HBA-JRA H.B. 733 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 733 By: Pitts Human Services 2/15/1999 Introduced BACKGROUND AND PURPOSE Currently, home health services and convalescent and nursing homes do not routinely pursue drug testing of applicants. H.B. 733 requires home health services licensed under Chapter 142, Health and Safety Code, and convalescent and nursing homes and related institutions licensed under Chapter 242, Health and Safety Code, to establish a drug testing program and routinely test all applicants for employment and prohibits them from hiring an applicant with a confirmed positive result. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 1 (Sec. 167.007, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle H, Title 2, Health and Safety Code, by adding Chapter 167, as follows: CHAPTER 167. DRUG TESTING OF EMPLOYEES Sec. 167.001. DEFINITIONS. Defines "confirmation test," "confirmed positive result," "drug," "drug test," "negative test result," "positive test result," and "screening test." Sec. 167.002. APPLICABILITY. Provides that this chapter applies only to an employer who is required to establish a drug testing program under this code or another law that references this chapter. Sec. 167.003. ELEMENTS OF DRUG PROGRAM. (a) Requires an employer who establishes a drug testing program for applicants for employment to provide each applicant a written statement that includes the particular test procedures to be used, a description in medical and common terminology of the drugs to be screened that lists a representative overthe-counter medication and other substances that may result in a positive test, and the consequences of a positive test result. (b) Requires an employer to give each tested applicant an opportunity to write a statement, to be sealed by the applicant prior to the test, regarding any factors that may influence the test results. Authorizes the testing laboratory to use the statement, but to disclose it to the employer only if testing results in a confirmed positive result. (c) Prohibits an employer from requesting or requiring a blood sample to be drawn for the purpose of administering a drug test. (d) Prohibits an employer, or anyone acting in the interest of the employer, from observing, directly or indirectly, an applicant in the process of producing a urine specimen. (e) Requires an employer and the testing laboratory to establish a coordinated chain of custody procedure for sample collection and testing that verifies the identity of each sample and test result. Requires the employer to use a laboratory accredited for drug testing by the National Institute on Drug Abuse or a similar nationally recognized organization. (f) Requires the testing laboratory to conduct a screening test that is approved by the Texas Board of Health and uses immuno-chemical technology or chromatography. Requires the laboratory to perform a confirmation test on any sample that has an initial positive test result by testing the sample through a gas chromatography-mass spectrometry methodology or a methodology at least as reliable and that provides quantitative information about the detected drug metabolites, using detection levels approved by the federal government for the testing of federal employees or contractors. (g) Requires the employer to provide the tested person with an opportunity to submit a blood sample to be preserved for later drug testing at the time the urine sample is submitted, at the person's request and expense. (h) Requires each notice required by this section to be translated into the applicant's native language and provided to the applicant in English and in translation. Sec. 167.004. REPORTING AND SAMPLE RETENTION REQUIREMENTS. (a) Requires the employer to require the laboratory to mail to the employer and the applicant a written statement that a urine sample is positive for the drug detected, if both the screening test and the confirmation test are positive. Provides that the notification must include the name of the tested applicant, the type of test conducted for both the screening test and the confirmation test, the results of each test, the cutoff or measure used to distinguish positive and negative samples on each test, the name and address of the laboratory, and other information provided by the laboratory to the employer related to the tests. (b) Requires the employer to require the laboratory to preserve a portion of any sample testing positive for retesting for at least 90 days after the tested person receives the results. Requires the employer to provide each applicant testing positive an opportunity to retest the preserved portion of the sample at an independent laboratory at the applicant's expense. Sec. 167.005. CONFIDENTIALITY; NO LIABILITY. (a) Provides that any information relating to the results of drug testing performed under this chapter is confidential and prohibits its release to any person except the employer and the tested applicant. Prohibits a drug test result from being obtained by court order or process unless the affected applicant voluntarily signs a written consent form or a release is compelled by a court in connection with an action brought under Section 167.006. (b) Provides that any information released in violation of this section is inadmissible as evidence in a judicial or quasi-judicial proceeding, other than a proceeding brought in a court in connection with an action under this chapter. (c) Provides that an employer who establishes a drug testing program under this chapter is not liable for failure to test for any specific substance, defect, or abnormality, failure to detect any specific substance, disease, infectious agent, virus, defect, or abnormality, or because the drug testing program is terminated or suspended. Sec. 167.006. REMEDIES. Provides that an employer or laboratory that violates this chapter is liable to an applicant for any damages allowable by law, in addition to any other remedies provided by law. Authorizes a court to award reasonable attorney's fees and court costs for a suit based on a violation of this subchapter to an applicant, if the court determines the employer or laboratory knowingly or recklessly violated this chapter, or to the defendant, if the court determines that the suit was groundless and brought in bad faith or for the purpose of harassment. Sec. 167.007. RULES. Authorizes the Texas Board of Health (board) to adopt rules governing drug testing programs established under this chapter. SECTION 2. Amends Subchapter A, Chapter 142, Health and Safety Code, by adding Section 142.007, as follows: Sec. 142.007. MANDATORY DRUG TESTING. Requires an agency licensed under this chapter to establish a drug testing program under Chapter 167 and each applicant for employment with the agency to submit to a drug test in accordance with that chapter. Prohibits an agency from extending an offer of employment to an applicant whose drug test returns a confirmed positive result. Requires the Texas Department of Health to act as the employer under Chapter 167 with respect to an individual who is licensed as a home and community support services agency and who personally provides home health services. SECTION 3. Amends Subchapter B, Chapter 242, Health and Safety Code, by adding Section 242.0371, as follows: Sec. 242.0371. MANDATORY DRUG TESTING. Requires any institution licensed under this chapter to establish a drug testing program under Chapter 167 and each applicant for employment with the institution to submit to a drug test in accordance with that chapter. SECTION 4. Effective date: September 1, 1999. Prohibits a drug testing program from being established before January 1, 2000. Provides that a drug testing program established by a home and community support services agency licensed under Chapter 142 or an institution licensed under Chapter 242, Health and Safety Code, before January 1, 2000, must conform to Chapter 167, Health and Safety Code, as added by this Act, before March 1, 2000. Requires the board to adopt rules relating to drug testing screening tests before December 1, 1999. Makes application of this Act prospective, regarding a person who applies for employment with a home and community support services agency licensed under Chapter 142 or an in institution licensed under Chapter 242, Health and Safety Code. SECTION 5. Emergency clause.