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The House Committee on Public Health met on March 20th to take up the bills on the notice here. This report covers the following bills in order: HB 44 (Swanson), HB 2726 (Klick), HB 1313 (Burrows | et al.), HB 1998 (Johnson, Julie), HB 2767 (Klick), HB 1890 (Jetton), and HB 81 (Harrison | et al.). All new bills were left pending. A video archive is available here: Part 1 & Part 2.

This report is intended to give you an overview and highlight the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Vote Outs

  • HB 181 (Johnson, Jarvis) voted out to full House (10-0)
  • HB 248 (Murr) voted out to full House (10-0)
  • HB 362 (Oliverson) voted out to full House (9-1)
  • HB 861 (Lozano) Kratom voted out to full House (10-0)
  • CSHB 1805 (Klick) voted out to full House (10-0)
    • CS changes low THC definition to 10mg per dose to avoid issues with carrier oils, CS adopted

 

Bills on Notice

HB 44 (Swanson) Relating to provider discrimination against a Medicaid recipient or child health plan program enrollee based on immunization status.

  • Swanson – Bill passed through this committee and Calendars, but did not pass in Senate
  • Issue for lower income Texans on Medicaid or without private insurance
  • HB 44 prohibits providers enrolled in Medicaid from denying treatment due to vaccination status
  • V Jones – This would eliminate all vaccinations like chicken pox, rubella, etc.?
    • Swanson – Wouldn’t eliminate them, would ensure care for children not on schedule
  • V Jones – What about schedule provided by CDC?
    • Have long had exemptions for conscience, religion, and medical reasons
  • V Jones – Any data available for amount of children based on immunization status
    • Have seen quite a few
  • A Johnson – Wanted to clarify “discriminated against”?
    • If a person uses rights and they are denied care by someone taking state money
  • A Johnson – If someone refuses to take my advice as a lawyer, I don’t have to continue to defend someone, correct?
    • Don’t see it as quite the same, need to protect children; many can’t be on schedule
  • A Johnson – They can’t be, why not?
    • If you don’t care about reactions, they can be; have good reasons for not keeping up with schedule
  • A Johnson – Sounds like parents are making determinations based on reactions of other children?
    • One example of people needing to take advantage of this
  • A Johnson – If I see a provider and I refuse to acknowledge their recommendations, they don’t have to continue providing treatment
    • Have long history of doctors who provide care to those who don’t follow recommendations
  • Oliverson – Does feel like there is a cancel culture out there, it is hard for families who have made a decision; there are situations where it is challenging to find a PCP in the program, many people on Medicaid don’t have access to the system
  • Oliverson – Providers are private businesses, but everyone who participates in the Medicaid program has to participate based on rules; if vaccination status is the determining factor, they will either comply or not provide Medicaid care, period
  • Oliverson – Mostly a PCP issue; could you envision specific situations like a pediatric cancer center where everyone is immunocompromised and exposure to communicable disease is life threatening; could you see certain situations where doctors may need to take steps to protect medically fragile children?
    • In the past, there were sick and well rooms, etc.; with COVID had procedures to wait in the car while testing
  • Oliverson – Nothing in bill that says doctor can’t take reasonable steps, but bill just says you can’t deny care based on immunization status
    • Yes
  • J Jones – Don’t see anything that explains the factors that aren’t discrimination? Don’t see discrimination in the bill? How do you know what is an appropriate nontreatment of someone?
  • J Jones – Are you suggesting that patient’s rights supersede physician’s rights? What is the definition of reasonable refusal?
    • Have not heard of situations where those who didn’t get COVID vaccine were refused treatment
  • J Jones – What does a doctor have to do to not be disenrolled?
    • Have some people coming up who could speak to that more
    • Medical personnel are exposed often, but can limit in ways described earlier
  • J Jones – Struggling with saying doctors don’t have same rights as a patient
  • Tinderholt – Impacts only Medicaid patient? If I self-pay
    • All patients of any provider that provides care under Medicaid
    • If you self-pay and you go to a doctor who accepts Medicaid, they cannot refuse to treat you
  • Tinderholt – Happening to those who don’t vaccinate for anything or just one offs?
    • Whole spectrum
  • Tinderholt – Does the state provide opportunity for those that don’t believe in the CDC timeline? Is it legal for people to get certain vaccines?
    • Yes, no child can be denied going to public or charter school
  • Tinderholt – Do you think the CDC is forcing its will on people by forcing them to get a vaccine to see a doctor?
    • Ends up being absolutely what you’re talking about
  • Price – Trying to account for people with specific situations?
    • Absolutely
  • Price – Are you planning to change any of the language? Definitive language in this bill, any plan to create exemption?
    • Don’t think it is necessary, doctor can take reasonable steps
  • Price – Don’t read it that way, “shall disenroll” is pretty clear language, wondering if there is any room to thread the needle
    • Would be happy to talk afterwards; feel like every medical provider should be creative and use their discretion
  • Price – Language of the bill isn’t “they can consider,” etc. just want to know if there is any leeway or flexibility for physicians to consider patient mix or others who may be affected
  • Oliverson – Like bill language that says may not refuse based on vaccination status for a particular infectious or communicable disease; seems to take care of this, doesn’t mean you can’t refuse service for other reasons
  • Oliverson – You could insert the word “solely” if you wanted to make it abundantly clear
    • Where would you put solely?
  • Oliverson – Line 14; would take care of providers refusing treatment for vaccinations alone
    • Absolutely; many doctors being forced to do this by their affiliations
  • Oliverson – Medicaid is voluntary, bill is clear it only applies to Medicaid beneficiaries
  • J Jones – Concern is that bill doesn’t define when bill is appropriate; would be amendable to CS that includes solely language and an explainer of circumstances reasonable to deny care so doctors have an idea of what they can and can’t do
    • I think solely would be a great addition
  • J Jones – Also think we need to define circumstances

 

HB 44 Spotlight on Public Testimony

Michelle Evans, Texans for Vaccine Choice – For

  • Have heard of many who have been kicked out of care due to choice to follow altered vaccination schedule; families denied basic care

