By: Price, et al. (Senate Sponsor - Kolkhorst) H.B. No. 1105
(In the Senate - Received from the House May 8, 2023;
May 11, 2023, read first time and referred to Committee on Health &
Human Services; May 21, 2023, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 2;
May 21, 2023, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 1105 By: Kolkhorst
A BILL TO BE ENTITLED
AN ACT
relating to preventative health care and public health, including
prohibited immunization and face-covering requirements, private
business or school closures, and the ordering and administration of
immunizations by a pharmacist.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 38.001, Education Code, is amended by
amending Subsections (a) and (b-1) and adding Subsection (b-2) to
read as follows:
(a) Except as provided by Subsection (c), each [Each]
student shall be fully immunized against the diseases listed in
Section 161.004, Health and Safety Code [diphtheria, rubeola,
rubella, mumps, tetanus, and poliomyelitis, except as provided by
Subsection (c)].
(b-1) Each year, the Department of State Health Services
shall prepare a list of the immunizations required [under this
section] for admission to public schools [and of any additional
immunizations the department recommends for school-age children].
The department shall prepare the list in English and Spanish and
make the list available in a manner that permits a school district
to easily post the list on the district's Internet website as
required by Section 38.019.
(b-2) An elementary or secondary school may not require a
student, as a condition of the student's admission to or continued
enrollment in the school, to be vaccinated against the 2019 novel
coronavirus disease (COVID-19).
SECTION 2. Section 38.019(a), Education Code, is amended to
read as follows:
(a) A school district that maintains an Internet website
shall post prominently on the website:
(1) a list, in English and Spanish, of:
(A) the immunizations required for admission to
public school in accordance with [by rules of the Department of
State Health Services adopted under] Section 38.001; and
(B) [any immunizations or vaccines recommended
for public school students by the Department of State Health
Services; and
[(C)] health clinics in the district that offer
the influenza vaccine, to the extent those clinics are known to the
district; and
(2) a link to the page on the Department of State
Health Services Internet website that provides [where a person may
obtain] information relating to the procedures for claiming an
exemption from the immunization requirements of Section 38.001.
SECTION 3. Subchapter Z, Chapter 51, Education Code, is
amended by adding Section 51.91921 to read as follows:
Sec. 51.91921. PROHIBITION ON PRIVATE OR INDEPENDENT
INSTITUTIONS OF HIGHER EDUCATION MANDATING COVID-19 VACCINATION
FOR STUDENTS. (a) In this section:
(1) "COVID-19" means the 2019 novel coronavirus
disease, including any variant.
(2) "Private or independent institution of higher
education" has the meaning assigned by Section 61.003.
(b) A private or independent institution of higher
education may not require a student, as a condition of the student's
admission to or continued enrollment in the institution, to be
vaccinated against COVID-19.
SECTION 4. Section 51.933, Education Code, is amended by
amending Subsections (b) and (b-1) and adding Subsection (b-2) to
read as follows:
(b) The executive commissioner of the Health and Human
Services Commission may require a student at an institution of
higher education who is pursuing a course of study in a human or
animal health profession to be immunized [immunizations] against
the diseases listed in Subsection (a) and against hepatitis B,
measles, rabies, and varicella, as applicable. The [additional
diseases for students at any institution of higher education who
are pursuing a course of study in a human or animal health
profession, and the] executive commissioner may require those
immunizations for any students in times of an emergency or epidemic
in a county where the commissioner of state health services has
declared such an emergency or epidemic.
(b-1) A requirement [rule adopted] under Subsection (b) for
[that requires] a student to be immunized against hepatitis B
[vaccination for students] may apply only to students enrolled in a
course of study that involves potential exposure to human or animal
blood or bodily fluids.
(b-2) An institution of higher education may not require a
student, as a condition of the student's admission to or continued
enrollment in the institution, to be vaccinated against COVID-19 as
defined by Section 51.91921.
SECTION 5. Sections 81.023(a) and (c), Health and Safety
Code, are amended to read as follows:
(a) The executive commissioner may recommend to the
legislature immunizations to include on the list of immunizations
required [department shall develop immunization requirements] for
children under Section 161.004.
(c) The department shall cooperate with the State Board of
Education in [formulating and] implementing immunization
requirements for students admitted to public or private primary or
secondary schools.
SECTION 6. Subtitle D, Title 2, Health and Safety Code, is
amended by adding Chapter 81B to read as follows:
CHAPTER 81B. PROHIBITED CORONAVIRUS PREVENTATIVE MEASURES
Sec. 81B.001. DEFINITIONS. In this chapter:
(1) "COVID-19" means the 2019 novel coronavirus
disease and any variants of the disease.
(2) "Governmental entity" means this state, a local
government entity as defined by Section 418.004, Government Code,
or an agency of this state or a local government entity.
Sec. 81B.002. PROHIBITED FACE-COVERING MANDATE.
Notwithstanding any other law, including Chapter 81 of this code
and Chapter 418, Government Code, a governmental entity may not
implement, order, or otherwise impose a mandate requiring a person
to wear a face mask or other face covering to prevent the spread of
COVID-19.
