Texas 2023 - 88th Regular

Texas House Bill HB81 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R20392 JG-D
2	2	By: Harrison, Klick, Frank, Jones of Dallas, H.B. No. 81
3	3	et al.
4	4	Substitute the following for H.B. No. 81:
5	5	By: Klick C.S.H.B. No. 81
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to informed consent before provision of certain medical
11	11	treatments and exemptions from COVID-19 vaccination requirements.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. This Act shall be known as the Texas COVID-19
14	14	Vaccine Freedom Act.
15	15	SECTION 2. The legislature finds that:
16	16	(1) this state is responsible for ensuring that
17	17	individuals lawfully residing in this state have the right to
18	18	provide or withhold consent for any medical treatment;
19	19	(2) the decision in Canterbury v. Spence, 464 F.2d 772
20	20	(D.C. Cir. 1972), establishing the concept of informed consent, has
21	21	become a bedrock principle of the laws of this country and of each
22	22	state;
23	23	(3) the American Medical Association's Code of Medical
24	24	Ethics Opinion 2.1.1 recognizes the right of an individual to be
25	25	fully informed of a recommended medical treatment to allow the
26	26	individual to make an informed decision regarding the individual's
27	27	course of treatment, including whether to obtain or decline a
28	28	particular medical treatment;
29	29	(4) under 42 C.F.R. Section 482.13, a hospital is
30	30	required as a condition of participation in Medicare to have in
31	31	place a process for obtaining the informed consent of a patient
32	32	before providing treatment to the patient and to ensure "[t]he
33	33	patient or his or her representative (as allowed under State law)
34	34	has the right to make informed decisions regarding his or her care";
35	35	(5) the United States Supreme Court upheld mandatory
36	36	vaccination policies imposed by state and local governments to
37	37	combat smallpox in Jacobson v. Massachusetts, 197 U.S. 11 (1905),
38	38	and acknowledged in Pruneyard Shopping Center v. Robins, 447 U.S.
39	39	74, 81 (1980), that a state may provide "individual liberties more
40	40	expansive than those conferred by the Federal Constitution";
41	41	(6) persons inside and outside this state have sought
42	42	or are seeking to compel or coerce individuals lawfully residing in
43	43	this state into obtaining a COVID-19 vaccine contrary to the
44	44	individuals' preferences;
45	45	(7) any attempt to compel or coerce an individual
46	46	lawfully residing in this state into obtaining a COVID-19 vaccine
47	47	contrary to the individual's preference is inconsistent with the
48	48	principles of informed consent;
49	49	(8) federal regulations requiring an individual who
50	50	works or receives training in a health care facility, including a
51	51	hospital, to obtain a COVID-19 vaccine provide an exemption from
52	52	the vaccination requirement for individuals with a sincerely held
53	53	religious belief, observance, or practice that is incompatible with
54	54	the administration of the vaccine or a recognized medical condition
55	55	for which vaccines are contraindicated; and
56	56	(9) Section 161.0086, Health and Safety Code, as added
57	57	by this Act, prohibits any person from compelling or coercing an
58	58	individual lawfully residing in this state into obtaining medical
59	59	treatments involving the administration of a COVID-19 vaccine,
60	60	except as otherwise provided by the final rule adopted by the
61	61	Centers for Medicare and Medicaid Services and published at 86 Fed.
62	62	Reg. 61555 (November 5, 2021).
63	63	SECTION 3. Subchapter A, Chapter 161, Health and Safety
64	64	Code, is amended by adding Section 161.0086 to read as follows:
65	65	Sec. 161.0086. INFORMED CONSENT AND MEDICAL TREATMENT
66	66	EXEMPTIONS FOR COVID-19 VACCINATION. (a) In this section:
67	67	(1) "COVID-19" means the 2019 novel coronavirus
68	68	disease.
69	69	(2) "Health care facility" means a facility that is a
70	70	provider of services, as defined by Section 1861, Social Security
71	71	Act (42 U.S.C. Section 1395x).
