By Maxey                                               H.B. No. 988
       74R4637 DLF-D
                                 A BILL TO BE ENTITLED
    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, the
   1-19  marketing, distribution, and sale of the kit, and the laboratory
   1-20  testing and reporting for the kit comply with this subchapter.
   1-21        Sec. 85.253.  PROHIBITIONS RELATING TO HOME TESTING.  (a)  A
   1-22  person may not market, distribute, or sell a product to be used by
   1-23  a member of the public to test a specimen collected from the human
   1-24  body for HIV infection.
    2-1        (b)  This section does not apply to a product marketed,
    2-2  distributed, or sold only to physicians or other persons authorized
    2-3  by law to test for HIV infection a specimen collected from the
    2-4  human body.
    2-5        Sec. 85.254.  PACKAGE OF SERVICES.  A home collection kit for
    2-6  HIV infection testing shall be sold as part of a package of
    2-7  services that includes:
    2-8              (1)  laboratory testing by a qualified facility;
    2-9              (2)  reporting of test results;
   2-10              (3)  verification of positive test results; and
   2-11              (4)  counseling as required by this subchapter.
   2-12        Sec. 85.255.  QUALIFIED FACILITY.  The board shall adopt
   2-13  rules governing the requirements for a laboratory facility that
   2-14  conducts testing of a specimen collected with a home collection kit
   2-15  for HIV infection testing.  The facility shall use testing methods
   2-16  approved by the United States Food and Drug Administration.
   2-17        Sec. 85.256.  ORAL REPORTING.  A service provider shall
   2-18  report test results from a home collection kit for HIV infection
   2-19  testing orally to the individual tested.  Notwithstanding Section
   2-20  81.109, the test results may be provided by telephone.
   2-21        Sec. 85.257.  COUNSELING; COUNSELING PROTOCOLS.  (a)  A
   2-22  service provider shall provide pretesting counseling to an
   2-23  individual who is considering using a home collection kit for HIV
   2-24  infection testing.  This counseling may be provided orally by
   2-25  telephone or through written information included with the home
   2-26  collection kit.
   2-27        (b)  At the time the test results are reported to the
    3-1  individual tested, the service provider shall provide counseling
    3-2  and appropriate referrals for care and treatment.
    3-3        (c)  Counseling provided by a service provider, including
    3-4  written information provided under Subsection (a) and referrals,
    3-5  must conform with counseling protocols adopted by the board.
    3-6  Except as provided by Section 85.256, the counseling protocols must
    3-7  be consistent with the requirements of Section 81.109 and the
    3-8  protocols adopted under Section 85.081.
    3-9        (d)  Counseling provided by a service provider under this
   3-10  section must be provided in English and in Spanish.  The board may
   3-11  require a service provider to provide counseling in another
   3-12  language if the board finds that the service provider is marketing
   3-13  home collection kits in a community in which a significant portion
   3-14  of the population speaks a language other than English or Spanish.
   3-15        (e)  A service provider, in providing counseling, may not:
   3-16              (1)  solicit the purchase of additional services or
   3-17  products; and
   3-18              (2)  refer the individual being counseled to an entity:
   3-19                    (A)  that is owned or controlled by the service
   3-20  provider;
   3-21                    (B)  that owns or controls the service provider;
   3-22                    (C)  that is owned or controlled by an entity
   3-23  that owns or controls the service provider; or
   3-24                    (D)  that has another ongoing financial
   3-25  relationship with the service provider.
   3-26        Sec. 85.258.  LABELING.  (a)  The board by rule shall adopt
   3-27  labeling requirements for home collection kits for HIV infection
    4-1  testing.
    4-2        (b)  The labeling requirements must:
    4-3              (1)  state any limitations on the appropriate use of
    4-4  the kit for particular individuals, including any limitation on the
    4-5  age of the individual from whom a specimen is to be collected;
    4-6              (2)  describe any procedures necessary for safe use of
    4-7  the kit;
    4-8              (3)  state legal prohibitions against an employer or
    4-9  other person requiring an individual to be tested for HIV
   4-10  infection, including the prohibition of Section 81.102, and refer
   4-11  the individual to appropriate sources for additional information on
   4-12  these prohibitions;
   4-13              (4)  explain which persons and entities will have
   4-14  access to the test results for the individual;
   4-15              (5)  describe how the individual will be advised of the
   4-16  test results; and
   4-17              (6)  describe how test results and related information
   4-18  are stored by the service provider, how long the information is
   4-19  retained, and under what circumstances the information may be
   4-20  communicated to other persons.