 

Gomez, Self – For

  • Told his story of coercion, being forced to take vaccine
  • Lost opportunity to attend college and no longer have resources to continue his education because he refused a vaccine

 

Jason Terk, Texas Medical Association – Against

  • Sound cut out briefly & returned at the beginning of questions
  • No sound – House Video was aware, came back on during questions
  • Smith – Would most physicians refuse treatment to a patient who refuses to get immunized
    • Can’t speak for other doctors
  • Smith – Can you give us an understanding of situations where you would deny care?
    • Practice with 6 other pediatricians, see 180 patients per day, COVID separation no longer exists in most practices, waiting rooms shared between patients with many different conditions
    • In current circumstances where things like measles is a real threat, people with measles can be present and not know & if they leave it can remain in the air and is highly infectious; deadly situation for the immunocompromised
  • Smith – I thought we eradicated it
    • Not opinion, multiple outbreaks in the last few years
  • Smith – Opinion on why that is?
    • Lack of vaccinations, declared eradicated at the beginning of the century, but had multiple outbreaks in Texas in the last 5 years
  • Smith – What does measles do?
    • Highly infectious, high fever, body aches, respiratory symptoms, complications include pneumonia, can also have a follow up condition a couple years later that is 100% fatal
  • Smith – Other diseases that you would be trying to guard against be refusing physician/patient relationship
    • One of the other very common illnesses is pertussis or whooping cough; few symptoms in adults, but can be deadly for infants; infants are not protected until 3rd round of pertussis vaccination
  • Smith – Can understand your concern as a pediatrician, other offices can maintain relationships
    • I’m sure there are other practices this wouldn’t affect as much, but program primarily serves children and would disproportionately affect pediatricians
  • Smith – Do you know pediatricians who would continue to treat
    • Sure
  • Smith – Percentage in practice?
    • Don’t know
  • Collier – How would you go about trying to abide by the bill? Additional cost?
    • Pediatricians are the lowest paid physicians, margins are thin, accommodating bill would be out of the question for most pediatric practices
  • Collier – Do physicians say they refuse to treat because of lack of vaccination status
    • Can only speak to my patients, one vaccine is not the same as another, e.g. don’t refuse patients who don’t get flu vaccine
    • Preponderance of lack of recommended vaccines is basis for refusal
  • Collier – Whooping cough?
    • Very common to have babies catch pertussis from parent or other relation, very serious condition
  • Collier – Bill is pretty broad right now? Would still be against bill stating that it was the sole reason
    • Would be in opposition
  • Smith – Have you seen patients who present with measles who have been vaccinated?
    • Have never seen a patient who presents with measles who hasn’t been vaccinated
  • Smith – Familiar with studies?
    • Familiar with studies on rate of measles in populations who don’t vaccinate
  • Smith – You do have folks who present
    • Not aware of studies that look at rates of measles among vaccinated people

Judy Powell, Parent Guidance Center – For

  • Bottom line of bill is people shouldn’t forced to give up right to health care if they choose to exercise right to not vaccinate
  • Bill is permissive, only says you can’t do this one thing, doesn’t say you can’t continue pandemic practices
  • V Jones – Is there someone who can provide guidance on required vaccinations and immunizations for adults?
    • Defers to medical provider

 

Gregory Porter, Self – For

  • Talking about risk and discrimination, very miniscule risk is driving decisions for an entire population; many health care decisions are being made on financial conflicts of interest

 

Cesar Lopez, Texas Hospital Association – Against

  • Have concerns with certain immunocompromised patients
  • Proposed narrow exception for doctors involved in oncology or transplant care
  • Tinderholt – Things you’d like to see in the bill that you would support?
    • Yes, proposed narrow exception
  • A Johnson – On that language, my concern would be if you had a practice that had transplant patients, failure to get vaccinated would be the reason to deny doctor/patient relationship
    • Our patients would be much more concentrated as a hospital, tried to propose very straightforward exception that it is not a violation for oncology and transplant care
  • A Johnson – Could this extend beyond this?
    • Based on testimony, yes
  • A Johnson – Beyond doing specific exceptions, would like some language that could account for those other situations
    • Happy to work with anyone involved

 

Jackie Schlegel, Texans for Medical Freedom – For

  • Important for families of medical fragile children, had to drive 2 hours to find care for daughter who hadn’t received HPV vaccine

 

Rebecca Hardy, Texans for Vaccine Choice – For

  • On measles, 19 cases in 2019 60% were in immunized individuals
  • Shares stories from two families denied care for stance on vaccination
  • Tinderholt – Any pitfalls to conditioning medical care based on vaccination status?
    • Problematic for numerous reasons, violated doctor/patient relationship, coerces doctors into following a policy they may not support, burdens low-income families, etc.

 

Tom Glass, Texas Constitutional Enforcement – For

  • Singling unvaccinated people out as a threat to immunocompromised people is wrong
  • Patient must make the decision

 

Rep. Swanson closes

  • Swanson – Many methods for protecting those who are sick have been developed due to COVID; can reschedule patients if needed
  • AMA is saying lack of vaccination is not a reason to not treat someone, TX has a right to not get vaccinated
  • Participation in Medicaid is voluntary, no inherent right to practice as you want & must abide by regulations

 

HB 44 left pending

 

HB 2726 (Klick) Relating to the practice of nursing, including disciplinary procedures of the Texas Board of Nursing; authorizing a fee.

