Texas 2009 - 81st Regular

Texas House Bill HB2718 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R2734 YDB-D
2	2	By: Howard of Travis H.B. No. 2718
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the certified nurse aide registry and the regulation of
8	8	certified nurse aides by the Texas Board of Nursing.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 301.002, Occupations Code, is amended by
11	11	adding Subdivision (6) to read as follows:
12	12	(6) "Certified nurse aide" means a person who holds a
13	13	certificate of registration issued under this chapter as a
14	14	certified nurse aide.
15	15	SECTION 2. Section 301.151, Occupations Code, is amended to
16	16	read as follows:
17	17	Sec. 301.151. GENERAL RULEMAKING AUTHORITY. The board may
18	18	adopt and enforce rules consistent with this chapter and necessary
19	19	to:
20	20	(1) perform its duties and conduct proceedings before
21	21	the board;
22	22	(2) regulate the practice of professional nursing and
23	23	vocational nursing and the practice of certified nurse aides;
24	24	(3) establish standards of professional conduct for
25	25	license and certificate holders under this chapter; [and]
26	26	(4) determine the scope of practice for certified
27	27	nurse aides; and
28	28	(5) determine whether an act constitutes the practice
29	29	of professional nursing or vocational nursing or the practice of
30	30	certified nurse aides.
31	31	SECTION 3. Section 301.157, Occupations Code, is amended by
32	32	adding Subsection (i) to read as follows:
33	33	(i) The board by rule shall:
34	34	(1) prescribe a program of study to qualify a person
35	35	for an initial certificate of registration as a certified nurse
36	36	aide; and
37	37	(2) approve training programs that meet the board's
38	38	requirements for the program of study.
39	39	SECTION 4. Subchapter D, Chapter 301, Occupations Code, is
40	40	amended by adding Section 301.1596 to read as follows:
41	41	Sec. 301.1596. CERTIFIED NURSE AIDE ADVISORY COMMITTEE.
42	42	(a) The board shall establish a certified nurse aide advisory
43	43	committee to advise the board on the regulation of certified nurse
44	44	aides.
45	45	(b) The advisory committee consists of at least 13 members
46	46	appointed by the executive director as follows:
47	47	(1) two nursing home representatives;
48	48	(2) two representatives from community colleges with
49	49	certified nurse aide training programs in this state;
50	50	(3) one hospital representative;
51	51	(4) one home health industry representative;
52	52	(5) three certified nurse aides, two with not more
53	53	than five years' experience as certified nurse aides and one with at
54	54	least five years' experience as a certified nurse aide;
55	55	(6) two representatives of certified nurse aide
56	56	training programs that are not conducted by a facility described by
57	57	Section 250.001, Health and Safety Code, or a community college;
58	58	(7) one registered nurse with at least two years'
59	59	experience in training certified nurse aides; and
60	60	(8) one licensed vocational nurse with at least two
61	61	years' experience in working directly with certified nurse aides.
62	62	(c) The nurse aide advisory committee shall study and
63	63	provide recommendations to the board in the manner required by the
64	64	commissioner on:
65	65	(1) improving communication between nurses and
66	66	certified nurse aides;
67	67	(2) clarifying the scope of practice of certified
68	68	nurse aides;
69	69	(3) clarifying the professional relationship between
70	70	nurses and certified nurse aides;
71	71	(4) improving the practice of certified nurse aides;
72	72	(5) improving the training for certified nurse aides
73	73	to more adequately meet the state health care system's acute and
74	74	long-term care demands;
75	75	(6) establishing the program of study and classroom
76	76	hours required for successful completion of a certified nurse aide
77	77	training program;
78	78	(7) listing the subjects to be included in the
79	79	training program curriculum to ensure the curriculum's continued
80	80	relevancy in health care, including consideration of curriculum
81	81	related to:
82	82	(A) successful strategies for dealing with
83	83	patients with dementia or other difficult patients;
84	84	(B) time management;
85	85	(C) task prioritizing;
86	86	(D) interpersonal communication skills;
87	87	(E) cultural sensitivity;
88	88	(F) teamwork training;
89	89	(G) pyschosocial skills; and
90	90	(H) the aging process; and
91	91	(8) establishing the examination requirements for
92	92	issuance of a certificate of registration as a certified nurse aide
93	93	and for inclusion on the nurse aide registry.
94	94	(d) A member of the advisory committee is entitled to
95	95	reimbursement for travel expenses incurred for service on the
96	96	advisory committee as provided by the General Appropriations Act. A
97	97	member may not receive any compensation for that service.
98	98	(e) The advisory committee shall meet regularly as
99	99	necessary at the call of the presiding officer of the advisory
100	100	committee or at the call of the executive director.
101	101	(f) The board shall provide administrative support for the
102	102	advisory committee.
103	103	(g) Chapter 2110, Government Code, does not apply to the
104	104	advisory committee established under this section.