   4-21        (c)  Each home collection kit must be labeled as required by
   4-22  this section in English and in Spanish.  The board may require a
   4-23  service provider to label a home collection kit in another language
   4-24  if the board finds that the service provider is marketing home
   4-25  collection kits in a community in which a significant portion of
   4-26  the population speaks a language other than English or Spanish.
   4-27        Sec. 85.259.  MARKETING.  (a)  The board shall adopt rules
    5-1  governing the marketing and distribution of home collection kits
    5-2  for HIV infection testing.
    5-3        (b)  A person may not sell a home collection kit for HIV
    5-4  infection testing to a person younger than 18 years of age.
    5-5        Sec. 85.260.  CONFIDENTIALITY.  (a)  Any statement that an
    5-6  identifiable individual has or has not been tested with a home
    5-7  collection kit for HIV infection testing, including a statement or
    5-8  assertion that the individual is positive, negative, at risk, or
    5-9  has or does not have a certain level of antigen or antibody, is
   5-10  confidential as provided by Section 81.103.
   5-11        (b)  A person commits an offense if the person violates this
   5-12  section.  The punishment for an offense under this section is the
   5-13  same as the punishment for an offense under Section 81.103.
   5-14        Sec. 85.261.  CERTAIN TECHNOLOGY PROHIBITED.  A service
   5-15  provider may not use technology that permits the service provider
   5-16  to identify an individual to whom test results or counseling is
   5-17  provided or to identify the telephone number from which that
   5-18  individual is calling.
   5-19        Sec. 85.262.  REPORTS.  A service provider shall report test
   5-20  results from a home collection kit for HIV infection testing in the
   5-21  manner provided by Subchapter C, Chapter 81.
   5-22        Sec. 85.263.  CONFORMITY WITH FEDERAL LAW.  If the board
   5-23  determines that any part of this subchapter conflicts with federal
   5-24  law, the board shall:
   5-25              (1)  suspend enforcement of that part of the subchapter
   5-26  to the extent necessary to conform to federal law; and
   5-27              (2)  notify the speaker of the house of representatives
    6-1  and the lieutenant governor of the suspension.
    6-2        Sec. 85.264.  CRIMINAL PENALTY.  (a)  A person commits an
    6-3  offense if the person violates this chapter or a rule adopted by
    6-4  the board under this chapter.
    6-5        (b)  An offense under this section is a Class C misdemeanor.
    6-6        (c)  This section does not apply to an offense under Section
    6-7  85.260.
    6-8        Sec. 85.265.  MARKETING, DISTRIBUTION, OR SALE PROHIBITED
    6-9  BEFORE JANUARY 1, 1996.  (a)  A person may not market, distribute,
   6-10  or sell a home collection kit for HIV infection testing in this
   6-11  state before January 1, 1996.
   6-12        (b)  A person commits an offense if the person violates this
   6-13  section.  An offense under this subsection is a Class C
   6-14  misdemeanor.
   6-15        (c)  This section expires January 1, 1996.
   6-16        SECTION 2.  The legislature encourages manufacturers of home
   6-17  collection kits for human immunodeficiency virus infection testing
   6-18  to make the kits available, at reduced cost, to appropriate
   6-19  nonprofit organizations for use in human immunodeficiency virus
   6-20  infection testing and counseling programs.
   6-21        SECTION 3.  (a)  This Act takes effect September 1, 1995.
   6-22        (b)  Not later than December 31, 1995, the Texas Board of
   6-23  Health shall adopt rules necessary to implement Subchapter J,
   6-24  Chapter 85, Health and Safety Code, as added by this Act.
   6-25        (c)  An offense committed under Section 85.265, Health and
   6-26  Safety Code, as added by this Act, before January 1, 1996, is
   6-27  covered by the law in effect when the offense was committed, and
    7-1  that law is continued in effect for this purpose.  For purposes of
    7-2  this subsection, an offense is committed before January 1, 1996, if
    7-3  any element of the offense occurs before that date.
    7-4        SECTION 4.  The importance of this legislation and the
    7-5  crowded condition of the calendars in both houses create an
    7-6  emergency and an imperative public necessity that the
    7-7  constitutional rule requiring bills to be read on three several
    7-8  days in each house be suspended, and this rule is hereby suspended.