PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 37. MATERNAL AND INFANT HEALTH SERVICES
SUBCHAPTER U. EPINEPHRINE AUTO-INJECTOR POLICIES IN SCHOOLS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of §§37.601 - 37.611, concerning Epinephrine Auto-Injector Policies in Schools.
BACKGROUND AND PURPOSE
The purpose of the proposed repeal of 25 Texas Administrative Code (TAC) Chapter 37, Subchapter U, is to place all stock medication rules under 25 TAC Chapter 40. This rule proposal repeals 25 TAC, Chapter 37, Subchapter U. The new rules for 25 TAC Chapter 40, Subchapter E, Epinephrine Auto-Injector Policies in Schools, is published in this same issue of the Texas Register.
SECTION-BY-SECTION SUMMARY
The proposed repeal of §§37.601 - 37.611 removes the rules as no longer necessary under 25 TAC Chapter 37. The new rules in 25 TAC, Chapter 40, Subchapter F, §§40.81 - 40.89 aligns the rules with similar TAC rules relating to stock medications in schools, youth facilities, and other entities such as amusement parks, restaurants, and sport venues.
FISCAL NOTE
Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
DSHS has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;
(2) implementation of the proposed rules will not affect the number of DSHS employee positions;
(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;
(4) the proposed rules will not affect fees paid to DSHS;
(5) the proposed rules will not create new rules;
(6) the proposed rules will repeal existing rules;
(7) the proposed rules will not change the number of individuals subject to the rules; and
(8) the proposed rules will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not apply to small or micro-businesses, or rural communities.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas.
PUBLIC BENEFIT AND COSTS
Dr. Manda Hall, Associate Commissioner, Community Health Improvement Division, has determined that for each year of the first five years the rules are in effect, the public will benefit from having all stock medication rules in the same chapter of the TAC.
Donna Sheppard has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the repeals will not require these persons to alter their current business practices.
TAKINGS IMPACT ASSESSMENT
DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247; street address 701 West 51st Street, Austin, Texas 78751; or by email to SchoolHealth@dshs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule "23R051" in the subject line.
STATUTORY AUTHORITY
The repeals are adopted and authorized by Texas Education Code Chapter 38; and Texas Government Code §531.0055, and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
The repeals implement Texas Government Code §531.0055; Texas Education Code Chapter 38; and Texas Health and Safety Code Chapter 1001.
§37.601.Purpose.
§37.602.Voluntary Unassigned Epinephrine Auto-Injector Policies for School Districts, Open-enrollment Charter Schools, and Private Schools.
§37.603.Definitions.
§37.604.Applicability.
§37.605.Maintenance, Administration, and Disposal of Unassigned Epinephrine Auto-Injectors.
§37.606.Assignment and Recruitment of School Personnel and School Volunteers to be Trained to Administer Epinephrine Auto-Injectors.
§37.607.Training.
§37.608.Report on Administering Epinephrine Auto-Injectors.
§37.609.Notice to Parents Regarding Unassigned Epinephrine Auto-Injector Policies in Schools.
§37.610.Gifts, Grants, and Donations.
§37.611.Immunity from Liability.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 17, 2023.
TRD-202302566
Cynthia Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: September 3, 2023
For further information, please call: (512) 413-9089
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes new Subchapter E, §§40.61 - 40.71, concerning Epinephrine Auto-Injector Policies in Schools; and new Subchapter F, §§40.81 - 40.89, concerning Opioid Antagonist Medication Requirements in Schools. This proposal renames 25 Texas Administrative Code (TAC) Chapter 40, as "Stock Medication in Schools and Other Entities" to reflect the broader scope of stock medication rules that will be included under this chapter.
BACKGROUND AND PURPOSE
The purpose of the proposal is to implement Senate Bill (S.B.) 629, 88th Legislature, Regular Session, 2023, which amends Texas Education Code Chapter 38 by adding Subchapter E-1. S.B. 629 requires the Executive Commissioner of HHSC consult with the commissioner of the Texas Education Agency to adopt rules regarding maintenance, administration, and disposal of opioid antagonists. S.B. 629 also requires the rules to establish a process for checking inventory and the amount of training for school personnel and volunteers. Finally, S.B. 629 requires schools to report information on the administration of opioid antagonists to the commissioner of DSHS.
