Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. The Communicable Disease
Prevention and Control Act, Health and Safety Code, §
81.050,
provides a mechanism by which an emergency response employee or volunteer or
correctional officer who receives a bona fide exposure that places him or her
at risk of a notifiable condition in the course of employment or volunteer
service may request the Department of State Health Services (department) or the
department's designee to order testing of the person who may have exposed the
worker.
(b) Definitions. For the
purposes of this section, the following words and/or terms will have the
following meanings, unless the context clearly indicates otherwise.
(1) Correctional officer--A worker whose
normal duties and responsibilities include management or supervision of
incarcerated or detained persons or an employee, contractor, or volunteer,
other than a correctional officer, who performs a service in a correctional
facility as defined by §
1.07, Penal Code, or
a secure correctional facility or secure detention facility as defined by
§
51.02, Family
Code.
(2) Emergency response
employee or volunteer--An individual acting in the course and scope of
employment or service as a volunteer as emergency medical service personnel, a
peace officer, a detention officer, a county jailer, or a fire fighter, as
defined under Health and Safety Code, §
81.003.
(3) Requestor--An emergency response employee
or volunteer who presents a sworn affidavit to a health authority to request
testing of a person who may have exposed him/her to a notifiable condition in
the course of his/her duties.
(4)
Source--The person who may have exposed an emergency response employee or
volunteer to a notifiable condition during the emergency response employee or
volunteer's course of duties.
(c) Diseases and criteria that constitute
exposure. The notifiable conditions and the criteria that constitute exposure
to such diseases are as outlined in §97.11(c)(1) - (6) of this title
(relating to Notification of Emergency Response Employees, Volunteers, or Other
Persons Providing Emergency Care of Possible Exposure to a Disease).
(d) The department's designee. For the
purposes of implementing the Health and Safety Code, §
81.050(d),
(e), and (h), the following physicians have
been delegated by the department to be the department's designee who will
determine if a risk of exposure to a notifiable condition has occurred:
(1) the health authority for the jurisdiction
in which the emergency response employee or volunteer is employed;
(A) if the health authority does not choose
to make a determination of the risk of exposure, a licensed physician employed
by the local health department who has responsibility for the control of
notifiable conditions in the jurisdiction served by the health department;
or
(B) if the health authority does
not choose to make a determination of the risk of exposure and there is not a
separate physician employed by the county or municipal health department with
responsibility for the control of notifiable condition, or for counties which
do not have an appointed health authority, the regional director of the
department of which the county or municipality is a part; and
(2) for the Texas Department of
Criminal Justice (TDCJ), the TDCJ Deputy Director of Health Services
(Institutional Division) shall serve as the designated health official in
determining risk of exposure to correctional officers employed by the
TDCJ.
(e) Criteria under
which a request for mandatory testing can be made. A request under this section
may be made only if the emergency response employee or volunteer :
(1) has experienced the exposure in the
course of his or her employment or volunteer service;
(2) believes that the exposure places him or
her at risk of a notifiable condition; and
(3) presents to the department's designee a
sworn affidavit that delineates the reasons for the request.
(f) Initial actions required of
the department's designee. Upon receiving a request for mandatory testing in
accordance with subsection (e) of this section, the department's designee
shall:
(1) review the emergency response
employee or volunteer's request and inform him or her whether the request meets
the criteria establishing risk of infection with a notifiable
condition;
(2) determine which
diagnostic tests may be indicated to verify exposure to certain notifiable
conditions;
(3) give the source who
is subject to the order prompt and confidential written notice of the order
which must include the following items:
(A)
the grounds and provision of the order, and the factual basis for its
issuance;
(B) a referral to
appropriate health care facilities where the source can be tested for certain
notifiable conditions;
(C) a notice
to the source who is subject to the order of the right to refuse to be tested;
and
(D) a statement of the
authority of the department's designee to ask for a court order requiring the
test; and
(4) request
the prosecuting attorney who represents the state in district court to petition
said court for a hearing on the order, in the event that the source who is
subject to the order refuses to comply.
(g) Source's right to an attorney. If the
source who is subject to the order refuses to comply, and a hearing in district
court ensues, then:
(1) the source has a
right for an attorney to be present at the hearing;
(2) the court shall appoint an attorney for a
source who cannot afford legal representation; and
(3) the source may not waive the right to an
attorney unless he/she has consulted with an attorney.
(h) Court proceedings. The district court
proceedings include:
(1) a determination as to
whether exposure occurred and whether the exposure presents a possible risk of
infection as outlined in §97.11(c)(1) - (6) of this title;
(2) consideration of evidence if introduced
by either the attorney for the state and/or the attorney for the
source;
(3) at the conclusion of
the hearing, taking appropriate action being either:
(A) an order requiring counseling and testing
of the person for certain notifiable conditions; or
(B) a refusal to issue an order if the court
has determined that the counseling and testing of the source is unnecessary;
and
(4) the option to
assess court costs against the requestor if the court finds that there was not
reasonable cause for the request.
(i) Additional actions required of the
department's designee. The department's designee shall be responsible for the
following actions with respect to testing:
(1) develop protocols for coding test
specimens to ensure that any identifying information concerning the source will
be destroyed as soon as the testing is complete;
(2) inform the requestor of the test
results;
(3) inform both the
requestor and the source of the need for medical follow-up and counseling
services in the event that the source is found to have a notifiable condition;
and
(4) advise appropriate
postexposure medical follow-up as recommended by the United States Public
Health Service.
(j) HIV
counseling and testing. HIV counseling and testing conducted under this section
must conform to the model protocol on HIV counseling and testing required under
the Health and Safety Code, §
85.081.
(k) Workers' compensation issues. For the
purposes of qualifying for workers' compensation or any other similar benefits
for compensation, the following shall apply:
(1) An emergency response employee or
volunteer who claims a possible work-related exposure to a notifiable condition
must provide the employer with a sworn affidavit of the date and circumstances
of the exposure and document that, not later than the tenth day after the date
of the exposure, the emergency response employee or volunteer had a test result
that indicated an absence of the notifiable condition.
(2) An emergency response employee or
volunteer exposed to a notifiable condition during the course of employment
shall be entitled to the benefits described in the Government Code, Chapter
607.
(3) A state emergency response
employee or volunteer claiming an exposure to HIV infection in the normal
course of his/her duties must follow the postexposure procedure mandated by the
Health and Safety Code, § 85.116, and §
97.140
of this title (relating to Counseling and Testing for State Employees Exposed
to Human Immunodeficiency Virus (HIV) Infection on the Job).
(4) For posting and notice requirements,
refer to the rules of the Texas Department of Insurance, Division of Workers'
Compensation in Title 28, Texas Administrative Code, Chapter 110 (Required
Notices of Coverage).
(5) For
further clarification of workers' compensation issues, emergency response
employees or volunteers and their employers should contact the Texas Department
of Insurance, Division of Workers' Compensation at 1-800-252-7031.
(l) Testing of the exposed person.
An emergency response employee or volunteer who may have been exposed to a
notifiable condition, may not be required to be tested.
