PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 40. STOCK MEDICATION IN SCHOOLS AND OTHER ENTITIES

SUBCHAPTER D. MAINTENANCE AND ADMINISTRATION OF [ASTHMA ] MEDICATION FOR RESPIRATORY DISTRESS

25 TAC §§40.41 - 40.49

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to 25 Texas Administrative Code (TAC) Chapter 40, Subchapter D, §§40.41 - 40.49, concerning Maintenance and Administration of Asthma Medication.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement 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.

TEC §38.208 requires the Executive Commissioner of the Health and Human Services Commission, in consultation with the commissioner of Texas Education Agency (TEA) and the Stock Epinephrine Advisory Committee (SEAC), to adopt rules regarding 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.

TEC §38.2091 requires schools to report information on the administration of medication for respiratory distress to the commissioner of DSHS.

SECTION-BY-SECTION SUMMARY

The proposed amendments replace references to "asthma medication" with "medication for respiratory distress" for consistency throughout the subchapter. This proposal renames Subchapter D, as Maintenance and Administration of Medication for Respiratory Distress.

The proposed amendment to §40.41 replaces wording, edits language for clarity, and adds an acronym for Texas Education Code.

The proposed amendment to §40.42 provides revised and new definitions, replaces an acronym with the spelled out reference, and renumbers the subsection.

The proposed amendment to §40.43 replaces wording and edits language for clarity.

The proposed amendment to §40.44 adds policy requirements for school personnel and volunteers authorized and trained to administer medications, the treatment of multiple students, medication inventory, referral process for student to primary healthcare provider, process for providing information to assist in selecting a primary healthcare provider for the student, and renumbers the subsection.

The proposed amendment to §40.45 replaces wording, edits language for clarity, adds an acronym for Texas Education Code, and adds policy requirements for storage of medication.

The proposed amendment to §40.46 replaces policy requirements for training nurses by expanding training to school personnel or school volunteers in the administration of unassigned medication for respiratory distress, replaces wording, edits for language clarity, adds policy requirements for hands-on training, and informing of the purpose and use of asthma action plans.

The proposed amendment to §40.47 replaces wording and edits for language clarity, replaces policy requirements of nurse administering the medication for respiratory distress to school personnel or school volunteer, replaces reporting to a school administrator with reporting to the school district, charter holder or governing body of a private school, replaces a spelled out reference to an acronym, and renumbers the subsection.

The proposed amendment to §40.48 replaces wording and edits for language clarity and replaces a spelled out reference to an acronym.

The proposed amendment to §40.49 replaces a spelled out reference to an acronym.

FISCAL NOTE

Christy Havel Burton, 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 create a new regulation;

(6) the proposed rules will expand existing regulations;

(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

Christy Havel Burton determined 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 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 authorized to administer respiratory distress medicine to a person reasonably believed to be experiencing respiratory distress.

Christy Havel Burton has determined that for the first five years the rules are in effect, there are no probable economic costs to persons required to comply with the rule. This is because schools are not required to adopt a policy on maintaining, administering, and disposing of medications for respiratory distress, and are not required to stock medication.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposal does not restrict or limit an owner's right to the owner's 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, or street address 701 West 51st Street, Austin, Texas 78751; or emailed 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 the 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 24R030" in the subject line.

STATUTORY AUTHORITY

The proposal is required to comply with TEC Chapter 38 Subchapter E. The proposed amendments are also authorized by Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHS to adopt rules 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 amendments implement TEC Chapter 38, Texas Government Code §531.0055, and Texas Health and Safety Code Chapter 1001.

§40.41Purpose.

The purpose of this subchapter is to establish minimum standards for administering, maintaining, and disposing of unassigned [asthma] medication for respiratory distress in school districts, open-enrollment charter schools, or [and] private schools [that] voluntarily adopting [adopt] unassigned [asthma] medication for respiratory distress policies. These standards are implemented under Texas Education Code (TEC) Chapter 38, Subchapter E.

§40.42Definitions.

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 TEC [Texas Education Code,] §38.201, or a person [who has been] delegated prescriptive authority by a physician under Texas Occupations Code Chapter 157.

(2) Campus--A geographic unit of a school district, open-enrollment charter school, or private school that:

(A) has an assigned administrator;

(B) has enrolled students who are counted for average daily attendance;

(C) has assigned instructional staff;

(D) provides instructional services to students;

(E) has one or more grades in the range from early childhood education through grade 12 or is ungraded; and

(F) is subject to Texas laws.

