By: Middleton, Hall  S.B. No. 177
         (In the Senate - Filed November 14, 2022; February 15, 2023,
  read first time and referred to Committee on Health & Human Services;
  April 11, 2023, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 7, Nays 2; April 11, 2023,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 177 By:  Sparks
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to informed consent before provision of certain medical
  treatments and exemptions from COVID-19 vaccination requirements.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Texas COVID-19
  Vaccine Freedom Act.
         SECTION 2.  The legislature finds that:
               (1)  this state is responsible for ensuring that
  individuals lawfully residing in this state have the right to
  provide or withhold consent for any medical treatment;
               (2)  the decision in Canterbury v. Spence, 464 F.2d 772
  (D.C. Cir. 1972), establishing the concept of informed consent, has
  become a bedrock principle of the laws of this country and of each
  state;
               (3)  the American Medical Association's Code of Medical
  Ethics Opinion 2.1.1 recognizes the right of an individual to be
  fully informed of a recommended medical treatment to allow the
  individual to make an informed decision regarding the individual's
  course of treatment, including whether to obtain or decline a
  particular medical treatment;
               (4)  under 42 C.F.R. Section 482.13, a hospital is
  required as a condition of participation in Medicare to have in
  place a process for obtaining the informed consent of a patient
  before providing treatment to the patient and to ensure "[t]he
  patient or his or her representative (as allowed under State law)
  has the right to make informed decisions regarding his or her care";
               (5)  the United States Supreme Court upheld mandatory
  vaccination policies imposed by state and local governments to
  combat smallpox in Jacobson v. Massachusetts, 197 U.S. 11 (1905),
  and acknowledged in Pruneyard Shopping Center v. Robins, 447 U.S.
  74, 81 (1980), that a state may provide "individual liberties more
  expansive than those conferred by the Federal Constitution";
               (6)  persons inside and outside this state have sought
  or are seeking to compel or coerce individuals lawfully residing in
  this state into obtaining a COVID-19 vaccine contrary to the
  individuals' preferences;
               (7)  any attempt to compel or coerce an individual
  lawfully residing in this state into obtaining a COVID-19 vaccine
  contrary to the individual's preference is inconsistent with the
  principles of informed consent;
               (8)  federal regulations requiring an individual who
  works or receives training in a health care facility, including a
  hospital, to obtain a COVID-19 vaccine provide an exemption from
  the vaccination requirement for individuals with a sincerely held
  religious belief, observance, or practice that is incompatible with
  the administration of the vaccine or a recognized medical condition
  for which vaccines are contraindicated; and
               (9)  Section 161.0086, Health and Safety Code, as added
  by this Act, prohibits any person from compelling or coercing an
  individual lawfully residing in this state into obtaining medical
  treatments involving the administration of a COVID-19 vaccine,
  except as otherwise provided by the final rule adopted by the
  Centers for Medicare and Medicaid Services and published at 86 Fed.
  Reg. 61555 (November 5, 2021).
         SECTION 3.  Subchapter A, Chapter 161, Health and Safety
  Code, is amended by adding Section 161.0086 to read as follows:
         Sec. 161.0086.  INFORMED CONSENT AND MEDICAL TREATMENT
  EXEMPTIONS FOR COVID-19 VACCINATION. (a) In this section:
               (1)  "COVID-19" means the 2019 novel coronavirus
  disease.
               (2)  "Health care facility" means a facility that is a
  provider of services, as defined by Section 1861, Social Security
  Act (42 U.S.C. Section 1395x).
               (3)  "Health care provider" means an individual
  licensed or otherwise authorized by this state to administer
  vaccines.
         (b)  A person may not compel or coerce an individual lawfully
  residing in this state into obtaining a medical treatment involving
  the administration of a COVID-19 vaccine, including a COVID-19
  vaccine approved or authorized by the United States Food and Drug
  Administration, contrary to the individual's vaccination
  preference.
         (c)  A health care provider may not provide to an individual
  lawfully residing in this state a medical treatment involving the
  administration of a COVID-19 vaccine, including a COVID-19 vaccine
  approved or authorized by the United States Food and Drug
  Administration, unless the provider obtains the individual's
  informed consent before administering the COVID-19 vaccine.
         (d)  For purposes of this section:
               (1)  an individual lacks the capacity to provide
  informed consent for a medical treatment involving the
  administration of a COVID-19 vaccine if the individual has been
  compelled or coerced into obtaining a COVID-19 vaccine contrary to
  the individual's vaccination preference; and
               (2)  a health care provider who advises or recommends
  the administration of a COVID-19 vaccine is not considered to have
  compelled or coerced an individual into obtaining a COVID-19
  vaccine based solely on that advice or recommendation.
         (e)  A person may not take an adverse action or impose a
  penalty of any kind against an individual lawfully residing in this
  state for the individual's refusal or failure to obtain a medical
  treatment involving the administration of a COVID-19 vaccine.
         (f)  The prohibitions under Subsections (b), (c), and (e)
  apply only to the extent the prohibitions do not conflict with the
  final rule adopted by the Centers for Medicare and Medicaid
  Services and published at 86 Fed. Reg. 61555 (November 5, 2021).
         (g)  An individual employed by or providing services or
  receiving training in a health care facility that requires the
  individual to obtain a COVID-19 vaccination is exempt from the
  vaccination requirement if the individual requests orally or in
  writing an exemption in accordance with federal law based on:
               (1)  a sincerely held religious belief, observance, or
  practice that is incompatible with the administration of the
  vaccine; or
               (2)  a recognized medical condition for which vaccines
  are contraindicated.
         (h)  The attorney general may bring an action for injunctive
  relief against a person to prevent the person from violating this
  section. In an injunction issued under this subsection, a court may
  include reasonable requirements to prevent further violations of
  this section.
         (i)  A health care provider who violates Subsection (c) is
  liable to the individual who is the subject of the violation for
  damages in an amount of not less than $5,000.  The prevailing party
  in an action brought under this subsection may recover reasonable
  expenses incurred as a result of the action, including court costs,
  reasonable attorney's fees, investigation costs, witness fees, and
  deposition expenses.
         (j)  A health care provider may assert an affirmative defense
  to an action brought under Subsection (i) that the individual or an
  individual legally authorized to consent on behalf of the
  individual stated to the provider before the COVID-19 vaccine was
  administered that the informed consent was voluntarily provided.
         SECTION 4.  Section 161.0086, Health and Safety Code, as
  added by this Act, applies only to conduct that occurs on or after
  the effective date of this Act.
         SECTION 5.  If any provision of this Act or its application
  to any person or circumstance is held invalid, the invalidity does
  not affect other provisions or applications of this Act that can be
  given effect without the invalid provision or application, and to
  this end the provisions of this Act are declared severable.
         SECTION 6.  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.
 
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