PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 40. STOCK MEDICATION IN SCHOOLS AND OTHER ENTITIES
SUBCHAPTER D. MAINTENANCE AND ADMINISTRATION OF MEDICATION FOR RESPIRATORY DISTRESS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to 25 Texas Administrative Code (TAC) Chapter 40, Subchapter D, §§40.41 - 40.49, concerning Maintenance and Administration of Asthma Medication.
Section 40.44 and §40.46 are adopted with changes to the proposed text as published in the November 15, 2024, issue of the Texas Register (49 TexReg 9183) and these rules will be republished. Sections 40.41 - 40.43, 40.45, and 40.47 - 40.49 are adopted without changes to the proposed text as published in the November 15, 2024, issue of the Texas Register (49 TexReg 9183), and therefore will not be republished.
BACKGROUND AND JUSTIFICATION
The adoption implements Senate Bill (S.B.) 294, 88th Legislature, Regular Session, 2023, which amends Texas Education Code (TEC) Chapter 38, Subchapter E by replacing references to asthma medication with medication for respiratory distress. As required by TEC §38.208, the Texas Education Agency (TEA) and the Stock Epinephrine Advisory Committee (SEAC) were consulted and provided recommendations to the proposed rules relating to the maintenance, administration, and disposal of medication for respiratory distress at a school campus subject to a policy adopted and implemented by each school district, open-enrollment charter school, and private school. TEC §38.208 also requires the rules to establish the process for checking inventory, the amount of training for school personnel and volunteers, and the types of medication that may be administered. Finally, TEC §38.2091 requires schools to report information on the administration of medication for respiratory distress to the commissioner of DSHS.
COMMENTS
The 31-day comment period ended December 16, 2024.
During this period, DSHS received comments from five commenters regarding the proposed rules, including three school nurses, the TEA, and the Asthma and Allergy Foundation of America, MidStates Chapter. In consultation with DSHS School Health Program attorney, as appropriate, comments were taken into consideration and a summary of comments and DSHS's responses follows.
Comment: Several commenters suggested that they oppose requiring schools to stock medication for respiratory distress and that lack of funding to schools makes requiring medication a barrier to the adoption and implementation of a medication for respiratory distress policy in schools.
Response: DSHS acknowledges the suggestions and declines to make changes. DSHS respectfully informs the commenters that the implementation of this policy is voluntary as stated in TEC §38.208.
Comment: Several commenters suggested school staff are reluctant to be trained as unlicensed personnel, are fearful of the responsibility, and are not qualified to perform a nursing assessment to establish need to administer medication for respiratory distress.
Response: DSHS acknowledges the suggestions of the commenters and declines to make changes. DSHS reminds the commenters that this is a voluntary program, however, Texas Administrative Code, Chapter 40, Subchapter D, Maintenance and Administration of Medication for Respiratory Distress and TEC §38.208 include training standards consistent with the recommendations of the SEAC and the TEA. These recommendations consider the burden to school personnel and the benefits of implementing a policy. The rules of this subchapter are based on the most current evidence-based data that support school staff and volunteers on how to recognize the signs and symptoms of respiratory distress, administering medication for respiratory distress, and implementing emergency procedures, if necessary, after administering medication for respiratory distress.
Comment: One commenter suggests students are unlikely to experience their first episode of respiratory distress on a school campus, and administering unassigned medication for respiratory distress to a student removes the opportunity for the student to be assessed and diagnosed by a physician, allowing medical services to be bypassed. The commenter also suggests the lack of collaboration with a medical team and parents reduces parent accountability and places undue pressure on school staff; the commenter suggests nurses should stabilize the student in respiratory distress and contact EMS, but not administer stock albuterol. The commenter also suggests assessments performed by school nurses to appropriate students should be provided to determine their level of care coordination, including referrals and action plans. The commenter suggests school nurses should be collaborating with families, so that the families are responsible to provide the medication and not the school nurse. Finally, the commenter suggests students with a diagnosis of asthma should already have their rescue medication on campus as well as be following a preventative regimen, if needed.
Response: DSHS acknowledges the commenter's suggestions but declines to make changes. For schools that adopt the policy, the rules require the school refer a student who doesn't have an asthma diagnosis to a primary care provider and notify the parent of the referral. The rule is intended as an optional policy school districts may utilize to support students, staff, and visitors diagnosed or undiagnosed with asthma. Please refer to TEC §38.208.
Comment: TEA suggests additional clarity on §40.44(a)(1)(B). The commenter suggested the language from TEC §38.208(b-1) and TEC §38.208(d-1) should be combined to include the administration of medication for respiratory distress at a school-sponsored or school-related activity on or off school property.