Sec. 81B.003. PROHIBITED VACCINE MANDATE. Notwithstanding
any other law, including Chapter 81 of this code and Chapter 418,
Government Code, a governmental entity may not implement, order, or
otherwise impose a mandate requiring a person to be vaccinated
against COVID-19.
Sec. 81B.004. PROHIBITED CLOSURE MANDATE FOR PRIVATE
BUSINESSES AND SCHOOLS. Notwithstanding any other law, including
Chapter 81 of this code and Chapter 418, Government Code, a
governmental entity may not implement, order, or otherwise impose a
mandate requiring the closure of a private business, public school,
open-enrollment charter school, or private school to prevent the
spread of COVID-19.
SECTION 7. Section 161.004(a), Health and Safety Code, is
amended to read as follows:
(a) Every child in the state shall be immunized against
diphtheria, hepatitis A, hepatitis B, measles, meningococcal
disease, mumps, pertussis, polio, rubella, tetanus, and varicella
[vaccine preventable diseases caused by infectious agents] in
accordance with the [immunization] schedule prescribed [adopted]
in department rules. The executive commissioner may not require
immunizations against any additional diseases for students
admitted to a public or private primary or secondary school.
SECTION 8. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 174 to read as follows:
CHAPTER 174. PATIENT RIGHTS
Sec. 174.001. DEFINITIONS. In this chapter:
(1) "COVID-19" has the meaning assigned by Section
81B.001.
(2) "Health care facility" means a hospital,
freestanding emergency medical care facility, urgent care or retail
clinic, outpatient clinic, birthing center, ambulatory surgical
center, or other facility that is licensed to provide health care
services in this state.
Sec. 174.002. PROHIBITED DISCRIMINATION BASED ON COVID-19
VACCINATION STATUS. (a) Except as provided by Subsection (b), a
health care facility may not refuse to provide health care services
to an individual based on the individual's vaccination status or
post-transmission recovery of COVID-19.
(b) The prohibition under Subsection (a) does not apply to a
hospital that requires a COVID-19 vaccination in relation to
oncology or transplant care.
Sec. 174.003. MEDICAID REIMBURSEMENT PROHIBITED. (a) The
commission:
(1) may not provide Medicaid reimbursement to a health
care facility that violates this chapter; and
(2) shall disenroll the facility from participation as
a Medicaid provider.
(b) The executive commissioner may adopt rules as necessary
to implement this section.
SECTION 9. Chapter 21, Labor Code, is amended by adding
Subchapter H-1 to read as follows:
SUBCHAPTER H-1. DISCRIMINATION BASED ON COVID-19 VACCINATION
STATUS
Sec. 21.421. DEFINITION. In this subchapter, "COVID-19"
has the meaning assigned by Section 81B.001, Health and Safety
Code.
Sec. 21.422. PROHIBITED DISCRIMINATION BASED ON COVID-19
VACCINATION STATUS. (a) Except as provided by Subsection (d), an
employer commits an unlawful employment practice if the employer
fails or refuses to hire, discharges, or otherwise discriminates
against an individual with respect to the compensation or the
terms, conditions, or privileges of employment because the
individual has not been vaccinated against COVID-19.
(b) A labor organization commits an unlawful employment
practice if the labor organization excludes or expels from
membership or otherwise discriminates against an individual
because the individual has not been vaccinated against COVID-19.
(c) An employment agency commits an unlawful employment
practice if the employment agency classifies or refers for
employment, fails or refuses to refer for employment, or otherwise
discriminates against an individual because the individual has not
been vaccinated against COVID-19.
(d) This section does not apply to:
(1) a health care facility, as defined by Section
224.001, Health and Safety Code, that:
(A) implements a policy or procedure to exempt
from a required vaccination an individual described by this section
who has a medical condition identified as a contraindication or
precaution to the vaccination by the Centers for Disease Control
and Prevention;
(B) establishes procedures that an exempt
individual is required to follow to protect facility patients from
exposure to disease, including the use of gloves, face masks, or
other protective medical equipment, based on the level of risk the
individual presents to patients by the individual's routine and
direct exposure to patients; and
(C) prohibits discrimination or retaliatory
action against an exempt individual, except that the required use
of protective medical equipment under Paragraph (B) is not
considered a retaliatory action for purposes of this paragraph; or
(2) a private employer that:
(A) implements a policy or procedure to exempt
from a required vaccination an individual described by this section
based on reasons of conscience or because the individual has a
medical condition identified as a contraindication or precaution to
the vaccination by the Centers for Disease Control and Prevention;
(B) establishes procedures that an exempt
individual is required to follow to protect employees and other
individuals from exposure to disease, including the use of gloves,
face masks, or other protective medical equipment, based on the
level of risk the individual presents to employees and other
individuals by the individual's routine and direct exposure to
employees and other individuals; and
(C) prohibits discrimination or retaliatory
action against an exempt individual, except that the required use
of protective medical equipment under Paragraph (B) is not
considered a retaliatory action for purposes of this paragraph.
