTY. (a) The
comptroller by order may impose an administrative penalty against a
purchaser of advertising required to comply with Section 161.123
who violates that section or a rule or order adopted under that
section.
(b) The penalty for a violation may be in an amount not to
exceed $5,000. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the amount of fees due and owing;
(2) attempted concealment of misconduct by the person
who committed the violation;
(3) premeditated misconduct by the person who
committed the violation;
(4) intentional misconduct by the person who committed
the violation;
(5) the motive of the person who committed the
violation;
(6) prior misconduct of a similar or related nature by
the person who committed the violation;
(7) prior written warnings or written admonishments
from any government agency or official regarding statutes or
regulations pertaining to the misconduct;
(8) violation by the person who committed the
violation of an order of the comptroller;
(9) lack of rehabilitative potential or likelihood for
future misconduct of a similar nature;
(10) relevant circumstances increasing the
seriousness of the misconduct; and
(11) any other matter justice may require.
(d) The comptroller shall prescribe the procedure by which
the comptroller may impose an administrative penalty under this
section.
(e) A proceeding under this section is subject to Chapter
2001, Government Code.
(f) If the comptroller by order finds that a violation has
occurred and imposes an administrative penalty, the comptroller
shall give notice to the person of the comptroller's order. The
notice must include a statement of the rights of the person to
judicial review of the order.
(g) If the purchaser of advertising does not pay the amount
of the penalty, the comptroller may refer the matter to the attorney
general for collection of the amount of the penalty.
(h) A penalty collected under this section shall be
deposited in the general revenue fund.
Added by Acts 1997, 75th Leg., ch. 671, § 2.01, eff. Sept. 1,
1997.
SUBCHAPTER L. ABUSE, NEGLECT, AND UNPROFESSIONAL OR UNETHICAL
CONDUCT IN HEALTH CARE FACILITIES
§ 161.131. DEFINITIONS. In this subchapter:
(1) "Abuse" has the meaning assigned by the federal
Protection and Advocacy for Mentally Ill Individuals Act of 1986
(42 U.S.C. Section 10801 et seq.).
(2) "Comprehensive medical rehabilitation" means the
provision of rehabilitation services that are designed to improve
or minimize a person's physical or cognitive disabilities, maximize
a person's functional ability, or restore a person's lost
functional capacity through close coordination of services,
communication, interaction, and integration among several
professions that share the responsibility to achieve team treatment
goals for the person.
(3) "Hospital" has the meaning assigned by Section
241.003.
(4) "Illegal conduct" means conduct prohibited by law.
(5) "Inpatient mental health facility" has the meaning
assigned by Section 571.003.
(6) "License" means a state agency permit,
certificate, approval, registration, or other form of permission
required by state law.
(7) "Mental health facility" has the meaning assigned
by Section 571.003.
(8) "Neglect" has the meaning assigned by the federal
Protection and Advocacy for Mentally Ill Individuals Act of 1986
(42 U.S.C. Section 10801 et seq.).
(9) "State health care regulatory agency" means a
state agency that licenses a health care professional.
(10) "Treatment facility" has the meaning assigned by
Section 464.001.
(11) "Unethical conduct" means conduct prohibited by
the ethical standards adopted by state or national professional
organizations for their respective professions or by rules
established by the state licensing agency for the respective
profession.
(12) "Unprofessional conduct" means conduct
prohibited under rules adopted by the state licensing agency for
the respective profession.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
§ 161.132. REPORTS OF ABUSE AND NEGLECT OR OF ILLEGAL,
UNPROFESSIONAL, OR UNETHICAL CONDUCT. (a) A person, including an
employee, volunteer, or other person associated with an inpatient
mental health facility, a treatment facility, or a hospital that
provides comprehensive medical rehabilitation services, who
reasonably believes or who knows of information that would
reasonably cause a person to believe that the physical or mental
health or welfare of a patient or client of the facility who is
receiving chemical dependency, mental health, or rehabilitation
services has been, is, or will be adversely affected by abuse or
neglect caused by any person shall as soon as possible report the
information supporting the belief to the agency that licenses the
facility or to the appropriate state health care regulatory agency.
(b) An employee of or other person associated with an
inpatient mental health facility, a treatment facility, or a
hospital that provides comprehensive medical rehabilitation
services, including a health care professional, who reasonably
believes or who knows of information that would reasonably cause a
person to believe that the facility or an employee of or health care
professional associated with the facility has, is, or will be
engaged in conduct that is or might be illegal, unprofessional, or
unethical and that relates to the operation of the facility or
mental health, chemical dependency, or rehabilitation services
provided in the facility shall as soon as possible report the
information supporting the belief to the agency that licenses the
facility or to the appropriate state health care regulatory agency.