To place all stock medication rules under the same chapter in TAC, this rule proposal adds new Subchapter E, Epinephrine Auto-Injector Policies in Schools, to 25 TAC Chapter 40. The repeal of 25 TAC Chapter 37, Subchapter U is published in this same issue of the Texas Register.
This proposal adds new Subchapter F, Opioid Antagonist Medication Requirements in Schools, as required by S.B. 629.
SECTION-BY-SECTION SUMMARY
Subchapter E, Epinephrine Auto-Injector Policies In Schools
Proposed new §40.61 states the purpose of the subchapter, which is to establish minimum standards for administering, maintaining, and disposing of epinephrine auto-injectors in school districts, open-enrollment charter schools, and private schools who adopt unassigned epinephrine auto-injector policies. These standards are implemented under Texas Education Code Chapter 38, Subchapter E.
Proposed new §40.62 states that school districts, open-enrollment charter schools, and private schools may adopt and implement a written policy regarding the maintenance, administration, and disposal of unassigned epinephrine auto-injectors at each school campus. Policies adopted must comply with Texas Education Code §38.208.
Proposed new §40.63 defines terms used in Subchapter E.
Proposed new §40.64 states that the rules apply to any school district, open-enrollment charter school, or private school who voluntarily chooses to adopt and implement a written policy regarding the maintenance, administration, and disposal of unassigned epinephrine auto-injectors on each school campus.
Proposed new §40.65 outlines the standards for maintenance, administration, and disposal of unassigned epinephrine auto-injectors for school districts, open-enrollment charter schools, or private schools. The standards address unassigned epinephrine auto-injector prescriptions; policy implementation; training for school personnel or school volunteers to administer an unassigned epinephrine auto-injector; notification for emergency medical services and parents; records retention; and epinephrine auto-injector storage, replacement, and disposal.
Proposed new §40.66 addresses the assignment and recruitment of school personnel and school volunteers to be trained to administer epinephrine auto-injectors.
Proposed new §40.67 addresses training requirements for school personnel and volunteers in the recognizing of anaphylaxis signs and symptoms and administration of an unassigned epinephrine auto-injector.
Proposed new §40.68 requires schools to report on administering epinephrine auto-injectors per Texas Education Code §38.209.
Proposed new §40.69 addresses the notification to parents or guardians regarding unassigned epinephrine auto-injector policies in schools.
Proposed new §40.70 addresses gifts, grants, and donations that a school district, open-enrollment charter school, or private school may accept to implement the unassigned epinephrine auto-injector policy.
Proposed new §40.71 addresses the immunity from liability per Texas Education Code §38.215.
Subchapter F, Opioid Antagonist Medication Requirements In Schools
Proposed new §40.81 describes the purpose of the subchapter, which is to establish minimum standards for administering, maintaining, and disposing of opioid antagonist medication in school districts, open-enrollment charter schools, and private schools that adopt opioid antagonist medicine policies. These standards are implemented under Texas Education Code Chapter 38, Subchapter E-1.
Proposed new §40.82 defines terms used in Subchapter F relating to the maintenance, administration, and disposal of opioid antagonist medication.
Proposed new §40.83 states that the rules apply to school districts, open-enrollment charter schools, and private schools that may adopt and implement a written policy regarding the maintenance, administration, and disposal of opioid antagonist medication.
Proposed new §40.84 addresses unassigned opioid antagonist medication policy requirements in school districts, open-enrollment charter schools, or private schools.
Proposed new §40.85 states that once a policy is implemented, the school district, open-enrollment charter school, or private school must stock opioid antagonist medication. The new rule addresses the authorized healthcare provider prescription, administration to a person who is reasonably believed to be experiencing an opioid-related drug overdose, and the storage and disposal of opioid antagonist medication.