105	105	SECTION 5. Subchapter D, Chapter 301, Occupations Code, is
106	106	amended by adding Section 301.168 to read as follows:
107	107	Sec. 301.168. INTERAGENCY CONTRACT. (a) The board shall
108	108	enter into an interagency contract with the Health and Human
109	109	Services Commission and the Department of Aging and Disability
110	110	Services under which the board shall administer and maintain the
111	111	nurse aide registry established under Chapter 250, Health and
112	112	Safety Code.
113	113	(b) The interagency contract must provide that:
114	114	(1) the Department of Aging and Disability Services
115	115	has oversight authority over the nurse aide registry established
116	116	under Chapter 250, Health and Safety Code;
117	117	(2) the department is the only state agency authorized
118	118	to place findings of abuse, neglect, or exploitation in the
119	119	registry as prescribed by federal law;
120	120	(3) the board shall administer and maintain the daily
121	121	operation of the registry and receive the necessary federal funding
122	122	from the department to reimburse the board for the duties performed
123	123	by the board; and
124	124	(4) the department is responsible for reimbursement
125	125	provided to nursing home providers for the cost of certified nurse
126	126	aide training at the provider's facilities.
127	127	SECTION 6. Chapter 301, Occupations Code, is amended by
128	128	adding Subchapter F-1 to read as follows:
129	129	SUBCHAPTER F-1. NURSE AIDES: REGISTRATION AND REGISTRATION
130	130	RENEWAL REQUIREMENTS
131	131	Sec. 301.281. CERTIFICATE OF REGISTRATION REQUIRED. (a) A
132	132	person may not engage in practice as a certified nurse aide or hold
133	133	out to the public that the person is a certified nurse aide or is
134	134	included on the nurse aide registry under Chapter 250, Health and
135	135	Safety Code, unless the person holds a certificate of registration
136	136	as a certified nurse aide under this chapter and is included on the
137	137	nurse aide registry under Chapter 250.
138	138	(b) The board, in consultation with the nurse aide advisory
139	139	committee established under Section 301.1596, by rule shall:
140	140	(1) define the scope of practice of a certified nurse
141	141	aide; and
142	142	(2) establish the qualifications for holding a
143	143	certificate of registration as a certified nurse aide and for
144	144	inclusion on the nurse aide registry.
145	145	(c) The qualifications established by the board must
146	146	require a person applying to hold a certificate of registration as a
147	147	certified nurse aide and to be included on the nurse aide registry
148	148	to successfully complete:
149	149	(1) a board-approved training program that consists of
150	150	not less than 120 hours and not more than 359 hours of course work as
151	151	specified by board rule; and
152	152	(2) a competency examination on completion of the
153	153	training program.
154	154	Sec. 301.282. APPLICATION. Each person applying for a
155	155	certified nurse aide certificate of registration and for inclusion
156	156	on the nurse aide registry must submit to the board a sworn
157	157	application that demonstrates the applicant's qualifications under
158	158	this chapter, accompanied by evidence that the applicant:
159	159	(1) has good professional character;
160	160	(2) has successfully completed a training program
161	161	approved by the board; and
162	162	(3) has passed the examination approved by the board.
163	163	Sec. 301.283. ISSUANCE AND INCLUSION; FEE. (a) The board
164	164	shall issue a certificate of registration as a certified nurse aide
165	165	to each qualified person who applies to the board on the form
166	166	prescribed by the board and include the person on the nurse aide
167	167	registry.
168	168	(b) The board may charge a fee for the issuance of a copy of
169	169	a certificate of registration.
170	170	Sec. 301.284. TERM. (a) A certificate of registration as a
171	171	certified nurse aide issued under this subchapter is valid for two
172	172	years. The board shall include the expiration date on each
173	173	certificate of registration issued under this subchapter.
174	174	(b) Inclusion on the nurse aide registry is valid until
175	175	expiration of the certificate of registration.
176	176	Sec. 301.285. RENEWAL. (a) A person may renew the person's
177	177	certificate of registration as a certified nurse aide and renew
178	178	inclusion on the nurse aide registry by:
179	179	(1) submitting a renewal application to the board on
180	180	the form prescribed by the board before the registration expires;
181	181	(2) providing proof that the person has successfully
182	182	completed during the preceding two years the continuing education
183	183	hours required by Subsection (b); and
184	184	(3) complying with any other renewal requirements
185	185	adopted by the board.
186	186	(b) A person who is registered as a certified nurse aide and
187	187	who is included on the nurse aide registry shall annually in
188	188	accordance with board rules complete at least 12 hours of
189	189	continuing education.
190	190	(c) At least 30 days before the expiration of the person's
191	191	certificate of registration, the board shall send written notice of
192	192	the impending certificate expiration to the person at the person's
193	193	last known address according to the records of the board.
194	194	SECTION 7. Section 301.407(b), Occupations Code, is amended
195	195	to read as follows:
196	196	(b) Unless expressly prohibited by state or federal law, a
197	197	state agency that has reason to believe that a nurse or nurse aide
198	198	has engaged in conduct subject to reporting shall report the nurse
199	199	or nurse aide in writing to the board or to a nursing peer review
200	200	committee under Chapter 303.