  • Klick – Designed to ensure fair, equal application of disciplinary measures
  • First portion addresses out of state nurses practicing in Texas, incl. liability shield, under jurisdiction of BON while practicing here, confidentiality protections, expungement process for nurses with low-level offenses

 

HB 2726 Public Testimony

Tracey Ramsey Abbott, Texas Nurses Association – For

  • Bill promotes fair system of nursing regulation, Nursing Practice Act would be applied evenly to everyone practicing in TX; during pandemic BON did not have authority over out of state nurses practicing in TX
  • Collier – On expunction of disciplinary records, any other areas of health care professions that allow for this?
    • Other agencies have explored this, but typically in criminal settings
    • Trying to address low level civil enforcement actions with this
    • Kentucky has a similar expunction provision
  • Collier – Any other health care professions that allow for expunction?
    • Can get back to your office
  • Collier – Don’t see one for doctors; can you give an example of what is included? Don’t see “low level” in the bill
    • BON has a matrix of offenses that they would be using to assess low level offenses
    • Even if expunction happens, would still be reported to the national databank
  • Collier – Wouldn’t that defeat the purpose of the expunction?
    • Would be able to say you have not had a board order and be telling the truth when applying for a job
    • Job would still be able to see the expunction on the national databank
  • Collier – Only expunged for the public; don’t see in bill that it is for low level offenses, but your understanding that this is for low level offense?
    • Yes
  • Collier – Can you tell me more about the offense matrix?
    • BON defines offenses via the matrix, lays out disciplinary actions
  • J Jones – Would be expunged in TX, wouldn’t be expunged at the national level; what about repeat offenses? Seems like if you wait long enough between infractions it would look like there wasn’t a previous offense
  • J Jones – Physicians can’t expunge their infractions, why should nurses be treated differently than other medical professionals?
    • Have a shortage of nurses in TX, this is one tool to address this
  • J Jones – What is your response to
    • Still goes to National Practitioner Databank, flags if they have a violation, flags expunction; another violation could disqualify, not for repeat offenders
  • J Jones – Where is this in the bill?
    • It doesn’t, leaves it to the BON to make those decisions
  • J Jones – Would be helpful to know about databank access

 

Jack Frazee, Texas Nurses Association – For

  • In response to Rep. J Jones, Section 4 of the bill says that BON can condition eligibility for expunction based on repeat or multiple offenses and the seriousness of the violation
  • Parameters set by rule
  • J Jones – If it is expunged, how would BON know?
    • BON would still have records, just wouldn’t be publicly available to requests
  • J Jones – What are minor violations?
    • Disciplinary matrix defines; order for remedial education is low level, failure to renew license in a timely manner, etc.
  • Collier – Limit on the number of expunctions someone could receive?
    • In that same section, repeat offenses is one of the reasons you could be ineligible for expunction; ultimately up to BON discretion
  • Collier – Should nurse have to wait to seek the expunction?
    • Not available immediately, would need to wait
  • Collier – Didn’t see a time in the bill
    • Leaves it up to BON because they set the matrix
  • Collier – Reasonable to seek expunction one year after violation?
    • I don’t think so typically, ultimately would be the BON’s decision
  • Collier – Would allow a nurse to say it didn’t happen?
    • Would be able to say the record doesn’t exist
  • Collier – In a lawsuit, can they say yes?
    • Can say that no record exists, cannot deny that it never happened
  • Tinderholt – Is the purpose of this recruiting and retention?
    • Yes
  • Tinderholt – Every time we lowered standards in the military it didn’t work out; not getting straight answers because the BON makes these decisions; standards can change as the rulemaking changes
  • Tinderholt – Don’t think I can support expunging, puts person in awkward position in answering questions, need to be able to make “whole person” decisions when hiring
  • J Jones – If purpose is expressly to compensate for nursing shortage or is there something else?
    • Definitely repeat violations that end up being an issue
    • Bill isn’t allowing people to get out of any violations, nurse would still be disciplined; only allows for the person to get record expunged after a period of years, limited by BON being able to limit ability for repeat offenses
  • J Jones – Would you be opposed to a CS with a years stipulation?
    • No

 

Sheila Hemphill, Texas Right to Know – For

  • BON investigations are backlogged, disciplining nurses without cause
  • Because nurses are bonded, if you are reprimanded or disciplined, you cannot get a bond based on prior disciplinary action
  • Highlights situation where nurse defended herself when she thought she was under attack
  • Tinderholt – Wouldn’t that be a more serious violation? You’re with Texas Right to Know but your testifying trying to get nurse violations covered up
    • Would be part of the federal databank
  • Tinderholt – Then what is the purpose
    • Very reasonable belief that much of the disciplinary action comes from rushed cases
    • Have heard of cases of disciplinary action that is very minor
  • Tinderholt – Sounds like we would be better off writing bill standardizing discipline across the profession, which I don’t like
  • J Jones – When nurses are punished they have to go through IFC and can’t afford it?
    • Informal settlement conference
  • Campos – Notes that BON Director could answer questions

 

Mark Majek, Texas Board of Nursing – Resource

  • J Jones – What are minor infractions?
    • BON has a 5 part matrix, done by priority, priority 1 are minor infractions; lengthy list and can get you a copy of that
    • For minor violations you would get remedial education, example could be something not renewing license and continuing to practice
  • J Jones – Concerned about suspensions that might deal with patients
    • Might be prescription errors where no patient was harmed
  • Collier – Who creates the matrix?
    • BON
  • Collier – Possible to change?
    • Yes
  • Collier – One infraction can be moved from Level 2 to Level 1, etc.?
    • Yes
  • Collier and Majek discuss minor infractions under matrix
  • Collier – Current version of the bill doesn’t say minor, BON would be required to consider any infraction
    • BON can make rules depending on the law, would take input from stakeholders
  • Collier – Fiscal note says you would need 3 FTEs, currently 10k-15k cases that would be eligible; what was the basis?
    • Anything with remedial education, can look at other violations
  • Collier and Majek discuss particular cases that could be expunged, many of the existing cases could be very old
  • Collier – BON would automatically look at all violations?
    • Bill provides for fee, anticipated request
  • Collier – Notification for those eligible?
    • Possibly via newsletter, looking at other methods for those no longer licensed
  • Collier – National Practitioner Databank?
    • Limited on who can access, no public
  • Collier – So nurse can say publicly that the violation doesn’t exist
    • If they apply and we approve the expunction, wouldn’t be a record of violation
  • Collier – A nurse whose record has been expunged may state the expunged record does not exist, not subject to other means of legal compulsion; in a deposition nurse could say it doesn’t exist
    • Can’t answer
  • Collier – BON would set rules and regulations? Including time period
    • Yes, would take input from public
  • Collier – 3 new FTEs already covered in existing budget?
    • Fee charged could offset, $50 fee per application to expunge
  • Collier – Should cover cost for 3k/year, roughly $240k for the first year and would cover FTEs
    • Estimations based on doing this in a logical way
  • Collier – Since you have a number, you already know the offenses included?
    • Yes
  • Collier – Doesn’t the fiscal note change after the fee and number using the service?
    • Could expand or contract, probably know more next biennium
  • Campos – Can a death complaint get expunged?
    • On the operations side I have not seen this, can’t answer this question

