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.     * * * * *