Proposed new §40.86 addresses training requirements for school personnel and school volunteers in the administration of opioid antagonist medication, recognition of opioid-related drug overdose, disposal of used or expired opioid antagonists, and use of an opioid antagonist trainer device.
Proposed new §40.87 addresses the required reporting of administering opioid antagonist medications and retention of records.
Proposed new §40.88 addresses gifts, grants, donations, and federal and local funds that a school district, open-enrollment charter school, or private school may accept to implement the unassigned opioid antagonist policy.
Proposed new §40.89 addresses the immunity from liability as outlined in this subchapter or Texas Education Code §38.227.
FISCAL NOTE
Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules do not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
DSHS has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;
(2) implementation of the proposed rules will not affect the number of DSHS employee positions;
(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;
(4) the proposed rules will not affect fees paid to DSHS;
(5) the proposed rules will create new rules;
(6) the proposed rules will not expand, limit, or repeal existing rules;
(7) the proposed rules will not change the number of individuals subject to the rules; and
(8) the proposed rules will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule does not apply to small or micro-businesses, or rural communities.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Dr. Manda Hall, Associate Commissioner, Community Health Improvement Division, has determined that for each year of the first five years the rules are in effect, the public will benefit from safer public, charter, and private schools that are authorized to administer opioid antagonist medicine to a person who is reasonably believed to be experiencing an opioid overdose. The public will also benefit from having all stock medication rules in the same chapter of the TAC.
Donna Sheppard has also determined that for the first five years the rules are in effect, schools that are required to comply with the proposed rules or that elect to adopt and implement a voluntary policy regarding the maintenance, administration, and disposal of opioid antagonists may incur economic costs for opioid antagonist supplies. School campuses would most likely use a currently available over-the-counter, nasal spray opioid antagonist. DSHS estimates that nasal spray opioid antagonists cost approximately $47.50 per box and have a shelf life of three years. Any school district, open-enrollment charter school, or private school that adopts a policy under this rule is recommended to stock 1-5 boxes of an opioid antagonist depending on the size of the school campus and need. Based on data from the Texas Education Agency, which is the agency that regulates public and charter schools, there are approximately 8,778 k-12 public campuses and 951 k-12 charter school campuses, in Texas in 2023. According to the Texas Private School Accreditation Commission, there are approximately 1,179 private k-12 schools in Texas in 2023. Assuming all 10,908 schools adopt this policy and inventory is replaced due to use or expiration over the following three years, and the price of the medication is $47.50, the total cost for schools will initially be $518,130 (10,908 schools multiplied by $47.50/medication) with an additional $518,130, per year. The cost could be as high as ($518,130 multiplied by 5 boxes) $2,590,650 if all schools purchase, use, or replace over five years.
The cost may vary significantly due to: (1) not all schools are required to adopt a policy and stock medication, and some schools may choose not to do so; (2) the recommended amount of medication to stock varies depending on the need and size of the school campus; and (3) schools may be able to obtain opioid antagonist medication at no cost from HHSC, non-profit organizations, or other sources.
TAKINGS IMPACT ASSESSMENT
DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247; street address 701 West 51st Street, Austin, Texas 78751; or by email to SchoolHealth@dshs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule "23R051" in the subject line.
SUBCHAPTER E. EPINEPHRINE AUTO-INJECTOR POLICIES IN SCHOOLS
STATUTORY AUTHORITY
The new rules are required to comply with Texas Education Code Chapter 38, Subchapter E. The new rules are also authorized by Texas Government Code §531.0055, and Texas Health and Safety Code §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
The new rules implement Texas Education Code Chapter 38, Texas Government Code §531.0055, and Texas Health and Safety Code Chapter 1001.
§40.61.Purpose.
The purpose of this subchapter is to establish minimum standards for administering, maintaining, and disposing of epinephrine auto-injectors in school districts, open-enrollment charter schools, and private schools that adopt unassigned epinephrine auto-injector policies. These standards are implemented under Texas Education Code Chapter 38, Subchapter E.
§40.62.Voluntary Unassigned Epinephrine Auto-Injector Policies for School Districts, Open-enrollment Charter Schools, and Private Schools.
