(a) Purpose. The Communicable Disease Prevention and Control Act, Health and Safety Code, §81.050, provides a mechanism by which an emergency response employee or volunteer or correctional officer who receives a bona fide exposure that places him or her at risk of a notifiable condition in the course of employment or volunteer service may request the Department of State Health Services (department) or the department's designee to order testing of the person who may have exposed the worker.
(b) Definitions. For the purposes of this section, the following words and/or terms will have the following meanings, unless the context clearly indicates otherwise.
  (1) Correctional officer--A worker whose normal duties and responsibilities include management or supervision of incarcerated or detained persons or an employee, contractor, or volunteer, other than a correctional officer, who performs a service in a correctional facility as defined by §1.07, Penal Code, or a secure correctional facility or secure detention facility as defined by §51.02, Family Code.
  (2) Emergency response employee or volunteer--An individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter, as defined under Health and Safety Code, §81.003.
  (3) Requestor--An emergency response employee or volunteer who presents a sworn affidavit to a health authority to request testing of a person who may have exposed him/her to a notifiable condition in the course of his/her duties.
  (4) Source--The person who may have exposed an emergency response employee or volunteer to a notifiable condition during the emergency response employee or volunteer's course of duties.
(c) Diseases and criteria that constitute exposure. The notifiable conditions and the criteria that constitute exposure to such diseases are as outlined in §97.11(c)(1) - (6) of this title (relating to Notification of Emergency Response Employees, Volunteers, or Other Persons Providing Emergency Care of Possible Exposure to a Disease).
(d) The department's designee. For the purposes of implementing the Health and Safety Code, §81.050(d), (e), and (h), the following physicians have been delegated by the department to be the department's designee who will determine if a risk of exposure to a notifiable condition has occurred:
  (1) the health authority for the jurisdiction in which the emergency response employee or volunteer is employed;
    (A) if the health authority does not choose to make a determination of the risk of exposure, a licensed physician employed by the local health department who has responsibility for the control of notifiable conditions in the jurisdiction served by the health department; or
    (B) if the health authority does not choose to make a determination of the risk of exposure and there is not a separate physician employed by the county or municipal health department with responsibility for the control of notifiable condition, or for counties which do not have an appointed health authority, the regional director of the department of which the county or municipality is a part; and
  (2) for the Texas Department of Criminal Justice (TDCJ), the TDCJ Deputy Director of Health Services (Institutional Division) shall serve as the designated health official in determining risk of exposure to correctional officers employed by the TDCJ.
(e) Criteria under which a request for mandatory testing can be made. A request under this section may be made only if the emergency response employee or volunteer:
  (1) has experienced the exposure in the course of his or her employment or volunteer service;
  (2) believes that the exposure places him or her at risk of a notifiable condition; and
  (3) presents to the department's designee a sworn affidavit that delineates the reasons for the request.
(f) Initial actions required of the department's designee. Upon receiving a request for mandatory testing in accordance with subsection (e) of this section, the department's designee shall:
  (1) review the emergency response employee or volunteer's request and inform him or her whether the request meets the criteria establishing risk of infection with a notifiable condition;
  (2) determine which diagnostic tests may be indicated to verify exposure to certain notifiable conditions;
  (3) give the source who is subject to the order prompt and confidential written notice of the order which must include the following items:
    (A) the grounds and provision of the order, and the factual basis for its issuance;
    (B) a referral to appropriate health care facilities where the source can be tested for certain notifiable conditions;
    (C) a notice to the source who is subject to the order of the right to refuse to be tested; and
    (D) a statement of the authority of the department's designee to ask for a court order requiring the test; and
  (4) request the prosecuting attorney who represents the state in district court to petition said court for a hearing on the order, in the event that the source who is subject to the order refuses to comply.
(g) Source's right to an attorney. If the source who is subject to the order refuses to comply, and a hearing in district court ensues, then:
  (1) the source has a right for an attorney to be present at the hearing;
  (2) the court shall appoint an attorney for a source who cannot afford legal representation; and
  (3) the source may not waive the right to an attorney unless he/she has consulted with an attorney.
(h) Court proceedings. The district court proceedings include:
  (1) a determination as to whether exposure occurred and whether the exposure presents a possible risk of infection as outlined in §97.11(c)(1) - (6) of this title;
  (2) consideration of evidence if introduced by either the attorney for the state and/or the attorney for the source;
  (3) at the conclusion of the hearing, taking appropriate action being either:
    (A) an order requiring counseling and testing of the person for certain notifiable conditions; or
    (B) a refusal to issue an order if the court has determined that the counseling and testing of the source is unnecessary; and
  (4) the option to assess court costs against the requestor if the court finds that there was not reasonable cause for the request.
(i) Additional actions required of the department's designee. The department's designee shall be responsible for the following actions with respect to testing:
  (1) develop protocols for coding test specimens to ensure that any identifying information concerning the source will be destroyed as soon as the testing is complete;
  (2) inform the requestor of the test results;
  (3) inform both the requestor and the source of the need for medical follow-up and counseling services in the event that the source is found to have a notifiable condition; and
  (4) advise appropriate postexposure medical follow-up as recommended by the United States Public Health Service.
(j) HIV counseling and testing. HIV counseling and testing conducted under this section must conform to the model protocol on HIV counseling and testing required under the Health and Safety Code, §85.081.
(k) Workers' compensation issues. For the purposes of qualifying for workers' compensation or any other similar benefits for compensation, the following shall apply:
  (1) An emergency response employee or volunteer who claims a possible work-related exposure to a notifiable condition must provide the employer with a sworn affidavit of the date and circumstances of the exposure and document that, not later than the tenth day after the date of the exposure, the emergency response employee or volunteer had a test result that indicated an absence of the notifiable condition.
  (2) An emergency response employee or volunteer exposed to a notifiable condition during the course of employment shall be entitled to the benefits described in the Government Code, Chapter 607.
  (3) A state emergency response employee or volunteer claiming an exposure to HIV infection in the normal course of his/her duties must follow the postexposure procedure mandated by the Health and Safety Code, §85.116, and §97.140 of this title (relating to Counseling and Testing for State Employees Exposed to Human Immunodeficiency Virus (HIV) Infection on the Job).
  (4) For posting and notice requirements, refer to the rules of the Texas Department of Insurance, Division of Workers' Compensation in Title 28, Texas Administrative Code, Chapter 110 (Required Notices of Coverage).
  (5) For further clarification of workers' compensation issues, emergency response employees or volunteers and their employers should contact the Texas Department of Insurance, Division of Workers' Compensation at 1-800-252-7031.
(l) Testing of the exposed person. An emergency response employee or volunteer who may have been exposed to a notifiable condition, may not be required to be tested.

Source Note: The provisions of this §97.12 adopted to be effective June 5, 2007, 32 TexReg 2997; amended to be effective June 28, 2016, 41 TexReg 4645