201	201	SECTION 8. Section 301.451, Occupations Code, is amended to
202	202	read as follows:
203	203	Sec. 301.451. CERTAIN PROHIBITED PRACTICES. A person may
204	204	not:
205	205	(1) sell, fraudulently obtain, or fraudulently
206	206	furnish a nursing diploma, license, certificate, renewal license or
207	207	certificate, or record;
208	208	(2) assist another person in selling, fraudulently
209	209	obtaining, or fraudulently furnishing a nursing diploma, license,
210	210	certificate, renewal license or certificate, or record;
211	211	(3) practice nursing or practice as a nurse aide under
212	212	a diploma, license, certificate, or record that was:
213	213	(A) obtained unlawfully or fraudulently; or
214	214	(B) signed or issued unlawfully or under false
215	215	representation; or
216	216	(4) practice nursing or practice as a nurse aide in a
217	217	period in which the person's license or certificate is suspended or
218	218	revoked.
219	219	SECTION 9. Section 301.452(b), Occupations Code, is amended
220	220	to read as follows:
221	221	(b) A person is subject to denial of a license or
222	222	certificate or to disciplinary action under this subchapter for:
223	223	(1) a violation of this chapter, a rule or regulation
224	224	not inconsistent with this chapter, or an order issued under this
225	225	chapter;
226	226	(2) fraud or deceit in procuring or attempting to
227	227	procure a license to practice professional nursing or vocational
228	228	nursing or a nurse aide certificate;
229	229	(3) a conviction for, or placement on deferred
230	230	adjudication community supervision or deferred disposition for, a
231	231	felony or for a misdemeanor involving moral turpitude;
232	232	(4) conduct that results in the revocation of
233	233	probation imposed because of conviction for a felony or for a
234	234	misdemeanor involving moral turpitude;
235	235	(5) use of a nursing license, diploma, or permit, a
236	236	nurse aide certificate, or the transcript of such a document, that
237	237	has been fraudulently purchased, issued, counterfeited, or
238	238	materially altered;
239	239	(6) impersonating or acting as a proxy for another
240	240	person in the licensing examination required under Section 301.253
241	241	or 301.255;
242	242	(7) directly or indirectly aiding or abetting an
243	243	unlicensed or uncertified person in connection with the
244	244	unauthorized practice of nursing or unauthorized practice as a
245	245	nurse aide;
246	246	(8) revocation, suspension, or denial of, or any other
247	247	action relating to, the person's license, certificate, or privilege
248	248	to practice nursing or to practice as a nurse aide in another
249	249	jurisdiction;
250	250	(9) intemperate use of alcohol or drugs that the board
251	251	determines endangers or could endanger a patient;
252	252	(10) unprofessional or dishonorable conduct that, in
253	253	the board's opinion, is likely to deceive, defraud, or injure a
254	254	patient or the public;
255	255	(11) adjudication of mental incompetency;
256	256	(12) lack of fitness to practice because of a mental or
257	257	physical health condition that could result in injury to a patient
258	258	or the public; or
259	259	(13) failure to care adequately for a patient or to
260	260	conform to the minimum standards of acceptable nursing practice in
261	261	a manner that, in the board's opinion, exposes a patient or other
262	262	person unnecessarily to risk of harm.
263	263	SECTION 10. Section 301.453, Occupations Code, is amended
264	264	to read as follows:
265	265	Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
266	266	DISCIPLINE. (a) If the board determines that a person has
267	267	committed an act listed in Section 301.452(b), the board shall
268	268	enter an order imposing one or more of the following:
269	269	(1) denial of the person's application for a license or
270	270	certificate, license or certificate renewal, or temporary permit;
271	271	(2) issuance of a written warning;
272	272	(3) administration of a public reprimand;
273	273	(4) limitation or restriction of the person's license
274	274	or certificate, including:
275	275	(A) limiting to or excluding from the person's
276	276	practice one or more specified activities of nursing or as a nurse
277	277	aide; or
278	278	(B) stipulating periodic board review;
279	279	(5) suspension of the person's license or certificate
280	280	for a period not to exceed five years;
281	281	(6) revocation of the person's license or certificate;
282	282	or
283	283	(7) assessment of a fine.
284	284	(b) In addition to or instead of an action under Subsection
285	285	(a), the board, by order, may require the person to:
286	286	(1) submit to care, counseling, or treatment by a
287	287	health provider designated by the board as a condition for the
288	288	issuance or renewal of a license or certificate;
289	289	(2) participate in a program of education or
290	290	counseling prescribed by the board;
291	291	(3) practice for a specified period under the
292	292	direction of a registered nurse or vocational nurse designated by
293	293	the board; or
294	294	(4) perform public service the board considers
295	295	appropriate.
296	296	(c) The board may probate any penalty imposed on a nurse or
297	297	nurse aide and may accept the voluntary surrender of a license or
298	298	certificate. The board may not reinstate a surrendered license or
299	299	certificate unless it determines that the person is competent to
300	300	resume practice.
301	301	(d) If the board suspends, revokes, or accepts surrender of
302	302	a license or certificate, the board may impose conditions for
303	303	reinstatement that the person must satisfy before the board may
304	304	issue an unrestricted license or certificate.