(c) The requirement prescribed by this section is in
addition to the requirements provided by Chapter 261, Family Code,
and Chapter 48, Human Resources Code.
(d) The Texas Board of Mental Health and Mental Retardation,
Texas Board of Health, Texas Commission on Alcohol and Drug Abuse,
and each state health care regulatory agency by rule shall:
(1) prescribe procedures for the investigation of
reports received under Subsection (a) or (b) and for coordination
with and referral of reports to law enforcement agencies or other
appropriate agencies; and
(2) prescribe follow-up procedures to ensure that a
report referred to another agency receives appropriate action.
(e) Each hospital, inpatient mental health facility, and
treatment facility shall prominently and conspicuously post for
display in a public area of the facility that is readily available
to patients, residents, volunteers, employees, and visitors a
statement of the duty to report under this section. The statement
must be in English and in a second language and contain a toll-free
telephone number that a person may call to report.
(f) Each state health care regulatory agency by rule shall
provide for appropriate disciplinary action against a health care
professional licensed by the agency who fails to report as required
by this section.
(g) An individual who in good faith reports under this
section is immune from civil or criminal liability arising from the
report. That immunity extends to participation in an
administrative or judicial proceeding resulting from the report but
does not extend to an individual who caused the abuse or neglect or
who engaged in the illegal, unprofessional, or unethical conduct.
(h) A person commits an offense if the person:
(1) intentionally, maliciously, or recklessly reports
false material information under this section; or
(2) fails to report as required by Subsection (a).
(i) An offense under Subsection (h) is a Class A
misdemeanor.
(j) In this section, "abuse" includes coercive or
restrictive actions that are illegal or not justified by the
patient's condition and that are in response to the patient's
request for discharge or refusal of medication, therapy, or
treatment.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 165, § 7.41, eff.
Sept. 1, 1997.
§ 161.133. MEMORANDUM OF UNDERSTANDING ON INSERVICE
TRAINING. (a) The Texas Board of Mental Health and Mental
Retardation, Texas Board of Health, and Texas Commission on Alcohol
and Drug Abuse by rule shall adopt a joint memorandum of
understanding that requires each inpatient mental health facility,
treatment facility, or hospital that provides comprehensive
medical rehabilitation services to annually provide as a condition
of continued licensure a minimum of eight hours of inservice
training designed to assist employees and health care professionals
associated with the facility in identifying patient abuse or
neglect and illegal, unprofessional, or unethical conduct by or in
the facility.
(b) The memorandum must prescribe:
(1) minimum standards for the training program; and
(2) a means for monitoring compliance with the
requirement.
(c) Each agency shall review and modify the memorandum as
necessary not later than the last month of each state fiscal year.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
§ 161.134. RETALIATION AGAINST EMPLOYEES PROHIBITED.
(a) A hospital, mental health facility, or treatment facility may
not suspend or terminate the employment of or discipline or
otherwise discriminate against an employee for reporting to the
employee's supervisor, an administrator of the facility, a state
regulatory agency, or a law enforcement agency a violation of law,
including a violation of this chapter, a rule adopted under this
chapter, or a rule adopted by the Texas Board of Mental Health and
Mental Retardation, the Texas Board of Health, or the Texas
Commission on Alcohol and Drug Abuse.
(b) A hospital, mental health facility, or treatment
facility that violates Subsection (a) is liable to the person
discriminated against. A person who has been discriminated against
in violation of Subsection (a) may sue for injunctive relief,
damages, or both.
(c) A plaintiff who prevails in a suit under this section
may recover actual damages, including damages for mental anguish
even if an injury other than mental anguish is not shown.
(d) In addition to an award under Subsection (c), a
plaintiff who prevails in a suit under this section may recover
exemplary damages and reasonable attorney fees.
(e) In addition to amounts recovered under Subsections (c)
and (d), a plaintiff is entitled to, if applicable:
(1) reinstatement in the plaintiff's former position;
(2) compensation for lost wages; and
(3) reinstatement of lost fringe benefits or seniority
rights.
(f) A plaintiff suing under this section has the burden of
proof, except that it is a rebuttable presumption that the
plaintiff's employment was suspended or terminated, or that the
employee was disciplined or discriminated against, for making a
report related to a violation if the suspension, termination,
discipline, or discrimination occurs before the 60th day after the
date on which the plaintiff made a report in good faith.
(g) A suit under this section may be brought in the district
court of the county in which:
(1) the plaintiff was employed by the defendant; or
(2) the defendant conducts business.