(a) A school district, open-enrollment charter school, or private school may adopt and implement a written policy regarding the maintenance, administration, and disposal of unassigned epinephrine auto-injectors at each school campus.
(b) If a written policy is adopted under this subchapter, the policy must comply with Texas Education Code §38.208 and this subchapter.
(c) A school district or open-enrollment charter school that chooses to adopt and implement a written unassigned epinephrine auto-injector policy under Texas Education Code Chapter 38, Subchapter E, and this subchapter, is not required to create an additional policy for care of certain students at risk for anaphylaxis under Texas Education Code §38.0151.
§40.63.Definitions.
The following terms and phrases, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) All hours the campus is open--At a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.
(2) Anaphylaxis--As defined in Texas Education Code §38.201.
(3) Authorized healthcare provider--A physician or person who has been delegated prescriptive authority under Texas Occupations Code Chapter 157.
(4) Campus--A unit of a school district, open-enrollment charter school, or private school that has an assigned administrator, has enrolled students who are counted for average daily attendance, has assigned instructional staff, provides instructional services to students, has one or more grades in the range from early childhood education through grade 12 or is ungraded, and complies with relevant Texas laws.
(5) Physician--As defined in Texas Education Code §38.201.
(6) Private school--As defined in Texas Education Code §38.201.
(7) School nurse--As defined in Title 19, Texas Administrative Code §153.1022.
(8) School personnel--As defined in Texas Education Code §38.201.
(9) School volunteer--As defined in Texas Education Code §22.053.
(10) Unassigned epinephrine auto-injector--An epinephrine auto-injector prescribed by an authorized healthcare provider in the name of the school issued with a non-patient-specific standing delegation order for the administration of an epinephrine auto-injector, issued by a physician or person who has been delegated prescriptive authority under Texas Occupations Code Chapter 157.
§40.64.Applicability.
This subchapter applies to any school district, open-enrollment charter school, or private school that voluntarily chooses to adopt and implement a written policy regarding the maintenance, administration, and disposal of unassigned epinephrine auto-injectors on each school campus.
§40.65.Maintenance, Administration, and Disposal of Unassigned Epinephrine Auto-Injectors.
(a) A school district, open-enrollment charter school, or private school shall obtain a prescription from an authorized healthcare provider each year, to stock, possess, and maintain at least one unassigned adult epinephrine auto-injector pack (two doses) on each school campus as described in Texas Education Code §38.211.
(1) A school may choose to stock unassigned pediatric epinephrine auto-injector packs, based on the need of the school's population.
(2) A school district or the governing body of an open-enrollment charter school or private school may develop, as part of the policy, provisions for additional doses to be stocked and utilized at off campus school events, or in transit to or from school events.
(b) Each school district superintendent, open-enrollment charter school administrator, or private school administrator will designate appropriate school personnel to coordinate and manage policy implementation, including training of school personnel, and the acquisition or purchase, usage, expiration, and disposal of unassigned epinephrine auto-injectors. Throughout the school calendar year, the designated school personnel shall coordinate with each campus to ensure that the unassigned epinephrine auto-injectors are checked monthly for expiration and usage and the findings are documented.
(c) At least one school personnel or one school volunteer who is authorized and trained to administer an unassigned epinephrine auto-injector must be present on campus during all hours the campus is open for school-sponsored activities.
(d) School personnel or school volunteers who are trained and authorized may administer an unassigned epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis on a school campus, or as indicated in the school's unassigned epinephrine auto-injector policy.
(e) Local emergency medical services must be promptly notified by the school when an individual is suspected of experiencing anaphylaxis and when an epinephrine auto-injector is administered. If the trained school personnel or school volunteer is the only individual available to notify emergency medical services, the trained individual should administer the unassigned epinephrine auto-injector before notifying emergency medical services.
(f) The parent, legal guardian, or emergency contact must be promptly notified by the school when an unassigned epinephrine auto-injector is utilized on their child as soon as is feasible during the emergency response to suspected anaphylaxis. School records of the administration of the unassigned epinephrine auto-injector and suspected anaphylaxis must be provided to the parent or guardian of the recipient upon request.