305	305	SECTION 11. Section 301.4531(c), Occupations Code, is
306	306	amended to read as follows:
307	307	(c) In the case of a person described by:
308	308	(1) Subsection (b)(1)(A), the board shall consider
309	309	taking a more severe disciplinary action, including revocation of
310	310	the person's license or certificate, than the disciplinary action
311	311	that would be taken for a single violation; and
312	312	(2) Subsection (b)(1)(B), the board shall consider
313	313	taking a more severe disciplinary action, including revocation of
314	314	the person's license or certificate, than the disciplinary action
315	315	that would be taken for a person who has not previously been the
316	316	subject of disciplinary action by the board.
317	317	SECTION 12. Section 301.4535, Occupations Code, is amended
318	318	to read as follows:
319	319	Sec. 301.4535. REQUIRED SUSPENSION, REVOCATION, OR REFUSAL
320	320	OF LICENSE OR CERTIFICATE FOR CERTAIN OFFENSES. (a) The board
321	321	shall suspend a nurse's license or a nurse aide's certificate or
322	322	refuse to issue a license or certificate to an applicant on proof
323	323	that the nurse, nurse aide, or applicant has been initially
324	324	convicted of:
325	325	(1) murder under Section 19.02, Penal Code, capital
326	326	murder under Section 19.03, Penal Code, or manslaughter under
327	327	Section 19.04, Penal Code;
328	328	(2) kidnapping or unlawful restraint under Chapter 20,
329	329	Penal Code, and the offense was punished as a felony or state jail
330	330	felony;
331	331	(3) sexual assault under Section 22.011, Penal Code;
332	332	(4) aggravated sexual assault under Section 22.021,
333	333	Penal Code;
334	334	(5) continuous sexual abuse of young child or children
335	335	under Section 21.02, Penal Code, or indecency with a child under
336	336	Section 21.11, Penal Code;
337	337	(6) aggravated assault under Section 22.02, Penal
338	338	Code;
339	339	(7) intentionally, knowingly, or recklessly injuring
340	340	a child, elderly individual, or disabled individual under Section
341	341	22.04, Penal Code;
342	342	(8) intentionally, knowingly, or recklessly
343	343	abandoning or endangering a child under Section 22.041, Penal Code;
344	344	(9) aiding suicide under Section 22.08, Penal Code,
345	345	and the offense was punished as a state jail felony;
346	346	(10) an offense under Section 25.07, Penal Code,
347	347	punished as a felony;
348	348	(11) an offense under Section 25.071, Penal Code,
349	349	punished as a felony;
350	350	(12) an agreement to abduct a child from custody under
351	351	Section 25.031, Penal Code;
352	352	(13) the sale or purchase of a child under Section
353	353	25.08, Penal Code;
354	354	(14) robbery under Section 29.02, Penal Code;
355	355	(15) aggravated robbery under Section 29.03, Penal
356	356	Code;
357	357	(16) an offense for which a defendant is required to
358	358	register as a sex offender under Chapter 62, Code of Criminal
359	359	Procedure; or
360	360	(17) an offense under the law of another state,
361	361	federal law, or the Uniform Code of Military Justice that contains
362	362	elements that are substantially similar to the elements of an
363	363	offense listed in this subsection.
364	364	(b) On final conviction or a plea of guilty or nolo
365	365	contendere for an offense listed in Subsection (a), the board, as
366	366	appropriate, may not issue a license or certificate to an
367	367	applicant, shall refuse to renew a license or certificate, or shall
368	368	revoke a license or certificate if the applicant or license or
369	369	certificate holder did not previously disclose the conviction or
370	370	plea and the fifth anniversary of the date the person successfully
371	371	completed community supervision or parole has not occurred.
372	372	(c) A person is not eligible for an initial license or
373	373	certificate or for reinstatement or endorsement of a license to
374	374	practice nursing or a certificate as a nurse aide in this state
375	375	before the fifth anniversary of the date the person successfully
376	376	completed and was dismissed from community supervision or parole
377	377	for an offense described by Subsection (a).
378	378	SECTION 13. Sections 301.454(a), (c), and (e), Occupations
379	379	Code, are amended to read as follows:
380	380	(a) Except in the case of a temporary suspension authorized
381	381	under Section 301.455 or an action taken in accordance with an
382	382	agreement between the board and a license or certificate holder,
383	383	the board may not initiate a disciplinary action relating to a
384	384	license or certificate unless:
385	385	(1) the board has served notice to the license or
386	386	certificate holder of the facts or conduct alleged to warrant the
387	387	intended action; and
388	388	(2) the license or certificate holder has been given
389	389	an opportunity, in writing or through an informal meeting, to show
390	390	compliance with all requirements of law for the retention of the
391	391	license or certificate.
392	392	(c) A person is entitled to a hearing conducted by the State
393	393	Office of Administrative Hearings if the board proposes to:
394	394	(1) refuse to admit the person to examination;
395	395	(2) refuse to issue a license, certificate, or
396	396	temporary permit;
397	397	(3) refuse to renew a license or certificate; or
398	398	(4) suspend or revoke the person's license,
399	399	certificate, or permit.