(h) A person who alleges a violation of Subsection (a) must
sue under this section before the 180th day after the date the
alleged violation occurred or was discovered by the employee
through the use of reasonable diligence.
(i) This section does not abrogate any other right to sue or
interfere with any other cause of action.
(j) Each hospital, mental health facility, and treatment
facility shall prominently and conspicuously post for display in a
public area of the facility that is readily available to patients,
residents, employees, and visitors a statement that employees and
staff are protected from discrimination or retaliation for
reporting a violation of law. The statement must be in English and
in a second language.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
§ 161.135. RETALIATION AGAINST NONEMPLOYEES
PROHIBITED. (a) A hospital, mental health facility, or treatment
facility may not retaliate against a person who is not an employee
for reporting a violation of law, including a violation of this
chapter, a rule adopted under this chapter, or a rule adopted by the
Texas Board of Mental Health and Mental Retardation, the Texas
Board of Health, or the Texas Commission on Alcohol and Drug Abuse.
(b) A hospital, mental health facility, or treatment
facility that violates Subsection (a) is liable to the person
retaliated against. A person who has been retaliated against in
violation of Subsection (a) may sue for injunctive relief, damages,
or both.
(c) A person suing under this section has the burden of
proof, except that it is a rebuttable presumption that the
plaintiff was retaliated against if:
(1) before the 60th day after the date on which the
plaintiff made a report in good faith, the hospital, mental health
facility, or treatment facility:
(A) discriminates in violation of Section
161.134 against a relative who is an employee of the facility;
(B) transfers, disciplines, suspends,
terminates, or otherwise discriminates against the person or a
relative who is a volunteer in the facility or who is employed under
the patient work program administered by the Texas Department of
Mental Health and Mental Retardation;
(C) commits or threatens to commit, without
justification, the person or a relative of the person; or
(D) transfers, discharges, punishes, or
restricts the privileges of the person or a relative of the person
who is receiving inpatient or outpatient services in the facility;
or
(2) a person expected to testify on behalf of the
plaintiff is intentionally made unavailable through an action of
the facility, including a discharge, resignation, or transfer.
(d) A plaintiff who prevails in a suit under this section
may recover actual damages, including damages for mental anguish
even if an injury other than mental anguish is not shown.
(e) In addition to an award under Subsection (c), a
plaintiff who prevails in a suit under this section may recover
exemplary damages and reasonable attorney fees.
(f) A suit under this section may be brought in the district
court of the county in which:
(1) the plaintiff received care or treatment; or
(2) the defendant conducts business.
(g) This section does not abrogate any other right to sue or
interfere with any other cause of action.
(h) Each hospital, mental health facility, and treatment
facility shall prominently and conspicuously post for display in a
public area of the facility that is readily available to patients,
residents, employees, and visitors a statement that nonemployees
are protected from discrimination or retaliation for reporting a
violation of law. The statement must be in English and in a second
language. The sign may be combined with the sign required by
Section 161.134(j).
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
§ 161.136. BROCHURE RELATING TO SEXUAL EXPLOITATION.
(a) A state health care regulatory agency by rule may require a
mental health services provider licensed by that agency to provide
a standardized written brochure, in wording a patient can
understand, that summarizes the law prohibiting sexual
exploitation of patients. The brochure must be available in
English and in a second language.
(b) The brochure shall include:
(1) procedures for filing a complaint relating to
sexual exploitation, including any toll-free telephone number
available; and
(2) the rights of a victim of sexual exploitation.
(c) In this section, "mental health services provider" has
the meaning assigned by Section 81.001, Civil Practice and Remedies
Code.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
§ 161.137. PENALTIES. In addition to the penalties
prescribed by this subchapter, a violation of a provision of this
subchapter by an individual or facility that is licensed by a state
health care regulatory agency is subject to the same consequence as
a violation of the licensing law applicable to the individual or
facility or of a rule adopted under that licensing law.
Added by Acts 1993, 73rd Leg., ch. 573, § 1.01, eff. Sept. 1,
1993.
SUBCHAPTER M. MEDICAL OR MENTAL HEALTH RECORDS
§ 161.201. DEFINITION. In this subchapter, "health care
provider" means a person who is licensed, certified, or otherwise
authorized by the laws of this state to provide or render health
care in the ordinary course of business or practice of a profession.
Added by Acts 1995, 74th Leg., ch. 707, § 1, eff. Aug. 28, 1995.
§ 161.202. FEES. (a) A health care provider or health
care facility may not charge a fee for a medical or mental health
record requested by a patient or former patient, or by an attorney
or other authorized representative of the patient or former
patient, for use in supporting an application for disability
benefits or other benefits or assistance the patient or former
patient may be eligi