 

Rep. Klick closes

  • Happy to visit on concerns that could be addressed in substitute

 

HB 2726 left pending

 

HB 1313 (Burrows | et al.) Relating to a study on the side effects, adverse reactions, including death, and the effectiveness of vaccines against the SARS-CoV-2 virus (COVID-19) or its variants.

  • Burrows – Study bill, would restore public confidence in state regulatory and policy-making entities
  • CS exists that removes HHSC and designates the Texas Epidemic Public Health Institute (TEPHI) and DSHS to do this; TEPHI already involved in large antibody study

 

HB 1313 Spotlight on Public Testimony

Eric Boerwinkle, UT health Houston School of Public Health, TEPHI – Resource

  • Provides overview of TEPHI, looks at infectious disease, both natural and manmade
  • TEPHI runs Texas CARES to look at COVID antibodies, results show 60% of Texans with antibodies from previous infection, 99% with vaccine or infection
  • Still more to know about antibodies, including length of time
  • Collier – Currently we have a study going at UT Health?
    • Many going on, highlighting Texas CARES on COVID antibodies
  • Collier – Do you talk about positive impacts of vaccination in the current study?
    • Virus and side effects in HB 1313 are very similar, would send survey out to participants on conditions experienced
    • Main measure we look at for positive results is lack of breakthrough infection
  • Collier – Funding?
    • Federal money through DSHS
  • Collier – Anticipating applying for more?
    • Anticipating leftover federal funds for the survey
  • Tinderholt – You can accept gifts, grants, or donations, would you see a conflict if Pfizer or CDC donated?
    • Yes
  • Tinderholt – So you wouldn’t accept?
    • Yes
  • Tinderholt – Is 4 months enough time for the study?
    • It wouldn’t be if we had to start from scratch, but Texas CARES is ongoing & think we can be time effective adding to the scope
  • Tinderholt – Who fully funds you right now?
    • TEPHI is funded by Texas
  • Tinderholt – From federal grants?
    • Yes
  • Tinderholt – Have you found any significant underreporting of side effects?
    • Hard to say, know the number of reports, but not the possible total; will know the percentage for the cohort in Texas CARES
  • Tinderholt – Do you or the org feel like forced vaccines were necessary or that people should have the vaccine
    • For HB 1313, the bill isn’t pro or anti vaccine, simply trying to collect the best info
    • For UT Health to TEPHI, support vaccines, do not support vaccine mandates
  • Tinderholt – Want to make sure people doing the study are neutral
  • Smith – If there was a new virus, could the wastewater monitoring effort discover it?
    • One of the unique features of TEPHI to monitor wastewater, would be able to detect new viruses
  • Smith – What communities are you doing testing in?
    • Houston, Tyler, negotiating Dallas North, Brownsville, El Paso, Wichita Falls
  • Smith – Any other state doing this?
    • No
  • Smith – Prepared pandemic workforce that TEPHI is training? Members of the public?
    • Not employees of TEPHI, started with local and county public health personnel, added community colleges
  • Smith – Could Texas CARES be adjusted quickly to measure antibodies for other pandemic or epidemic?
    • Depends on definition of quickly, relatively quickly, but would need the assay for the new antibody
  • Smith – Have you determined if one vaccine had better efficacy over another?
    • Measuring antibodies, Moderna gives highest, Pfizer second, J&J third; breakthrough infections follows but not necessarily 1:1 mapping to protection
  • Collier – Will this report have any recommendations?
    • Focus of HB 1313 is to collect the information and make it available
  • Collier and Boerwinkle discuss subject of info gathering
  • Collier – Does this include antiviral?
    • Doesn’t include survey for antibody therapy, HB 1313 doesn’t include
  • J Jones – Only data being collected is negative effects of the vaccine, don’t see anything positive; seems like it’s not scientific
    • Can carry out study in a very objective way, group of 90k individuals & will not word questions in a leading way
    • Will also sprinkle duplicated questions in the survey that can indicate truthful response
    • Will also ask more positive questions
  • J Jones and Boerwinkle discuss data captured under study, asks about effects to person, cannot ask about others related without medical consent
    • Will be asking questions in a way that tends to more truthful responses
  • J Jones – Asks for example of nonleading question be sent to her office
  • V Jones – Would need to disclose intent of the study, adverse reactions already has a bit of tilt; how is this study different from others conducted up to now?
    • This study has not been carried out in TX; asking questions in HB 1313 for those receiving the vaccine
  • V Jones – No study so far on effects of the COVID vaccine?
    • Only study I’m aware of is self report

 

Jackie Schlegel, Texans for Medical Freedom – For

  • Unintended consequences of COVID mitigation measures led to Texans questioning if measures were doing more harm than good; concerns have been shown to be valid & has resulted in distrust

 

Tom Glass, Texas Constitutional Enforcement – For

  • Have gone through 3 years of largest regulatory capture of government & agencies by big pharma the world has ever seen; do not trust the info, CDC has reversed its opinions several times

 

Cesar Lopez, Texas Hospital Association – On

  • To extent that bill asks for info from hospitals, asking that it uses existing reporting mechanisms

 