400	400	(e) Notwithstanding Subsection (a), a person is not
401	401	entitled to a hearing on a refusal to renew a license or certificate
402	402	if the person:
403	403	(1) fails to submit a renewal application; or
404	404	(2) submits an application that:
405	405	(A) is incomplete;
406	406	(B) shows on its face that the person does not
407	407	meet the renewal requirements; or
408	408	(C) is not accompanied by the correct fee.
409	409	SECTION 14. The heading of Section 301.455, Occupations
410	410	Code, is amended to read as follows:
411	411	Sec. 301.455. TEMPORARY LICENSE OR CERTIFICATE SUSPENSION
412	412	OR RESTRICTION.
413	413	SECTION 15. Sections 301.455(a) and (b), Occupations Code,
414	414	are amended to read as follows:
415	415	(a) The license of a nurse or the certificate of a nurse aide
416	416	shall be temporarily suspended or restricted on a determination by
417	417	a majority of the board or a three-member committee of board members
418	418	designated by the board that, from the evidence or information
419	419	presented, the continued practice of the nurse or nurse aide would
420	420	constitute a continuing and imminent threat to the public welfare.
421	421	(b) A license or certificate may be temporarily suspended or
422	422	restricted under this section without notice or hearing on the
423	423	complaint if:
424	424	(1) institution of proceedings for a hearing before
425	425	the State Office of Administrative Hearings is initiated
426	426	simultaneously with the temporary suspension or determination to
427	427	restrict; and
428	428	(2) a hearing is held as soon as possible under this
429	429	chapter and Chapter 2001, Government Code.
430	430	SECTION 16. The heading of Section 301.457, Occupations
431	431	Code, is amended to read as follows:
432	432	Sec. 301.457. COMPLAINT AND INVESTIGATION RELATED TO
433	433	NURSES.
434	434	SECTION 17. Subchapter J, Chapter 301, Occupations Code, is
435	435	amended by adding Section 301.4571 to read as follows:
436	436	Sec. 301.4571. COMPLAINT AND INVESTIGATION RELATED TO NURSE
437	437	AIDES. (a) The board or any person may initiate a proceeding under
438	438	this subchapter by filing with the board a complaint against a nurse
439	439	aide. The complaint must be in writing and signed by the
440	440	complainant.
441	441	(b) Except as otherwise provided by this section, the board
442	442	or a person authorized by the board shall conduct each
443	443	investigation. Each complaint against a nurse aide that requires a
444	444	determination of competency shall be reviewed by a board member,
445	445	consultant, or employee with a nursing background the board
446	446	considers sufficient.
447	447	(c) On the filing of a complaint, the board:
448	448	(1) may conduct a preliminary investigation into the
449	449	identity of the nurse aide named or described in the complaint;
450	450	(2) shall make a timely and appropriate preliminary
451	451	investigation of the complaint; and
452	452	(3) may issue a warning or reprimand to the nurse aide.
453	453	(d) After any preliminary investigation to determine the
454	454	identity of the subject of the complaint, unless it would
455	455	jeopardize an investigation, the board shall notify the nurse aide
456	456	that a complaint has been filed and the nature of the complaint. If
457	457	the investigation reveals probable cause to take further
458	458	disciplinary action, the board shall either attempt an informal
459	459	disposition of the complaint or file a formal charge against the
460	460	nurse aide stating the provision of this chapter or board rule that
461	461	is alleged to have been violated and a brief description of each act
462	462	or omission that constitutes the violation.
463	463	(e) The board shall conduct an investigation of the
464	464	complaint to determine:
465	465	(1) whether the nurse aide's continued practice poses
466	466	a risk of harm to clients or other persons; and
467	467	(2) whether probable cause exists that a nurse aide
468	468	committed an act listed in Section 301.452(b) or that violates
469	469	other law.
470	470	(f) In making a determination under Subsection (e), the
471	471	board shall review the evidence to determine the extent to which a
472	472	deficiency in care by the nurse aide was the result of deficiencies
473	473	in the nurse aide's judgment, knowledge, training, or skill rather
474	474	than other factors beyond the nurse aide's control. A determination
475	475	that a deficiency in care is attributable to a nurse aide must be
476	476	based on the extent to which the nurse aide's conduct was the result
477	477	of a deficiency in the nurse aide's judgment, knowledge, training,
478	478	or skill.
479	479	(g) If the board determines after investigating a complaint
480	480	under Subsection (e) that there is reason to believe that a nurse
481	481	aide's deficiency in care was the result of a factor beyond the
482	482	nurse aide's control, the board shall report that determination to
483	483	the patient safety committee at the facility where the nurse aide's
484	484	deficiency in care occurred or, if the facility does not have a
485	485	patient safety committee, to the chief nursing officer.
486	486	(h) The board and the Department of Aging and Disability
487	487	Services shall share investigation information, including files,
488	488	reports, witness lists, findings, and any other pertinent
489	489	information, related to the investigation of a nurse aide by the
490	490	board or department.