Response: DSHS agrees with TEA's suggestion relating to the addition of language from TEC §38.208(b-1) relating to the administration of medication for respiratory distress at a school-sponsored or school-related activity on or off school property. DSHS amends §40.44(a)(1) by adding new subparagraph (C) which states: "policy must state that school personnel or a school volunteer authorized and trained to administer unassigned medication for respiratory distress may administer medication for respiratory distress at a school-sponsored or school-related activity on or off school property;" and renumbering of previous (a)(1)(C) as new (a)(1)(D).
Comment: TEA suggests the language "subject to available funding" in §40.44(a)(2) and (c)(1)(C), and §40.45(b)(2) negates what is established in TEC §38.208(f).
Response: DSHS acknowledges the commenter's suggestions but declines to make changes. DSHS respectfully disagrees the language in §40.44(a)(2) and (c)(1)(C), and §40.45(b)(2) negates TEC §38.208(f), because the rules establishing the amount of medication that must be present on campuses are to be implemented in schools that voluntarily choose to adopt a medication for respiratory distress policy in which "subject to available funding" would be taken into consideration.
Comment: TEA suggested formatting the rules in §40.46 to the same format of §40.47 by renumbering §40.46(a)(5) to §40.46(a)(1).
Response: DSHS agrees to reformat §40.46 to follow the format of §40.44 and §40.47 by renumbering §40.46(a)(5) to §40.46(a)(1) and renumbering (a)(1) to (a)(5) without any change to the language.
Comment: One commenter suggested the addition of language specifying brands of spacers (valved holding chamber) within the rules.
Response: DSHS acknowledges commenter's suggestion but declines to make changes. Please refer to the broad language within §40.42(12)(A) delivered by metered-dose inhaler (MDI) with a spacer (valved holding chamber) or by a nebulizer as a rescue medication; leaving type and brand of spacer (valved holding chamber) up to the discretion of the schools.
Comment: One commenter suggests the rules should not require either MDIs or nebulizers and that MDI should be the preferred option with secondary option being the nebulizer. Commenter also suggests utilizing nebulizers in schools should not keep schools from using MDIs as MDIs are much more portable. Lastly, the commenter suggests one MDI is not enough unless a school is very small.
Response: DSHS acknowledges commenter's suggestions but declines to make changes. Please refer to TEC §38.208(c)(5) in which DSHS, in consultation with TEA and SEAC, established rules on the types of medication that may be administered to persons experiencing respiratory distress based on a review of the best available medical evidence. The rules state schools must obtain at least one MDI with appropriate spacer (valved holder chamber) or at least five vials of nebulizer solution with appropriate nebulizer-required equipment to accommodate the developmental needs of the student population.
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules 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 adoption is required to comply with Texas Education Code Chapter 38, Subchapter E.
§40.44.Voluntary Unassigned Medication for Respiratory Distress Policies.
(a) A school district, open-enrollment charter school, or private school may voluntarily adopt and implement a written policy regarding the maintenance, administration, and disposal of unassigned medication for respiratory distress at each campus.
(1) If a written policy is adopted under this subchapter, the:
(A) unassigned medication for respiratory distress policy must comply with TEC §38.208;
(B) campus must have at least one school personnel or school volunteer authorized and trained to administer unassigned medication for respiratory distress present during regular school hours;
(C) policy must state school personnel or a school volunteer authorized and trained to administer unassigned medication for respiratory distress may administer medication for respiratory distress at a school-sponsored or school-related activity on or off school property; and
(D) school personnel or school volunteer may not be subject to any penalty or disciplinary action for refusing to administer or receive training to administer unassigned medication for respiratory distress, as applicable.
(2) Subject to the availability of funding, a school district, open-enrollment charter school, or private school choosing to voluntarily adopt such a policy must allow for treatment of multiple students and secure or obtain at least:
(A) one MDI with appropriate spacers (valved holding chambers) to accommodate the developmental needs of the student population, or
(B) at least five vials of nebulizer solution with appropriate nebulizer-required equipment to accommodate the developmental needs of the student population.
(b) In the development of an unassigned medication for respiratory distress policy, a school district, open-enrollment charter school, or private school may consider performing a review to include:
(1) consultation with school nurses, the local school health advisory committee, local healthcare providers, or any department or organization involved with student well-being;
(2) campus geography; and
(3) student population size.