Michelle Evans, Texans for Vaccine Choice – For

  • Appreciate spotlight adverse effects, but would like wording changes
  • Had concerns about HHSC doing the study, but continue to have concerns about organizations funded with federal money
  • Would like to know 90k patient cohort or if DSHS will include records from providers & if it is using retrospective unreliable data
  • Tinderholt – 90k cohort?
    • From TEPHI
  • Tinderholt – What would be your recommendation to get additional data from?
    • HB 1313 laid out record from providers, patients, and clinics that report to DSHS
  • J Jones – You don’t trust the CDC?
    • Hesitant about organizations who accept funding from the CDC; CDC and federal gov are the largest customer of vaccine manufacturers

 

Leslie Thomas, Self – For

  • Son developed seizures roughly one month after receiving vaccine, requested VAERS report at every medical provider that saw him
  • J Jones – VAERS report?
    • Vaccine Adverse Event Reporting System

 

Rekha Lakshmanan, Immunization Partnership – On

  • Need to look at good and not so good, HB 1313 proposes look at short-term side effects; important to look at positive and negative
  • Had successes from pandemic response as well, avoided 18m hospitalization and 3m deaths

 

Sheila Hemphill, Texas Right to Know – For

  • Provides diagram to the committee
  • Strongly supports HB 1313
  • Freedom of info request showed coronavirus is a bioweapon
  • Collier – Asks about diagram provided to the committee with picture of fetus & chimpanzee
    • Definition of vaccine changed from completely immune, to invoke an immune response
    • Discusses process of using mRNA to develop vaccines
    • FDA identified possible side effects in slide show in 2020
    • Monkey picture relates to adenovirus technique used by J&J and Moderna
  • Collier – Do you have a science background?
    • Degree is in computer science
    • Vaccine is not FDA approved
    • Study is looking at negative effects federal government pushed positive info about the vaccine

 

Rep. Burrows closes

  • Burrows – Results continue to be concerning, part of the reason we’re doing this in 4 months is to ensure it’s timely; will make it an even better bill with the CS

 

HB 1313 left pending

 

HB 1998 (Johnson, Julie) Relating to the regulation of physicians and the disciplinary authority of the Texas Medical Board.

  • Julie Johnson – TX law has many loopholes where disciplinary actions against doctors aren’t disclosed
  • HB 1998 would close loopholes by require TMB to search national databank, peer review committees, and refuse to issue license if applicant has had license revoked in another state
  • Working on CS to address fiscal note & with TMB on a few issues with the bill

 

 

HB 1998 Public Testimony

Lisa McGiffert, Patient Safety Action Network – For

  • Issued 2 reports about medical licenses last year on info offered and how medical boards communicate about sexual misconduct
  • TMB has been under fire for failing to protect the public from dangerous practitioners
  • Bill requires TMB check national databank for new reports on doctors and update the physician profiles; valuable resource for anyone who wants to research their doctor

 

Stephen Carlton, Texas Medical Board – Resource

  • Chair Klick – Could you discuss the fiscal note and what the bill requires?
    • Requires a monthly check for each physician, $2.5 per check, $3m per year for all practitioners
    • Another push notification option exists to pay databank to send updates
  • Chair Klick – So that would be more cost effective?
    • Yes, much more; push notification option would let us update profile every time TMB receives one of those

 

Kelsey McCay, Self – For

  • Speaking on one doctor that TMB had the opportunity to stop but failed to do so
  • A Johnson – How would this bill impact potential notification of that situation?
    • At the initial arrest was required to self-report, failed again to do this in 2016, TOMB only got involved after; no punishment for not reporting
    • 8 victims so far and TMB has not interviewed any, was allowed to keep license, only recently temporarily suspended for a DUI
    • Asking TMB recognize need for enforcement after lack of reporting
  • A Johnson – Other gaps?
    • Many, hope for additional conversations so other gaps can be addressed

 

Steve Wohleb, Texas Hospital Association – On

  • Rules for what needs to be reported to the databank are rigid, provision in HB 1998 does not align with the databank reporting rules; in discussions with Rep. Johnson’s office about this
  • Hospitals have a range of options open to them to address doctor misbehavior, currently reporting only for actions longer than 30 days
  • Any reporting should be tied to practice & competency, shouldn’t be tied to administrative issues
  • J Jones – Why do you think record charting should not be reportable?
    • Could be an issue that raises concerns about professional conduct, need to be concerned about language
    • Hospitals have requirements about timeliness of charting, etc., but could be so egregious that it implicates competency and reporting would be warranted

 

Ware Wendell, Texas Watch – For

  • TMB often slop to respond or fails to act; highlights cases of ongoing abuses
  • Need to be aware of requirements; if you set reporting at suspensions of 3o days or more, you’ll see 29 & 28 day suspensions

 

Jennifer Thompson, Self – For

  • Assaulted by colleague who then assaulted others, offender did not self-report at first though was arrested several times; TMB did not follow up and allowed him to keep his license

 

Sheila Hemphill, Texas Right to Know – Against

  • Not one-sided on practitioners databank; if you go through courts and they find you innocent, should have process to remove complaint

 

Rep. Julie Johnson closes

  • Working on CS to adjust continuous reporting, TMB still has issues, have had a systemic problem with patient safety; highlights case of Dr. Duntsch, had an anesthesiologist with providing tainted IV bags last summer
  • HB 1998 gives TMB tool to do its job, puts penalties in for physicians that don’t self-report, hospitals to report when physicians are medically negligent

 

HB 1998 left pending

 

HB 2767 (Klick) Relating to the sharing of controlled substance prescription monitoring information between the Texas State Board of Pharmacy and the Health and Human Services Commission for the state Medicaid program.

  • Klick – State law determines who has access to PMP, currently does not include Medicaid program, but federal law requires reporting to CMS and to have a process to reduce fraud
  • Currently HHSC pays TSBP to provide aggregate data for the reports, but HHSC is unable to use detailed data to identify potential fraud & abuse
  • HB 2767 would give HHSC authority to access PMP data for these purposes

 

HB 2767 left pending

 

HB 1890 (Jetton) Relating to the operation of a hospital at home program by certain hospitals; authorizing a fee.