491	491	SECTION 18. Sections 301.458(a) and (c), Occupations Code,
492	492	are amended to read as follows:
493	493	(a) Unless there is an agreed disposition of the complaint
494	494	under Section 301.463, and if probable cause is found under Section
495	495	301.457(e)(2) or Section 301.4571(e)(2), the board or the board's
496	496	authorized representative shall initiate proceedings by filing
497	497	formal charges against the nurse or nurse aide.
498	498	(c) A copy of the formal charge shall be served on the nurse
499	499	or nurse aide, or on the nurse's or nurse aide's counsel of record.
500	500	SECTION 19. Section 301.459(b), Occupations Code, is
501	501	amended to read as follows:
502	502	(b) In any hearing under this section, a nurse or nurse aide
503	503	is entitled to appear in person or by counsel.
504	504	SECTION 20. Section 301.460(a), Occupations Code, is
505	505	amended to read as follows:
506	506	(a) Except for good cause shown for delay and subject to any
507	507	other privilege or restriction set forth by statute, rule, or legal
508	508	precedent, the board shall, not later than the 30th day after the
509	509	date the board receives a written request from a license or
510	510	certificate holder who is the subject of a formal charge filed under
511	511	Section 301.458 or from the license or certificate holder's counsel
512	512	of record, provide the license or certificate holder with access
513	513	to:
514	514	(1) all known exculpatory information in the board's
515	515	possession; and
516	516	(2) information in the board's possession that the
517	517	board intends to offer into evidence in presenting its case in chief
518	518	at the contested hearing on the complaint.
519	519	SECTION 21. Section 301.462, Occupations Code, is amended
520	520	to read as follows:
521	521	Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE OR
522	522	CERTIFICATE. (a) The board may revoke a nurse's license without
523	523	formal charges, notice, or opportunity of hearing if the nurse
524	524	voluntarily surrenders the nurse's license to the board and
525	525	executes a sworn statement that the nurse does not desire to be
526	526	licensed.
527	527	(b) The board may revoke a nurse aide's certificate without
528	528	formal charges, notice, or opportunity of hearing if the nurse aide
529	529	voluntarily surrenders the nurse aide's certificate to the board
530	530	and executes a sworn statement that the nurse aide does not desire
531	531	to be certified.
532	532	SECTION 22. Section 301.464(b), Occupations Code, is
533	533	amended to read as follows:
534	534	(b) Rules adopted under this section must:
535	535	(1) provide the complainant and the license or
536	536	certificate holder an opportunity to be heard; and
537	537	(2) require the presence of a representative of the
538	538	board's legal staff or of the attorney general to advise the board
539	539	or the board's employees.
540	540	SECTION 23. Section 301.466, Occupations Code, is amended
541	541	to read as follows:
542	542	Sec. 301.466. CONFIDENTIALITY. (a) A complaint and
543	543	investigation concerning a nurse or nurse aide under this
544	544	subchapter and all information and material compiled by the board
545	545	in connection with the complaint and investigation are:
546	546	(1) confidential and not subject to disclosure under
547	547	Chapter 552, Government Code; and
548	548	(2) not subject to disclosure, discovery, subpoena, or
549	549	other means of legal compulsion for release to anyone other than the
550	550	board or a board employee or agent involved in license or
551	551	certificate holder discipline.
552	552	(b) Notwithstanding Subsection (a), information regarding a
553	553	complaint and an investigation may be disclosed to:
554	554	(1) a person involved with the board in a disciplinary
555	555	action against the nurse or nurse aide;
556	556	(2) a nursing licensing, certifying, or disciplinary
557	557	board in another jurisdiction;
558	558	(3) a peer assistance program approved by the board
559	559	under Chapter 467, Health and Safety Code;
560	560	(4) a law enforcement agency; or
561	561	(5) a person engaged in bona fide research, if all
562	562	information identifying a specific individual has been deleted.
563	563	(c) The filing of formal charges against a nurse or nurse
564	564	aide by the board, the nature of those charges, disciplinary
565	565	proceedings of the board, and final disciplinary actions, including
566	566	warnings and reprimands, by the board are not confidential and are
567	567	subject to disclosure in accordance with Chapter 552, Government
568	568	Code.
569	569	SECTION 24. Sections 301.467(a) and (b), Occupations Code,
570	570	are amended to read as follows:
571	571	(a) On application, the board may reinstate:
572	572	(1) a license to practice professional nursing or
573	573	vocational nursing to a person whose license has been revoked,
574	574	suspended, or surrendered; or
575	575	(2) a certificate of a nurse aide to a person whose
576	576	certificate has been revoked, suspended, or surrendered.
577	577	(b) An application to reinstate a revoked license or
578	578	certificate:
579	579	(1) may not be made before the first anniversary of the
580	580	date of the revocation; and
581	581	(2) must be made in the manner and form the board
582	582	requires.
583	583	SECTION 25. Section 301.468, Occupations Code, is amended
584	584	by amending Subsections (a) and (c) and adding Subsections (a-1)
585	585	and (a-2) to read as follows:
586	586	(a) The board may determine that an order denying a license
587	587	or certificate application or suspending a license or certificate
588	588	be probated.