72	72	(3) "Health care provider" means an individual
73	73	licensed or otherwise authorized by this state to administer
74	74	vaccines.
75	75	(b) A person may not compel or coerce an individual lawfully
76	76	residing in this state into obtaining a medical treatment involving
77	77	the administration of a COVID-19 vaccine, including a COVID-19
78	78	vaccine approved or authorized by the United States Food and Drug
79	79	Administration, contrary to the individual's vaccination
80	80	preference.
81	81	(c) A health care provider may not provide to an individual
82	82	lawfully residing in this state a medical treatment involving the
83	83	administration of a COVID-19 vaccine, including a COVID-19 vaccine
84	84	approved or authorized by the United States Food and Drug
85	85	Administration, unless the provider obtains the individual's
86	86	informed consent before administering the COVID-19 vaccine.
87	87	(d) For purposes of this section:
88	88	(1) an individual lacks the capacity to provide
89	89	informed consent for a medical treatment involving the
90	90	administration of a COVID-19 vaccine if the individual has been
91	91	compelled or coerced into obtaining a COVID-19 vaccine contrary to
92	92	the individual's vaccination preference; and
93	93	(2) a health care provider who advises or recommends
94	94	the administration of a COVID-19 vaccine is not considered to have
95	95	compelled or coerced an individual into obtaining a COVID-19
96	96	vaccine based solely on that advice or recommendation.
97	97	(e) A person may not take an adverse action or impose a
98	98	penalty of any kind against an individual lawfully residing in this
99	99	state for the individual's refusal or failure to obtain a medical
100	100	treatment involving the administration of a COVID-19 vaccine.
101	101	(f) The prohibitions under Subsections (b), (c), and (e)
102	102	apply only to the extent the prohibitions do not conflict with the
103	103	final rule adopted by the Centers for Medicare and Medicaid
104	104	Services and published at 86 Fed. Reg. 61555 (November 5, 2021).
105	105	(g) An individual employed by or providing services or
106	106	receiving training in a health care facility that requires the
107	107	individual to obtain a COVID-19 vaccination is exempt from the
108	108	vaccination requirement if the individual requests orally or in
109	109	writing an exemption in accordance with federal law based on:
110	110	(1) a sincerely held religious belief, observance, or
111	111	practice that is incompatible with the administration of the
112	112	vaccine; or
113	113	(2) a recognized medical condition for which vaccines
114	114	are contraindicated.
115	115	(h) The attorney general may bring an action for injunctive
116	116	relief against a person to prevent the person from violating this
117	117	section. In an injunction issued under this subsection, a court may
118	118	include reasonable requirements to prevent further violations of
119	119	this section.
120	120	(i) A health care provider who violates Subsection (c) is
121	121	liable to the individual who is the subject of the violation for
122	122	damages in an amount of not less than $5,000. The prevailing party
123	123	in an action brought under this subsection may recover reasonable
124	124	expenses incurred as a result of the action, including court costs,
125	125	reasonable attorney's fees, investigation costs, witness fees, and
126	126	deposition expenses.
127	127	(j) A health care provider may assert an affirmative defense
128	128	to an action brought under Subsection (i) that the individual or an
129	129	individual legally authorized to consent on behalf of the
130	130	individual stated to the provider before the COVID-19 vaccine was
131	131	administered that the informed consent was voluntarily provided.
132	132	SECTION 4. Section 161.0086, Health and Safety Code, as
133	133	added by this Act, applies only to conduct that occurs on or after
134	134	the effective date of this Act.
135	135	SECTION 5. If any provision of this Act or its application
136	136	to any person or circumstance is held invalid, the invalidity does
137	137	not affect other provisions or applications of this Act that can be
138	138	given effect without the invalid provision or application, and to
139	139	this end the provisions of this Act are declared severable.
140	140	SECTION 6. This Act takes effect immediately if it receives
141	141	a vote of two-thirds of all the members elected to each house, as
142	142	provided by Section 39, Article III, Texas Constitution. If this
143	143	Act does not receive the vote necessary for immediate effect, this
144	144	Act takes effect September 1, 2023.