  • Jetton – Allows TX hospitals to participate in CMS’ Acute Hospital Care at Home
  • Currently hospitals participate via flexibility from COVID-19 pandemic, bill would extend this flexibility
  • CS forthcoming that would add the effective immediately provision
  • J Jones – Negative impact in fiscal note; what does bill would provide the legal basis mean?
    • As of right now program is funded through PHE, would be the number of staff required
  • J Jones Wondering about the fiscal note that says there would be no appropriation, but would provide legal basis
    • Authorized in the future to be a part of the appropriations bill; state could appropriate money to it in the future
  • Chair Klick – Boiler plate language
  • Chair Klick – Hospital at Home was a great asset during COVID, allowed us to monitor people at home and freed up hospital beds
  • Tinderholt – On minimum standards, CMS made staff have to be COVID vaccinated; do you know if that was required of this program?
    • Don’t know if it was required across the board, decision made by each hospital

 

Anna Taranova, University Health San Antonio, Texas Hospital Association – For

  • More than 250 hospitals across 37 states approved for the program, 27 of them in TX; University Health has treated 900 patients through the program and freed up 4.5k day beds with no adverse outcomes
  • Results are clear, breached digital divide, allowed orgs to better look at social determinants of health
  • Hospitals need appropriate screening protocols, RNs would monitor people at home twice daily
  • No cost to the state
  • Tinderholt – What type of acute care?
    • Over 100 were patients with COVID, other patients were those with nephritis, UTI, etc., also cared for postpartum patients, transferred home much sooner
  • Tinderholt – How does this decrease the cost, would think it costs more at home
    • Need for not so necessary tests is decreased, pharmacy medication decisions are more stable
  • Tinderholt – Not a doctor or nurse positioned at each house, one provider traveling between houses?
    • Yes, patients have a call button as well

 

Rep. Jetton closes

  • Have ability to take care of people in the home, good idea to move forward on

 

HB 1890 left pending

 

The committee recessed for the House floor

 

HB 81 (Harrison | et al.) Relating to informed consent before the provision of certain medical treatments involving COVID-19 vaccination.

  • Harrison – Initially there were no COVID vaccination mandates, but has become part
  • Codifies CVOID vaccination informed consent, prohibits mandates, licensed vaccinators must receive informed consent, protects from adverse action for not being vaccinated
  • Smith – On Pg 3, does person include a medical provider?
    • Yes
  • Smith – Is compel or coerce defined in the statute or bill?
    • Those two aren’t defined in this portion of the code
  • Smith – Worried that if a doctor comes to a patient and says “if you do not take this, this could happen” they would claim coercion
    • Don’t think a court would adjudicate a question like that, doctors have been making medical recommendations since the beginning of the profession
    • Did consider these issues, case from the 1890s held that presented your arm is giving informed consent
  • Smith – Wouldn’t object to maybe working out some language that wouldn’t put health care providers at risk?
    • Open to a dialogue with you to make sure nothing would impair doctor/patient relationship
  • Smith – Person may not take an adverse action, concerned about doctors who deny relationship based on patient not taking medical advice; hoping for more discussion about that
    • Happy to have a discussion, want to make sure doctor’s First Amendment rights are not compromised
  • Tinderholt – Does this prevent the ability of anyone to get a vaccine if they choose?
    • Absolutely not, “contrary to person’ vaccine preference” is throughout, nothing in bill would prohibit
  • Tinderholt – On Pg 3, language relating to compel or coerce, adverse action, etc.; would a cruise line or similar be implicated, e.g. if they deny a person passage?
    • Only related to COVID vaccine, not related to general health & safety policy, denying passage would be counter to CDC policy
  • Tinderholt – What about restaurant, is it scoped only to medical professionals?
    • Not just medical professionals, certainly would apply to employees of businesses
  • Collier – Does this bill only apply to people lawfully residing in TX?
    • Yes, person protected are those lawfully residing in the state
  • Collier – If you don’t have legal status, bill doesn’t protect you?
    • As drafted, would apply to lawful residents
  • Collier – Asking because on Pg 3 it refers to individuals generally, is this broader?
    • As drafted, would apply to any individual, could be clarifying language; intent of provision is that compulsion or coercion is incompatible with informed consent
  • Collier – Bill refers to capacity?
    • Yes, in relation to vaccine preference
  • Collier – So if you work in a surgical area that mandates COVID vaccination, is that coercion or compulsion?
    • Yes; if you are an employee and I say you must receive the vaccine or be fired, that’s clear coercion
    • If you want a vaccine this bill does nothing to inhibit vaccination
    • Makes more sense for health care workers, far more likely to have gotten COVID and recovered, thus benefiting from natural immunity
  • Collier – So if someone says you have to get the vaccination to work here and no one complains, there would be no issue
    • Enforcement is AG enjoining the adverse action, e.g. termination
  • Collier – Some federal statutes do allow
    • Federal HHS required vaccinations for health care workers, but states can grant broader rights
    • Not necessarily a federal preemption issue as CMS allows for exceptions
    • TX would be far from the first, other states have done this in medical settings
  • Collier – References a video on COVID mandates presented by Rep. Harrison; do we have any medical professionals in Texas who speak to this?
    • No reason, people in Texas also speak to this
  • A Johnson – Worried about legal definitions in the bill, seems like definition of informed consent is being changed; are there cases were you’re worried people aren’t getting informed consent
    • Numerous cases of people who have had careers hampered or ruined
  • A Johnson – People who chose to no longer work at those institutions; TX is at will and you can be fired for any reason
    • No, restrict actions based on certain things like gender, race, etc.
  • A Johnson – For protected classes
    • Almost historically unprecedented that employers can force
  • A Johnson – Not forcing, don’t have to work for my employer, can’t dictate what private businesses are doing as an employee
    • Never would have made these decisions without government mandates shifting risk, private mandates came about due to government action
    • Definition of informed consent under the statute only applies to COVID vaccinations
  • A Johnson – Then why do you use compelled and coerced? Plain meaning is different from informed consent; you’re giving multiple terms with conflicting meanings, may be creating conflict with terms
    • Would be happy to have conversations, other health care attorneys provided input
  • A Johnson – Are we able to know who they are?
    • Happy to follow up with you
  • A Johnson – Attorney client privilege?
    • Possible
  • A Johnson – Principle of not wanting government interference in doctor/patient relationships, does this extend beyond this or is it a special group?
    • Speaking on HB 81, believe in medical freedom
    • Believe in protecting sanctity of the doctor/patient
  • A Johnson – Trying to determine why you’ve created the ability of the AG to bring action when in every other case I would have to hire a lawyer
    • This is TX doing what it should do to protect medical freedom with regard to COVID vaccinations
  • A Johnson – Wondering why you’re creating something at the AG?
    • Protecting rights of patients
  • A Johnson – References witnesses in the morning; do you think the vaccine is safe and should people get it?
    • Not a doctor, ill prepared to speak on prior witnesses; recommend people talk to their doctors
  • A Johnson – Could you understand why people and employers working with people at risk where some employees are not a good fit
    • For the medically fragile, immunocompromised, etc., heart breaks for those who can’t take it
  • A Johnson – Talking about the employers responsible for caring for those people
    • Correct to protect medical liberty
    • Bill does not relate to other vaccines, only relates to COVID vaccination
    • Bigger concern for the immunocompromised is the increase in vaccine hesitancy, seeing this across all vaccinations
    • Nothing has done more to increase hesitancy than COVID mandates
  • A Johnson – You’ve opened up Civil Practices & Remedies Code?
    • Not in the draft submitted during the 87th Session
    • Sentence that implicates Civil Practices & Remedies Code will be struck by CS
  • A Johnson – You are opening a civil cause of action
    • Yes, one
  • A Johnson – Not one, there are damages, attorneys fees, etc.
  • A Johnson and Harrison discusses cause of action
  • A Johnson – Rather about it being interaction between doctor and patient, now involving possible outside actions before the patient sees the doctor
    • If the provider receives informed consent; cited 1890s case with a relevant fact pattern
  • A Johnson – But new law supersedes, I think you’re creating something new, if you’re not intending to, would like to fix
    • Don’t agree with that assertion, case that has held for 100 years will hold
  • A Johnson – It won’t with a new law on the books
    • Have had discussions with stakeholders across the spectrum
    • For the civil cause of action to be implicated statute would need to pass and wouldn’t have mandates
  • A Johnson – So trying to solve a nonexistent problem
    • If HB 81 passes, then TX does not have mandates and civil cause of action is not implicated
  • A Johnson – Limiting ability of health care facilities to determine best path for their business and patients
    • No, they are making decisions in a distorted free market
  • Collier – How would a health care provider that the person did not give informed consent? Holding doctors or provider responsible
    • For any of this to be implicated HB 81 would be law, and HB 81 makes it illegal to have a mandate
  • Collier – Talking about a health care provider who has nothing to do with patient signing papers with another
    • Under HB 81, on one who is a lawful resident of TX could be subject to mandate, would be strong presumption that the person is there of their own free will
  • Collier – Then maybe you are creating another protected class
    • Not creating another
  • Collier – How would a doctor, health care provider, pharmacist, etc. go about obtaining informed consent?
    • Same way they do now, very easy to add to current forms also
  • Collier – I think that is what it says already
    • Only has benefits and risk
  • Collier – Don’t see that you have to be the prevailing party to receive damages, and how does injunction come into it?
    • Injunction is not connected
  • Collier – So subjective on informed consent? Informed consent can mean that a doctor needs to ask the patient?
    • Don’t believe a licensed vaccinator would have to do that
    • Vaccine mandates would not exist under HB 81
  • Collier – Why bring in a third party? Brought in the health care provider?
    • If they are a lawful resident, illegal to be subject to vaccine mandate
    • Doctors can add to existing forms
  • Collier – So if they check it off and they weren’t?
    • Court would not entertain this