589	589	(a-1) A person subject to a probation order under Subsection
590	590	(a) related to a license shall conform to each condition the board
591	591	sets as the terms of probation, including a condition:
592	592	(1) limiting the practice of the person to, or
593	593	excluding, one or more specified activities of professional nursing
594	594	or vocational nursing; or
595	595	(2) requiring the person to submit to supervision,
596	596	care, counseling, or treatment by a practitioner designated by the
597	597	board.
598	598	(a-2) A person subject to a probation order under Subsection
599	599	(a) related to a certificate shall conform to each condition the
600	600	board sets as the terms of probation, including a condition:
601	601	(1) limiting the practice of the person to, or
602	602	excluding, one or more specified activities performed by nurse
603	603	aides; or
604	604	(2) requiring the person to submit to supervision,
605	605	care, counseling, or treatment by a practitioner designated by the
606	606	board.
607	607	(c) At any time while the person remains subject to the
608	608	probation order, the board may hold a hearing and rescind the
609	609	probation and enforce the board's original action in denying or
610	610	suspending the license or certificate. The hearing shall be called
611	611	by the presiding officer of the board, who shall issue a notice to
612	612	be served on the person or the person's counsel not later than the
613	613	20th day before the date scheduled for the hearing that:
614	614	(1) sets the time and place for the hearing; and
615	615	(2) contains the charges or complaints against the
616	616	probationer.
617	617	SECTION 26. Section 301.469, Occupations Code, is amended
618	618	to read as follows:
619	619	Sec. 301.469. NOTICE OF FINAL ACTION. If the board takes a
620	620	final disciplinary action, including a warning or reprimand,
621	621	against a nurse or nurse aide under this subchapter, the board shall
622	622	immediately send a copy of the board's final order to the nurse or
623	623	nurse aide and to the last known employer of the nurse or nurse
624	624	aide.
625	625	SECTION 27. Section 301.470, Occupations Code, is amended
626	626	to read as follows:
627	627	Sec. 301.470. REFUND. (a) Subject to Subsection (b), the
628	628	board may order a license or certificate holder to pay a refund to a
629	629	consumer as provided in an agreement resulting from an informal
630	630	settlement conference instead of or in addition to imposing an
631	631	administrative penalty under this chapter.
632	632	(b) The amount of a refund ordered as provided in an
633	633	agreement resulting from an informal settlement conference may not
634	634	exceed the amount the consumer paid to a nurse or nurse aide for a
635	635	service regulated by this chapter or the actual amount stolen or
636	636	defrauded from a patient by the nurse or nurse aide. The board may
637	637	not require payment of other damages or estimate harm in a refund
638	638	order.
639	639	SECTION 28. Section 301.471, Occupations Code, is amended
640	640	by adding Subsection (a-1) and amending Subsection (b) to read as
641	641	follows:
642	642	(a-1) If it appears to the board that a person who is not
643	643	certified as a nurse aide under this chapter is violating this
644	644	chapter, a rule adopted under this chapter, or another state
645	645	statute or rule relating to the practice of a nurse aide and the
646	646	board determines that the unauthorized activity constitutes a
647	647	clear, imminent, or continuing threat to the public health and
648	648	safety, the board may:
649	649	(1) issue an emergency cease and desist order
650	650	prohibiting the person from engaging in the activity; and
651	651	(2) report the activity to a local law enforcement
652	652	agency or the attorney general for prosecution.
653	653	(b) An order issued under Subsection (a) or (a-1) must:
654	654	(1) be delivered on issuance to the person affected by
655	655	the order by personal delivery or registered or certified mail,
656	656	return receipt requested, to the person's last known address;
657	657	(2) state the acts or practices alleged to be an
658	658	unauthorized activity and require the person immediately to cease
659	659	and desist from the unauthorized activity; and
660	660	(3) contain a notice that a request for hearing may be
661	661	filed under this section.
662	662	SECTION 29. Section 301.552, Occupations Code, is amended
663	663	to read as follows:
664	664	Sec. 301.552. MONITORING OF LICENSE OR CERTIFICATE HOLDER.
665	665	The board by rule shall develop a system for monitoring the
666	666	compliance of license and certificate holders with the requirements
667	667	of this chapter. Rules adopted under this section must include
668	668	procedures to:
669	669	(1) monitor for compliance a license or certificate
670	670	holder who is ordered by the board to perform certain acts; and
671	671	(2) identify and monitor each license or certificate
672	672	holder who represents a risk to the public.
673	673	SECTION 30. Section 250.001, Health and Safety Code, is
674	674	amended by amending Subdivisions (1) and (3) and adding Subdivision
675	675	(6) to read as follows:
676	676	(1) "Nurse aide registry" means a list of certified
677	677	nurse aides maintained and administered by the Texas Board of
678	678	Nursing as provided by Chapter 301, Occupations Code, under the
679	679	oversight of the [Texas] Department of Aging and Disability [Human]
680	680	Services and maintained in compliance with [of nurse aides under]
681	681	the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
682	682	100-203).