(g) Records relating to implementation and administration of the school's unassigned epinephrine auto-injector policy shall be retained per the record retention schedule for records of public school districts found in Title 13, Texas Administrative Code §7.125.
(h) Unassigned epinephrine auto-injectors shall be stored in a secure, easily accessible area for an emergency, in accordance with the manufacturer's guidelines. It is recommended that the school administrator develop a map to be placed in high traffic areas that indicates the location of the unassigned epinephrine auto-injectors on each school campus. It is recommended that the map also indicates the locations of the automated external defibrillator.
(i) The school district, open-enrollment charter school, or private school shall develop a plan to replace, as soon as reasonably possible, any unassigned epinephrine auto-injector that is used or close to expiration.
(j) Used unassigned epinephrine auto-injectors shall be considered infectious waste and shall be disposed of according to the school's bloodborne pathogen control policy.
(k) Expired unassigned epinephrine auto-injectors shall be disposed of according to the school's medication disposal policy.
§40.66.Assignment and Recruitment of School Personnel and School Volunteers to be Trained to Administer Epinephrine Auto-Injectors.
(a) At each school campus in which a school adopts an unassigned epinephrine auto-injector policy, the school principal may:
(1) assign school personnel or school volunteers to be trained to administer unassigned epinephrine auto-injectors; or
(2) seek school personnel or school volunteers who volunteer to be trained to administer unassigned epinephrine auto-injectors.
(b) In order to increase the number of trained individuals in the administration of unassigned epinephrine auto-injectors, schools may distribute to school personnel and school volunteers in the school district, open-enrollment charter school, or private school, at least once per school year, a notice that includes:
(1) a description of the request seeking volunteers to be trained to administer an epinephrine auto-injector to a person believed to be experiencing anaphylaxis; and
(2) a description of the training that the school personnel or school volunteers will receive in the administration of epinephrine with an auto-injector.
(c) Trained school personnel or school volunteers who administer the unassigned epinephrine auto-injector must submit a signed statement indicating that they agree to perform the service of administering an unassigned epinephrine auto-injector to a student or individual that may be experiencing anaphylaxis.
§40.67.Training.
Each school district, open-enrollment charter school, or private school that adopts an unassigned epinephrine auto-injector written policy under this subchapter is responsible for training school personnel and school volunteers in the recognizing of anaphylaxis signs and symptoms and administration of an unassigned epinephrine auto-injector. Each assigned school personnel or school volunteer shall receive initial training and an annual refresher training. Training shall be consistent with the most recent Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs published by the federal Centers for Disease Control and Prevention.
(1) Training may be provided in a formal face-to-face training session or through an online education course.
(2) Training required under this subchapter must meet the requirements found in Texas Education Code §38.210 and include information on properly inspecting unassigned epinephrine auto-injectors for usage and expiration.
(3) The initial training must include hands-on training with an epinephrine auto-injector trainer.
(4) The annual refresher training must include a hands-on demonstration of administration skills.
(5) The training must also include information about promptly notifying local emergency medical services.
(6) Each school campus shall maintain training records and make available upon request a list of those school personnel or school volunteers trained and authorized to administer the unassigned epinephrine auto-injector on the campus.
§40.68.Report on Administering Epinephrine Auto-Injectors.
(a) A report shall be submitted by the school no later than the 10th business day after the date school personnel or a school volunteer administers an epinephrine auto-injector in accordance with the unassigned epinephrine auto-injector policy adopted under this subchapter. The report shall be submitted to the individuals and entities identified in Texas Education Code §38.209, including the commissioner of the Texas Education Agency and the commissioner of the Department of State Health Services (DSHS).
(b) Notifications to the commissioner of DSHS shall be submitted on the designated electronic form available on the DSHS School Health Program website found at dshs.texas.gov.
§40.69.Notice to Parents Regarding Unassigned Epinephrine Auto-Injector Policies in Schools.
(a) If a school district, open-enrollment charter school, or private school implements an unassigned epinephrine auto-injector policy under this subchapter, the district or school shall provide written or electronic notice to a parent or guardian of each student in accordance with Texas Education Code §38.212.