 

HB 81 Spotlight on Public Testimony

Brent Cooper, Texas Alliance for Patient Access – Against

  • Have a dispute between employer and employee, sticking doctor in the middle when they are not involved
  • TX has an informed consent statute, if requirements are met then there is a presumption ion court that you have given informed consent
  • Medical Disclosure Panel promulgates forms, not one for COVID, so it would be what is reasonable
  • Wide divergence of opinions on what COVID vaccines do and don’t do, doctor may be giving a what they believe is a full & complete discussion, but patient may not agree
  • HB 81 is attempting to create a super informed consent provision just for COVID-19; creates cause of action with additional damages not allowed in the existing informed consent statute
  • Chapter 74 of Civil Practices & Remedies Code invalidates other statutes in conflict
  • Chair Klick – So you’re saying this is a super informed consent?
    • Yes, goes way beyond statutory informed consent, puts burden on someone who isn’t involved in the employer/employee dispute
    • Damages only against the provider who didn’t set the policy mandating the vaccine
    • What will result is fewer doctors & nurses willing to give vaccinations if they would be liable under the statute
  • Smith – TX law provides for a Texas Medical Disclosure Panel, what is that panel supposed to accomplish?
    • Supposed to come up with standardized informed consent forms for procedures
  • Smith – So we have an aspect of law designed to handle these things as they come up; any disclosures for COVID-19?
    • Not aware of the Panel coming up with standard disclosure for COVID-19; when it is not created by the panel providers try do their best

 

Jackie Schlegel, Texans for Medical Freedom – For

  • Bill is a perfect example of looking for innovative solutions to problems faced by constituents
  • Informed consent is basic standard of care, but falls short in case of vaccination
  • Encourages committee to work with bill author to get HB 81 in the right place

 

Leslie Thomas, Self – For

  • Son was misinformed about the vaccine; information about risk was difficult to find or not available
  • Would ask that COVID-19 be substituted with all medical treatment
  • Collier – As it is written now are you for it?
    • Not as it is written now
  • Smith – You’re for the CS that Rep. Harrison is has written; would you like to change to neutral or against
    • Will stick with “for”