683	683	(3) "Facility" means:
684	684	(A) a nursing home, custodial care home, or other
685	685	institution licensed by the department [Texas Department of Human
686	686	Services] under Chapter 242;
687	687	(B) an assisted living facility licensed by the
688	688	department [Texas Department of Human Services] under Chapter 247;
689	689	(C) a home and community support services agency
690	690	licensed under Chapter 142;
691	691	(D) an adult day care facility licensed by the
692	692	department [Texas Department of Human Services] under Chapter 103,
693	693	Human Resources Code;
694	694	(E) a facility for persons with mental
695	695	retardation licensed under Chapter 252;
696	696	(F) an adult foster care provider that contracts
697	697	with the department [Texas Department of Human Services];
698	698	(G) a facility that provides mental health
699	699	services and that is operated by or contracts with the [Texas]
700	700	Department of State [Mental] Health Services [and Mental
701	701	Retardation];
702	702	(H) a local mental health or mental retardation
703	703	authority designated under Section 533.035; or
704	704	(I) a person exempt from licensing under Section
705	705	142.003(a)(19).
706	706	(6) "Department" means the Department of Aging and
707	707	Disability Services.
708	708	SECTION 31. Chapter 250, Health and Safety Code, is amended
709	709	by adding Section 250.0011 to read as follows:
710	710	Sec. 250.0011. NURSE AIDE REGISTRY. (a) The department
711	711	shall establish a registry of certified nurse aides.
712	712	(b) The department shall oversee the nurse aide registry
713	713	administered and maintained by the Texas Board of Nursing under
714	714	Chapter 301, Occupations Code, and under the interagency contract
715	715	between the department, the Health and Human Services Commission,
716	716	and the board.
717	717	(c) The department shall place any finding of abuse,
718	718	neglect, or exploitation by a certified nurse aide in the registry
719	719	and in the employee misconduct registry maintained under Chapter
720	720	253.
721	721	SECTION 32. (a) Not later than October 1, 2009, the
722	722	executive director of the Texas Board of Nursing shall appoint the
723	723	members to the nurse aide advisory committee established by Section
724	724	301.1596, Occupations Code, as added by this Act.
725	725	(b) Not later than January 1, 2010, the Texas Board of
726	726	Nursing, the Health and Human Services Commission, and the
727	727	Department of Aging and Disability Services shall enter an
728	728	interagency contract as required by Section 301.168, Occupations
729	729	Code, as added by this Act.
730	730	(c) Not later than May 1, 2010, the Texas Board of Nursing
731	731	shall:
732	732	(1) establish the qualifications for issuance of a
733	733	certificate of registration and renewal of registration as a
734	734	certified nurse aide; and
735	735	(2) adopt the rules necessary to implement the changes
736	736	in law made by this Act.
737	737	(d) Not later than May 1, 2010, the executive commissioner
738	738	of the Health and Human Services Commission shall adopt the rules
739	739	necessary to implement the changes in law made by this Act.
740	740	SECTION 33. (a) A person listed as a certified nurse aide
741	741	on the nurse aide registry under Chapter 250, Health and Safety
742	742	Code, on the effective date of this Act is entitled to renew a
743	743	certificate of registration as a certified nurse aide and renew
744	744	inclusion on the nurse aide registry without fulfilling any
745	745	additional educational training or examination requirements
746	746	established by the Texas Board of Nursing under Chapter 301,
747	747	Occupations Code, as amended by this Act, if the person has the
748	748	other qualifications required by the board and Chapter 301 and if,
749	749	before August 31, 2010, the person submits a renewal application as
750	750	required by Chapter 301.
751	751	(b) Chapter 301, Occupations Code, as amended by this Act,
752	752	applies only to the issuance of a certificate of registration or
753	753	renewal of certificate of registration as a certified nurse aide
754	754	and the inclusion or renewal of inclusion on the nurse aide registry
755	755	under Chapter 250, Health and Safety Code, as amended by this Act,
756	756	on or after September 1, 2010.
757	757	(c) Except as provided by Subsection (d), an application for
758	758	issuance of a certificate of registration or renewal of certificate
759	759	of registration as a certified nurse aide under Chapter 301,
760	760	Occupations Code, as amended by this Act, and the inclusion or
761	761	renewal of inclusion on the nurse aide registry under Chapter 250,
762	762	Health and Safety Code, as amended by this Act, before the effective
763	763	date of this Act is covered by the law in effect immediately before
764	764	that date, and that law is continued in effect for that purpose.
765	765	(d) The Department of Aging and Disability Services shall
766	766	include the expiration date, as required by Chapter 301,
767	767	Occupations Code, as amended by this Act, on each certified nurse
768	768	aide certificate of registration issued or renewed by the
769	769	department on or after the effective date of this Act. A certified
770	770	nurse aide certificate of registration issued by the department
771	771	before the effective date of this Act expires on the earlier of the
772	772	second anniversary of the date of issuance of the certificate or
773	773	August 31, 2011.
774	774	SECTION 34. This Act takes effect September 1, 2009.