(c) If a school district, open-enrollment charter school, or private school voluntarily adopts an unassigned medication for respiratory distress policy, the policy must include:
(1) the designated campus administrator to coordinate and manage policy implementation, which includes:
(A) conducting a review at the campus to determine the need for additional doses;
(B) training school personnel and school volunteers;
(C) acquiring or purchasing, maintaining, storing, and using unassigned medication for respiratory distress, subject to available campus funding; and
(D) disposing of expired unassigned medication for respiratory distress;
(2) a list of trained and authorized school personnel and school volunteers available to administer unassigned medication for respiratory distress;
(3) the locations of unassigned medication for respiratory distress in compliance with TEC §38.208;
(4) the procedures for notifying a parent, prescribing authorized healthcare provider, and the student's primary healthcare provider when unassigned medication for respiratory distress is administered;
(5) a plan to check inventory of unassigned medication for respiratory distress for expiration at least twice during the school year, to replace, as soon as reasonably possible, and to document the findings;
(6) a referral process to the student's primary healthcare provider if the student's parent or guardian has not notified the school the student has been diagnosed with asthma, referral must include:
(A) symptoms of respiratory distress observed;
(B) name and dosage of the unassigned medication for respiratory distress administered to the student;
(C) patient care instructions given to the student; and
(D) information about the purpose and use of an asthma action plan and medical authorization for schools, including a blank copy of the plan and authorization the provider completes and returns to the school; and
(7) the process for providing information to assist the parent or guardian in selecting a primary healthcare provider for the student if the student received unassigned medication for respiratory distress and does not have a primary healthcare provider or the parent or guardian of the student has not engaged a primary healthcare provider for the student.
(d) An adopted unassigned medication for respiratory distress policy must be publicly available.
§40.46.Training.
(a) A school district, open-enrollment charter school, or private school that chooses to adopt a written unassigned medication for respiratory distress policy is responsible for training school personnel or school volunteers in the administration of unassigned medication for respiratory distress. Each authorized school personnel or school volunteer must receive initial training and an annual refresher training. The training must:
(1) meet the requirements found in TEC §38.210;
(2) cover the authorized healthcare provider's standing order;
(3) include processes to follow-up with the prescribing authorized healthcare provider and the student's primary healthcare provider;
(4) provide information on the report required after administering unassigned medication for respiratory distress under §40.47 of this subchapter (relating to Report on Administering Unassigned Medication for Respiratory Distress);
(5) include information on the adopted unassigned medication for respiratory distress policy;
(6) incorporate hands-on training with unassigned medication for respiratory distress; and
(7) inform school personnel or school volunteers of the purpose and use of asthma action plans.
(b) Each campus must maintain training records and must make available upon request a list of school personnel and school volunteers trained and authorized to administer unassigned medication for respiratory distress at the campus or at a school-sponsored event.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 30, 2025
TRD-202500347
Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: February 19, 2025
Proposal publication date: November 15, 2024
For further information, please call: (512) 413-9089
SUBCHAPTER C. TEXAS REGULATIONS FOR CONTROL OF RADIATION
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts an amendment to §289.130, concerning the Radiation Advisory Board.
The amendment to §289.130 is adopted without changes to the proposed text as published in the November 1, 2024, issue of the Texas Register (49 TexReg 8674). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
Senate Bill (S.B.) 1592, 88th Legislature, Regular Session, 2023, amends Texas Health and Safety Code (HSC) Title 5, Subtitle D, Chapter 401, §401.015(a), requiring the addition of one new representative licensed by the Board of Veterinary Medical Examiners to the Radiation Advisory Board and changing the composition of the board from 18 to 19 representatives. Additional amendments include rearranging the rule to align with HHSC advisory board rule-drafting guidelines and adding requirements found in Texas HSC.
COMMENTS
The 31-day comment period ended on December 2, 2024.
During this period, DSHS received a total of two comments regarding the proposed rule from two commenters. A summary of comments relating to the Radiation Advisory Board and DSHS's responses follows.
Comment: Two commenters requested that DSHS consider adding member positions. One commenter requests the addition of a radiation safety officer (RSO). One commenter requests the addition of radiobiology bioinformatics, artificial intelligence in medicine, medical informatics and big data, and non-ionizing radiation in medicine and industry.
Response: DSHS appreciates the comments and information provided by the commenters. Member positions are set by Texas HSC §401.015(a). DSHS respectfully declines to revise the rule in response to these comments.
STATUTORY AUTHORITY
The amendment is authorized by Texas HSC Chapter 401 (the Texas Radiation Control Act), which provides for the DSHS radiation control rules and regulatory program to be compatible with federal standards and regulations; §401.051, which provides the required authority to adopt rules and guidelines relating to the control of sources of radiation; §401.064, which provides for the authority to adopt rules related to inspection of x-ray equipment; §401.101, which provides for DSHS registration of facilities possessing sources of radiation; Chapter 401, Subchapter J, which authorizes enforcement of the Act; and Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules for the operation and provision of health and human services by DSHS and the administration of Texas Health and Safety Code Chapter 1001.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 30, 2025.
TRD-202500348
Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: February 19, 2025
Proposal publication date: November 1, 2024
For further information, please call: (512) 834-6655