(3) Open-enrollment charter school--As defined in TEC §38.151.

(4) Private school--As defined in TEC §38.201.

(5) Regular school hours--At least 30 minutes before the first bell to 30 minutes after the last bell of the school day.

(6) School district--Independent school districts established under TEC Chapter 11, Subchapters A - F; and open-enrollment charter schools established under TEC Chapter 12, Subchapter D.

(7) [(3)] School nurse--Registered nurse, as defined in 19 Texas Administrative Code (TAC) §153.1022 (relating to Minimum Salary Schedule for Certain Professional Staff) [19 TAC §153.1022 (relating to Minimum Salary Schedule for Certain Professional Staff), authorized to administer asthma medication], or licensed vocational nurse working under supervision as described in Texas Occupations Code §301.353.

(8) School personnel--As defined in TEC §38.201.

(9) School-sponsored event--A school-sponsored or school-related activity occurring on or off school property.

(10) School volunteer--As defined in TEC §22.053.

(11) TEC--Texas Education Code.

(12) [(4)] Unassigned [asthma] medication for respiratory distress--Albuterol, levalbuterol, or another medication based on the best available medical evidence for the treatment of respiratory distress that is:

(A) [A fast acting bronchodilator] delivered by metered-dose [metered dose] inhaler (MDI) with a spacer (valved holding chamber) [single use spacer] or by a nebulizer as a rescue medication ;[,]

(B) prescribed by an authorized healthcare provider in the name of the school district, open-enrollment charter school, or private school;[,]

(C) issued with a non-patient-specific standing delegation order for the administration of a [an asthma] medication for respiratory distress;[,] and

(D) issued by an authorized healthcare provider.

§40.43Applicability.

The rules of this [This] subchapter apply [applies] to any school district, open-enrollment charter school, or private school [that] voluntarily choosing to adopt [adopts] and implement [implements ] a written policy regarding the maintenance, administration, and disposal of unassigned [asthma] medication for respiratory distress at [on] each campus.

§40.44Voluntary Unassigned [Asthma] 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 [asthma] medication for respiratory distress at each campus.

(1) If a written policy is adopted under this subchapter, the:

(A) unassigned [asthma] medication for respiratory distress policy must comply with TEC [Texas Education Code] §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; and

(C) 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 [that adopts] such a policy must allow for treatment of multiple students and secure or obtain at least: [the suggested minimum dosage of unassigned asthma medication.]

(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 [asthma] 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 [asthma] medication for respiratory distress policy, the policy must include:

[(1) a process to obtain written authorization from a parent or guardian of the student that the student has been diagnosed as having asthma and stating that the school nurse may administer unassigned asthma medication to the student;]

(1) [(2)] the [a] designated campus administrator to coordinate and manage policy implementation, which [that] includes:

(A) conducting [whether to conduct] a review at the campus to determine the need for additional doses;

(B) training [of] school personnel and school volunteers [nurses];

(C) acquiring or purchasing, maintaining, storing, and using unassigned [asthma] medication for respiratory distress, subject to available campus funding; and

(D) disposing of expired unassigned [asthma] medication for respiratory distress;

(2) [(3)] a list of trained and authorized school personnel and school volunteers available [school nurses who will be assigned] to administer unassigned [asthma] medication for respiratory distress;

(3) [(4)] the locations of unassigned [asthma] medication for respiratory distress in compliance with TEC §38.208;

(4) [(5)] the procedures for notifying a parent, prescribing authorized healthcare provider, and the student's primary healthcare provider when unassigned [asthma ] medication for respiratory distress is administered; [and]

(5) [(6)] 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; [any unassigned asthma medication that is used or close to expiration.]

(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 [asthma] medication for respiratory distress policy must be publicly available.

§40.45Prescription, Administration, and Disposal of Unassigned [Asthma] Medications for Respiratory Distress.

(a) Once a school district, open-enrollment charter school, or private school voluntarily adopts an unassigned [asthma] medication for respiratory distress policy, any [a] campus that implements an unassigned [asthma] medication for respiratory distress policy must stock unassigned [asthma] medication for respiratory distress, subject to available funding, as defined by §40.44 of this subchapter (relating to Voluntary Unassigned [Asthma] Medication for Respiratory Distress Policies).