(b) If a school district, open-enrollment charter school, or private school changes or discontinues the policy under this subchapter, written or electronic notice detailing the change or discontinuation must be provided to a parent or guardian of each student within 15 calendar days.
§40.70.Gifts, Grants, and Donations.
A school district, open-enrollment charter school, or private school may accept gifts, grants, donations, and federal and local funds to implement the unassigned epinephrine auto-injector policy in accordance with Texas Education Code §38.213.
§40.71.Immunity from Liability.
A person who in good faith takes, or fails to take, any action under this subchapter or Texas Education Code Chapter 38, Subchapter E is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act in accordance with the Texas Education Code §38.215.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 17, 2023.
TRD-202302567
Cynthia Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: September 3, 2023
For further information, please call: (512) 413-9089
STATUTORY AUTHORITY
The new rules are required to comply with Texas Education Code Chapter 38, Subchapter E. The new rules are also authorized by Texas Government Code §531.0055, and Texas Health and Safety Code §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
The new rules implement Texas Education Code Chapter 38, Texas Government Code §531.0055, and Texas Health and Safety Code Chapter 1001.
§40.81.Purpose.
The purpose of this subchapter is to establish minimum standards for administering, maintaining, and disposing of opioid antagonist medication in school districts, open-enrollment charter schools, and private schools that adopt opioid antagonist medicine policies. These standards are implemented under Texas Education Code Chapter 38, Subchapter E-1.
§40.82.Definitions.
The following terms and phrases, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
(1) Authorized healthcare provider--A physician, as defined in Texas Education Code §38.201, or person who has been delegated prescriptive authority by a physician under Texas Occupations Code Chapter 157.
(2) Campus--A unit of a school district, open-enrollment charter school, or private school that has an assigned administrator, has enrolled students who are counted for average daily attendance, has assigned instructional staff, provides instructional services to students, has one or more grades in the range from early childhood education through grade 12 or is ungraded, and complies with relevant Texas laws.
(3) Opioid antagonist--As defined in Texas Health and Safety Code §483.101, any drug that binds to opioid receptors and blocks or otherwise inhibits the effects of opioids acting on those receptors.
(4) Opioid-related drug overdose--As defined in Texas Health and Safety Code §483.101, a condition, evidenced by symptoms of extreme physical illness, decreased level of consciousness, constriction of the pupils, respiratory depression, or coma, that a layperson would reasonably believe to be the result of the consumption or use of an opioid.
(5) Private school--As defined in Texas Education Code §38.201.
(6) School personnel--As defined in Texas Education Code §38.201.
(7) School volunteer--As defined in Texas Education Code §22.053.
§40.83.Applicability.
This subchapter applies to any school district, open-enrollment charter school, or private school that adopts and implements a written policy regarding the maintenance, administration, and disposal of opioid antagonist medication on a campus or campuses.
§40.84.Required and Voluntary Opioid Antagonist Policies.
(a) Each school district shall adopt and implement a policy regarding the maintenance, administration, and disposal of opioid antagonists at each campus in the district that serves students in grades 6 through 12 and may voluntarily adopt and implement such a policy at each campus in the district, including campuses serving students in a grade level below grade 6.
(b) An open-enrollment charter school or private school may adopt and implement a policy regarding the maintenance, administration, and disposal of opioid antagonists. If a school adopts a policy under this subchapter, the opioid antagonist policy must comply with the Texas Education Code §38.222. The school may apply the policy:
(1) only at campuses of the school serving students in grades 6 through 12; or
(2) at each campus of the school, including campuses serving students in a grade level below grade 6.
(c) A policy adopted under this subchapter must:
(1) provide that school personnel and school volunteers who are authorized and trained may administer an opioid antagonist to a person who is reasonably believed to be experiencing an opioid-related drug overdose;
(2) require that each school campus subject to a policy adopted under this subchapter have one or more school personnel members or school volunteers authorized and trained to administer an opioid antagonist present during regular school hours;
(3) establish the number of opioid antagonists that must be available at each campus at any given time; and
(4) require that the supply of opioid antagonists at each school campus subject to a policy adopted under this subchapter must be stored in a secure location and be easily accessible to school personnel and school volunteers authorized and trained to administer an opioid antagonist.
