H.B. No. 988
    1-1                                AN ACT
    1-2  relating to home collection kits for human immunodeficiency virus
    1-3  infection testing; providing penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Chapter 85, Health and Safety Code, is amended by
    1-6  adding Subchapter J to read as follows:
    1-7     SUBCHAPTER J.  HOME COLLECTION KITS FOR HIV INFECTION TESTING
    1-8        Sec. 85.251.  DEFINITIONS.  In this subchapter:
    1-9              (1)  "Home collection kit" means a product sold to the
   1-10  general public and used by an individual to collect a specimen from
   1-11  the human body and to submit the specimen to a laboratory for
   1-12  testing and a report.
   1-13              (2)  "Service provider" means the manufacturer of a
   1-14  home collection kit or a person designated by the manufacturer to
   1-15  provide the services required by this subchapter.
   1-16        Sec. 85.252.  PROHIBITIONS RELATING TO HOME COLLECTION KIT.
   1-17  A person may not market, distribute, or sell a home collection kit
   1-18  for HIV infection testing in this state unless the kit complies
   1-19  with Chapter 431.
   1-20        Sec. 85.253.  PROHIBITIONS RELATING TO HOME TESTING.  (a)  A
   1-21  person may not market, distribute, or sell a product to be used by
   1-22  a member of the public to test a specimen collected from the human
   1-23  body for HIV infection unless the kit complies with Chapter 431.
   1-24        (b)  This section does not apply to a product marketed,
    2-1  distributed, or sold only to physicians or other persons authorized
    2-2  by law to test for HIV infection a specimen collected from the
    2-3  human body.
    2-4        (c)  A person may not require an individual to be tested for
    2-5  HIV infection as provided in Section 81.102.
    2-6        Sec. 85.254.  PACKAGE OF SERVICES.  A home collection kit for
    2-7  HIV infection testing shall be sold as part of a package of
    2-8  services that includes:
    2-9              (1)  laboratory testing by a qualified facility;
   2-10              (2)  reporting of test results;
   2-11              (3)  verification of positive test results;
   2-12              (4)  counseling as required by this subchapter; and
   2-13              (5)  information, upon request, describing how test
   2-14  results and related information are stored by the service provider,
   2-15  how long the information is retained, and under what circumstances
   2-16  the information may be communicated to other persons.
   2-17        Sec. 85.255.  QUALIFIED FACILITY.  A laboratory facility that
   2-18  conducts testing of a specimen collected with a home collection kit
   2-19  for HIV infection testing must comply with the Clinical Laboratory
   2-20  Improvement Amendments of 1988 (42 U.S.C. Section 263a).
   2-21        Sec. 85.256.  ORAL REPORTING.  A service provider shall
   2-22  report test results from a home collection kit for HIV infection
   2-23  testing orally to the individual tested.  Notwithstanding Section
   2-24  81.109, the test results may be provided by telephone.
   2-25        Sec. 85.257.  COUNSELING; COUNSELING PROTOCOLS.  (a)  A
   2-26  service provider shall provide pretesting counseling to an
   2-27  individual who is considering using a home collection kit for HIV
    3-1  infection testing.  This counseling may be provided orally by
    3-2  telephone or through written information included with the home
    3-3  collection kit.
    3-4        (b)  At the time the test results are reported to the
    3-5  individual tested, the service provider shall provide counseling
    3-6  and appropriate referrals for care and treatment.
    3-7        (c)  Counseling provided by a service provider, including
    3-8  written information provided under Subsection (a) and referrals,
    3-9  must conform with counseling protocols adopted by the board.
   3-10  Except as provided by Section 85.256, the counseling protocols must
   3-11  be consistent with the requirements of Section 81.109 and the
   3-12  protocols adopted under Section 85.081.
   3-13        (d)  Counseling provided by a service provider under this
   3-14  section must be provided in English and in Spanish.  The board may
   3-15  require a service provider to provide counseling in another
   3-16  language if the board finds that the service provider is marketing
   3-17  home collection kits in a community in which a significant portion
   3-18  of the population speaks a language other than English or Spanish.
   3-19        (e)  A service provider, in providing counseling, may not:
   3-20              (1)  solicit the purchase of additional services or
   3-21  products; or
   3-22              (2)  refer the individual being counseled to an entity:
   3-23                    (A)  that is owned or controlled by the service
   3-24  provider;
   3-25                    (B)  that owns or controls the service provider;
   3-26                    (C)  that is owned or controlled by an entity
   3-27  that owns or controls the service provider; or
    4-1                    (D)  that has another ongoing financial
    4-2  relationship with the service provider.
    4-3        Sec. 85.258.  LABELING.  (a)  A home collection kit for HIV
    4-4  infection testing shall meet the requirements of Chapter 431.
    4-5        (b)  In addition to the requirements in Subsection (a), the
    4-6  labeling shall explain which persons and entities will have access
    4-7  to the test results for the individual.
    4-8        (c)  In addition to the labeling requirements in Subsections
    4-9  (a) and (b), a home collection kit labeled in Spanish must also be
   4-10  available.  The board may require a service provider to label a
   4-11  home collection kit in another language if the board finds that the
   4-12  service provider is marketing home collection kits in a community
   4-13  in which a significant portion of the population speaks a language
   4-14  other than English or Spanish.
   4-15        Sec. 85.259.  ENFORCEMENT.  A home collection kit for HIV
   4-16  infection testing is a "device" as that term is defined in Section
   4-17  431.002 and is subject to the provisions for enforcement contained
   4-18  in Chapter 431.  Any violation of the requirement in Section 85.258
   4-19  shall be subject to the enforcement provisions of Chapter 431.
   4-20        Sec. 85.260.  CONFIDENTIALITY.  (a)  Any statement that an
   4-21  identifiable individual has or has not been tested with a home
   4-22  collection kit for HIV infection testing, including a statement or
   4-23  assertion that the individual is positive, is negative, is at risk,
   4-24  or has or does not have a certain level of antigen or antibody, is
   4-25  confidential as provided by Section 81.103.
   4-26        (b)  A person commits an offense if the person violates this
   4-27  section.  The punishment for an offense under this section is the
    5-1  same as the punishment for an offense under Section 81.103.
    5-2        Sec. 85.261.  CERTAIN TECHNOLOGY PROHIBITED.  A service
    5-3  provider may not use technology that permits the service provider
    5-4  to identify an individual to whom test results or counseling is
    5-5  provided or to identify the telephone number from which that
    5-6  individual is calling.
    5-7        Sec. 85.262.  REPORTS.  A service provider shall report test
    5-8  results from a home collection kit for HIV infection testing in the
    5-9  manner provided by Subchapter C, Chapter 81.
   5-10        SECTION 2.  (a)  The legislature encourages manufacturers of
   5-11  home collection kits for human immunodeficiency virus infection
   5-12  testing to make the kits available, at reduced cost, to appropriate
   5-13  nonprofit organizations for use in human immunodeficiency virus
   5-14  infection testing and counseling programs.
   5-15        (b)  It is the intent of the legislature that the use of home
   5-16  collection kits for human immunodeficiency virus infection shall
   5-17  not affect the accessibility of anonymous testing programs
   5-18  established by the Texas Department of Health.
   5-19        SECTION 3.  The importance of this legislation and the
   5-20  crowded condition of the calendars in both houses create an
   5-21  emergency and an imperative public necessity that the
   5-22  constitutional rule requiring bills to be read on three several
   5-23  days in each house be suspended, and this rule is hereby suspended,
   5-24  and that this Act take effect and be in force from and after its
   5-25  passage, and it is so enacted.