Bill Text: TX HB91 | 2023 | 88th Legislature 3rd Special Session | Introduced

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Bill Title: Relating to informed consent before provision of certain medical treatments and exemptions from COVID-19 vaccination requirements.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-10-09 - Filed [HB91 Detail]

Download: Texas-2023-HB91-Introduced.html

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88S30161 JG-D
By: Spiller H.B. No. 91

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, if obtaining the vaccine is 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 person, including a health care provider or employer,
who violates this section 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 on the 91st day after the last day of the
legislative session.