§40.85.Maintenance, Administration, and Disposal of Opioid Antagonist Medication.
(a) Once a school district, open-enrollment charter school, or private school adopts an opioid antagonist medication policy, a campus that implements an opioid policy must stock opioid antagonist medication as defined by §40.84 of this subchapter (relating to Required and Voluntary Opioid Antagonist Policies).
(b) A campus must obtain a prescription from a physician or a person who has been delegated prescriptive authority each year to stock, possess, and maintain the established number of opioid antagonists determined by a school district, on each campus as described in Texas Education Code §38.225.
(1) The campus must renew this prescription or obtain a new prescription annually.
(2) The number of additional doses may be determined by an individual campus review led by a physician or a person who has been delegated prescriptive authority.
(c) A physician or other person who has been delegated prescriptive authority under Texas Occupations Code Chapter 157 and prescribes opioid antagonist medication under subsection (a) of this section must provide the school district, open-enrollment charter school, or private school with a standing order for administration of an opioid antagonist medication to a person who is reasonably believed to be experiencing an opioid-related drug overdose. The standing order must comply with the Texas Education Code §38.225.
(d) The unassigned opioid antagonist medication must be stored in a secure location and be easily accessible, in accordance with the manufacturer's guidelines and local policy of the school district, open-enrollment charter school, or private school.
(e) Used unassigned opioid antagonists shall be considered infectious waste and shall be disposed of according to the school's bloodborne pathogen control policy.
(f) Expired unassigned opioid antagonists must be disposed of in accordance with the Federal Drug Administration's disposal of unused medications guidelines and local policy of the school district, open-enrollment charter school, or private school.
§40.86.Training.
(a) Each school district, open-enrollment charter school, and private school that adopts a written unassigned opioid antagonist policy under Texas Education Code §38.222, is responsible for training school personnel and school volunteers in the administration of an opioid antagonist.
(b) Training under this subchapter must:
(1) include information on:
(A) recognizing the signs and symptoms of an opioid-related drug overdose;
(B) responding to an opioid-related drug overdose and administering an opioid antagonist;
(C) implementing emergency procedures, after administering an opioid antagonist;
(D) understanding the medical purpose and misuse of opioids;
(E) practicing the administration of an opioid antagonist with an opioid antagonist trainer device; and
(F) properly disposing of used or expired opioid antagonists;
(2) be provided annually in a formal training session or through online education; and
(3) be provided in accordance with the policy adopted under Texas Education Code §21.4515.
(c) Each campus must maintain training records and must make available upon request a list of school personnel and school volunteers that are trained and authorized to administer the unassigned opioid antagonist medication on the campus.
§40.87.Report on Administering Unassigned Opioid Antagonist Medication.
(a) Records relating to implementing and administering the school district, open-enrollment charter school, or private school's unassigned opioid antagonist medication policy must be retained per the campus record retention schedule.
(b) The campus must submit the report no later than the 10th business day after the date a school personnel member or school volunteer administers an opioid antagonist in accordance with the unassigned opioid antagonist medication policy adopted under this subchapter. The report shall be submitted to the individuals and entities identified in Texas Education Code §38.223.
(c) Notifications to the commissioner of the Department of State Health Services (DSHS) must be submitted on the designated electronic form available on DSHS's School Health Program website found at dshs.texas.gov.
§40.88.Gifts, Grants, and Donations.
A school district, open-enrollment charter school, or private school may accept gifts, grants, donations, and federal and local funds to implement this subchapter.
§40.89.Immunity from Liability.
A person who in good faith takes, or fails to take, any action under this subchapter, or Texas Education Code Chapter 38, Subchapter E-1, is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act in accordance with Texas Education Code §38.227.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 17, 2023.
TRD-202302568
Cynthia Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: September 3, 2023
For further information, please call: (512) 413-9089