 

Jason Terk, Texas Medical Association, Texas Pediatric Society – Against

  • Informed consent plays everyday role in practice, but can’t know about what goes on outside of the exam room; shouldn’t be held liable for a 3rd party’s actions
  • HB 81 also departs from usual legal standards with attorneys fees, would significantly chill duty to discuss merits of COVID vaccines
  • Would impede ability of practice to serve patients
  • Chair Klick – Usual practice of your office when you have a child that comes in to receive the vaccine, assume you have a consent paperwork?
    • Yes
  • Chair Klick – And you have your own list of potential risk?
    • For standard vaccinations have standardized sheet, have special paperwork for COVID-19
  • Chair Klick – You do this just like you would for any medical procedure?
    • Yes
  • Collier – Who is authorized to administer a COVID vaccine?
    • Medical doctors, APRNs, PAs, pharmacists, anyone delegated by those people
  • Collier – Need a license?
    • No, have medical assistants who administer vaccines, medical assistants are not licensed
  • Collier – Could they be subject to lawsuit or violation under HB 81?
    • Very concerned about that, not comfortable with 130 year old case law to guard against this
  • Collier – Concerned about medical liability insurance going up as well; MAs are also not under authority of the TMB, but then you would be liable
    • They are acting as my agent in providing care
  • Collier – Law doesn’t preclude claim against MAs, are they health care providers?
    • Yes

 

Michelle Evans, Texans for Vaccine Choice – For

  • Highlights instance of people affected by choice not to take COVID vaccine; informed consent has repeatedly been recognized as human right that can only exist in absence of duress

 

Rebekah Chenelle, Dallas County Commissioner’s Court – On

  • Dallas County HHS requires informed consent for every vaccination administered, HB 81 would make the County provider liable for something they cannot anticipate
  • Bill does not provide a mechanism for local health care providers to determine if someone has been coerced
  • V Jones – Did you check with the author?
    • Yes, have spoken with author, do not believe actual knowledge is in the CS

 

Dr. Donald Murphy, Texas Medical Association – Against

  • Informed consent is a cornerstone of a trusting relationship between patient and health care professional
  • HB 81 redefines the established legal framework by making vaccinators liable for conduct of a 3rd party; creates new minimum $5k fine, patient does not need to be successful to recover attorneys fees, etc.
  • Restricts right of employers to protect employees, patients, and economic livelihoods from disease outbreaks, shouldn’t have to fear penalty from government to protect patients
  • Tinderholt – Is there a world where some of those things are cleaned up and your organization would support penalties against medical professional who coerced or compelled an individual?
    • In general this is not a good policy to restrict health care facilities in how they respond to events
  • Tinderholt – So is the answer no?
    • Businesses should be able to set their own policy
  • Tinderholt – Businesses or medical professionals?
    • Medical professionals are part of systems
  • Tinderholt – Medical professionals should be able to force people?
    • Two issues, one is consent, no medical professional would want to deliver care they don’t have consent for
    • Bill poisons the idea of informed consent and distorts it
    • Health care professionals don’t want to do anything against anyone’s will, but want to provide safe environment for care
  • Chair Klick – Consent from for those coming to your office for the COVID vaccine?
    • Yes
  • Chair Klick – And you list complications, side effects?
    • Yes
  • Chair Klick – You do support concept of informed consent
    • Yes
  • Collier – Do you have a form at your practice that asks a patient if they are being forced or coerced to take a treatment? Or is it informed consent about side effects?
    • Vaccine consent is sort of a discussion, risk vs. benefits
    • But don’t usually ask if the patient is being coerced or compelled, would assume if they were getting this against their will they would say so
    • But haven’t had this structure in place legally, idea that we would add more structure and risk for delivering vaccinations doesn’t make sense
  • Collier – Does it undermine the necessity or effectiveness if you have to ask additional questions?
    • Not sure it undermines, but it adds another topic, e.g. on top of everything covered in a Well Child visit
    • If I was an MA giving shots would I feel comfortable with another topic
  • Collier – MA is giving vaccine because you authorize them?
    • Yes, under my supervision
  • Collier – So both of you could be liable under the law?
    • Yes

 

Tom Glass, Texas Constitutional Enforcement – For

  • Declaration of Independence delineates inalienable rights, cannot be bargained away and most often associated with bodily autonomy
  • If we honor inalienable rights, contrary to public policy to force someone to bargain away right to not get vaccinated for employment, travel, etc.
  • Bill has written for COVID-19 for political purposes, experiment on people
  • Collier – Anyone should be protected against the mandate? Would that also apply to those who don’t have lawful status in TX?
    • Natural human right, should recognize rights of all human beings; don’t mind limitation
  • Collier – My understanding is the US Constitution applies to everybody
    • Question beyond my ability to answer

 

Cesar Lopez, Texas Hospital Association – On

  • Have had positive discussions with Rep. Harrison and his staff; currently under federal mandate to require COVID vaccination, trying to make sure this is worked into bill

 

Sheila Hemphill, Texas Right to Know – For

  • Not happy with the language, but for the bill; wanted COVID-19 wording to be changed to pandemic disease
  • COVID-19 vaccine rollout was mishandled with little oversight; highlights FDA discussions about side effects early on, Pfizer knew about 1,291 adverse events in February 21

 

Rep. Harrison closes

  • COVID mandates destroy medical freedom, make mockery of informed consent
  • Collier – Would counties be immune from lawsuits under the bill?
    • Provisions under the bill that prohibit forcing vaccines on someone else would apply to public and private
  • Collier – So someone working for the county and administering the vaccine, county could be held liable
    • Political subdivisions are prohibited from having mandate for COVID
    • Requirements to receive informed consent would apply to anyone
  • Collier – So yes they would be liable, they don’t have immunity
    • Any person licensed to administer COVID-19 vaccine would have to get informed consent
  • Collier – So a county
    • Possible, but the person giving the vaccine must get the vaccine
    • Law doesn’t discriminate if you are a private or public entity

 

HB 81 left pending