(b) A campus must obtain a prescription from an authorized healthcare provider [each year] to stock, possess, and maintain [at least two doses of] unassigned [asthma] medication for respiratory distress at [on] each campus as described in TEC [Texas Education Code] §38.208 and any equipment necessary to administer the medication.

(1) The campus must renew this prescription or obtain a new prescription annually.

(2) In addition to the minimum number of doses as defined by §40.44 of this subchapter, the [The] number of additional doses may be determined by an individual campus review led by an authorized healthcare provider.

(c) An authorized healthcare provider prescribing [who prescribes] unassigned [asthma] medication for respiratory distress under subsection (b) of this section must provide the campus with a standing order for the administration of unassigned [asthma] medication for respiratory distress to a person experiencing respiratory distress. [who:]

[(1) is reasonably believed to be experiencing a symptom of asthma; and]

[(2) has provided written notification and permission as required by the unassigned asthma medication policy.]

(d) The unassigned [asthma] medication for respiratory distress must be stored in accordance with the manufacturer's guidelines and local policy of the school district, open-enrollment charter school, or private school. The location of medication for respiratory distress at each campus must be secure and easily accessible to authorized school personnel and school volunteers.

(e) Expired unassigned [asthma] medication for respiratory distress and other used or expired supplies must be disposed of in accordance with the manufacturer's guidelines and local policy of the school district, open-enrollment charter school, or private school.

§40.46Training.

(a) A school district, open-enrollment charter school, or private school that chooses to adopt a written unassigned [asthma ] medication for respiratory distress policy[, or a campus that is subject to this subchapter,] 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 [nurses about]:

(1) include information on the adopted unassigned [asthma] medication for respiratory distress policy;

(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; [and]

(4) provide information on the report required after administering [an] unassigned [asthma] medication for respiratory distress under §40.47 of this subchapter (relating to Report on Administering Unassigned [Asthma ] Medication for Respiratory Distress);[).]

(5) meet the requirements found in TEC §38.210;

(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 [nurses] trained and authorized to administer [the] unassigned [asthma] medication for respiratory distress at [on] the campus or at a school-sponsored event.

§40.47Report on Administering Unassigned [Asthma] Medication for Respiratory Distress.

(a) Records relating to implementing and administering the school district, open-enrollment charter school, or private school's unassigned [asthma] medication for respiratory distress policy must be retained per the campus record retention schedule.

(b) The report required under this subsection must comply with TEC §38.2091.

(c) [(b)] The campus must submit a report no later than the 10th business day after the date a school personnel or school volunteer administered [nurse administers asthma] medication for respiratory distress in accordance with the unassigned [asthma] medication for respiratory distress policy adopted under this subchapter. The report must be included in the student's permanent record, if applicable, and must be submitted to the individuals and entities identified in TEC §38.2091:

(1) the school district, the charter holder if the school is an open-enrollment charter school, or the governing body of the school if the school is a private school;

(2) the physician or other person [school administrator,] prescribing the medication for respiratory distress; [authorized healthcare provider, the student's primary healthcare provider,] and

(3) [to] the Department of State Health Services (DSHS) commissioner [Commissioner].

(d) [(c)] Notifications to the DSHS commissioner [Commissioner] must be submitted on the designated electronic form available on the DSHS [DSHS's] School Health Program website found at dshs.texas.gov.

§40.48Notice to Parents Regarding Unassigned [Asthma] Medication for Respiratory Distress Policies in Schools.

(a) If a school district, open-enrollment charter school, or private school implements an unassigned [asthma] medication for respiratory distress policy under this subchapter, the campus must [shall] provide written or electronic notice to a parent or guardian of each student in accordance with TEC [Texas Education Code] §38.212.

(b) If a school district, open-enrollment charter school, or private school changes or discontinues the unassigned [asthma] medication for respiratory distress policy under this subchapter, the campus must provide written or electronic notice detailing the change or discontinuation of the policy [must be provided] to a parent or guardian of each student within 15 calendar days after the change or discontinuation.

§40.49Immunity from Liability.

A person who in good faith takes, or fails to take, any action under this subchapter[,] or TEC [Texas Education Code] Chapter 38, Subchapter E[,] is immune from civil or criminal liability or disciplinary action resulting from that action or a failure to act in accordance with TEC [Texas Education Code] §38.215(a).

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 October 30, 2024.

TRD-202405176

Cynthia Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 413-9089