SECTION 10. Section 551.003(33), Occupations Code, is
amended to read as follows:
(33) "Practice of pharmacy" means:
(A) providing an act or service necessary to
provide pharmaceutical care;
(B) interpreting or evaluating a prescription
drug order or medication order;
(C) participating in drug or device selection as
authorized by law, and participating in drug administration, drug
regimen review, or drug or drug-related research;
(D) providing patient counseling;
(E) being responsible for:
(i) dispensing a prescription drug order or
distributing a medication order;
(ii) compounding or labeling a drug or
device, other than labeling by a manufacturer, repackager, or
distributor of a nonprescription drug or commercially packaged
prescription drug or device;
(iii) properly and safely storing a drug or
device; or
(iv) maintaining proper records for a drug
or device;
(F) performing for a patient a specific act of
drug therapy management delegated to a pharmacist by a written
protocol from a physician licensed in this state in compliance with
Subtitle B; [or]
(G) subject to Section 554.052(c-1), ordering or
administering an immunization or vaccination to a patient who is at
least three years of age; or
(H) if the patient is younger than three years of
age and is referred to a pharmacist by a physician, administering an
immunization or vaccination to a patient under a physician's
written protocol.
SECTION 11. The heading to Section 554.004, Occupations
Code, is amended to read as follows:
Sec. 554.004. ADMINISTRATION OF MEDICATION; ORDERING AND
ADMINISTRATION OF IMMUNIZATION OR VACCINATION.
SECTION 12. Section 554.004(a), Occupations Code, is
amended to read as follows:
(a) The board shall specify conditions under which a
pharmacist may administer medication and order or administer [,
including] an immunization or [and] vaccination. The conditions
for ordering or administering an immunization or vaccination must
ensure that:
(1) [a licensed health care provider authorized to
administer the medication is not reasonably available to administer
the medication;
[(2) failure to administer the medication, other than
an immunization or vaccination, might result in a significant delay
or interruption of a critical phase of drug therapy;
[(3)] the pharmacist possesses the necessary skill,
education, and certification as specified by the board to order or
administer the immunization or vaccination [medication];
(2) [(4)] within a reasonable time after
administering an immunization or vaccination that is prescribed by
a licensed health care provider [medication], the pharmacist
notifies the licensed health care provider responsible for the
patient's care that the immunization or vaccination [medication]
was administered;
[(5) the pharmacist may not administer medication to a
patient at the patient's residence, except at a licensed nursing
home or hospital;
[(6) the pharmacist administers an immunization or
vaccination under a physician's written protocol and meets the
standards established by the board;] and
(3) [(7)] the authority of a pharmacist to administer
an immunization or vaccination [medication] may [not] be delegated
to a certified pharmacy technician.
SECTION 13. Sections 554.052(a), (b), (c), and (c-1),
Occupations Code, are amended to read as follows:
(a) The board by rule shall require a pharmacist to notify a
physician who prescribes an immunization or vaccination not later
than the 14th day [within 24 hours] after the date the pharmacist
administers the immunization or vaccination.
(b) The board shall establish minimum education and
continuing education standards for a pharmacist who orders or
administers an immunization or vaccination. The standards must
include federal Centers for Disease Control and Prevention
training, basic life support training, and hands-on training in
techniques for administering immunizations and vaccinations.
(c) Supervision by a physician is adequate if the delegating
physician:
(1) is responsible for formulating or approving an
order or protocol, including the physician's order, standing
medical order, or standing delegation order, and periodically
reviews the order or protocol and the services provided to a patient
under the order or protocol;
(2) [except as provided by Subsection (c-1),] has
established a physician-patient relationship with each patient who
is younger than three [under 14] years of age and referred the
patient to the pharmacist;
(3) is geographically located to be easily accessible
to the pharmacy where an immunization or vaccination is
administered;
(4) receives, as appropriate, a periodic status report
on the patient, including any problem or complication encountered;
and
(5) is available through direct telecommunication for
consultation, assistance, and direction.
(c-1) A pharmacist may order or administer an immunization
or [influenza] vaccination to a patient who is at least three [over
seven] years of age without an established physician-patient
relationship if the immunization or vaccination is:
(1) authorized or approved by the United States Food
and Drug Administration or listed in the routine immunization
schedule recommended by the federal Advisory Committee on
Immunization Practices published by the federal Centers for Disease
Control and Prevention; and
(2) ordered or administered in accordance with the
federal Advisory Committee on Immunization Practices
vaccine-specific recommendations.
SECTION 14. Section 38.001(b), Education Code, as amended
by Chapters 43 (H.B. 1098) and 94 (H.B. 1059), Acts of the 80th
Legislature, Regular Session, 2007, is repealed.
SECTION 15. (a) The changes in law made by this Act to
Title 2, Education Code, apply beginning with the 2023-2024 school
year.
(b) The changes in law made by this Act to Title 3, Education
Code, apply beginning with the 2023-2024 academic year.
SECTION 16. Subchapter H-1, Chapter 21, Labor Code, as
added by this Act, applies only to an unlawful employment practice
that occurs on or after the effective date of this Act.
SECTION 17. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 18. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2023.
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