By: McReynolds H.B. No. 3961
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of nursing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 301.160(a)(2), Occupations Code, is
amended to read as follows:
(2) "Targeted continuing nursing education" means
continuing education focusing on a skill that would likely benefit
a significant proportion of [registered] nurses in a particular
practice area.
SECTION 2. Sections 301.160(b) and (j) are amended to read
as follows:
(b) The board may develop pilot programs to evaluate the
effectiveness of mechanisms, including proactive nursing peer
review and targeted continuing nursing education, for maintenance
of the clinical competency of a [registered] nurse in the nurse's
area of practice and the understanding by [registered] nurses of
the laws, including regulations, governing the practice of
[professional] nursing.
(j) The board shall issue an annual report regarding any
pilot programs developed or approved and a status report on those
programs, including preliminary or final findings concerning their
effectiveness. The board shall mail the report to statewide
associations of [registered] nurses and[, registered nurse]
educators[,] and employers of [registered] nurses that request a
copy. [The board shall issue a final report not later than
September 1, 2000.]
SECTION 3. Sections 301.1605(a) and (c), Occupations Code,
are amended to read as follows:
(a) The board may approve and adopt rules regarding pilot
programs for innovative applications in the practice and regulation
of [professional] nursing.
(c) In approving a pilot program, the board may grant the
program an exception to the mandatory reporting requirements of
Sections 301.401-301.409 or to a rule adopted under this chapter or
Chapter 303 that relates to the practice of [professional] nursing,
including education and reporting requirements for [registered]
nurses. The board may not grant an exception to:
(1) the education requirements of this chapter unless
the program includes alternate but substantially equivalent
requirements; or
(2) the mandatory reporting requirements unless the
program:
(A) is designed to evaluate the efficiency of
alternative reporting methods; and
(B) provides consumers adequate protection from
[registered] nurses whose continued practice is a threat to public
safety.
SECTION 4. Sections 301.1606(a) and (b), Occupations Code,
are amended to read as follows:
(a) The [Before January 1, 2004, the] board may [shall]
solicit proposals for pilot programs designed to evaluate the
efficacy and effect on protection of the public of reporting
systems designed to encourage identification of system errors.
(b) The board may grant a pilot program approved under this
section an exception to the mandatory reporting requirements of
Sections 301.401-301.409 or to a rule adopted under this chapter or
Chapter 303 that relates to the practice of [professional] nursing,
including education and reporting requirements for [registered]
nurses. If the board grants an exception, the board may require
that the program:
(1) provide for the remediation of the deficiencies of
a [registered] nurse who has knowledge or skill deficiencies that
unless corrected may result in an unreasonable risk to public
safety;
(2) provide for supervision of the nurse during
remediation of deficiencies under Subdivision (1);
(3) require reporting to the board of a [registered]
nurse:
(A) who fails to satisfactorily complete
remediation, or who does not make satisfactory progress in
remediation, under Subdivision (1);
(B) whose incompetence in the practice of
[professional] nursing would pose a continued risk of harm to the
public; or
(C) whose error contributed to a patient death or
serious patient injury; or
(4) provide for a nursing peer review committee to
review whether a [registered] nurse is appropriate for remediation
under Subdivision (1).
SECTION 5. Subchapter E, Chapter 301, Occupations Code, is
amended by adding Sections 301.206 and 301.207 to read as follows:
Sec. 301.206. CONFIDENTIALITY OF INFORMATION COLLECTED FOR
EMERGENCY RELIEF PROGRAMS. (a) In this section, "emergency relief
program" means a program operated or sponsored by the federal
government, the state, or a nonprofit organization to provide
nurses to assist in providing health care to victims or potential
victims of a disaster or state or local emergency.
(b) A nurse's personal contact information, including email
addresses, telephone numbers, and fax numbers, collected by the
board for use by an emergency relief program is:
(1) confidential and not subject to disclosure under
Chapter 552, Government Code; and
(2) not subject to disclosure, discovery, subpoena, or
other means of legal compulsion for release to anyone other than for
the purpose of contacting the nurse to assist in an emergency relief
program.
Sec. 301.207. CONFIDENTIALITY OF HEALTH INFORMATION
PROVIDED FOR LICENSURE. Information regarding a person's diagnosis
or treatment for a physical condition, mental condition, or
chemical dependency that the person submits to the board for a
petition for a declaratory order of eligibility for a license or for
an application for an initial license or a license renewal under
this chapter is confidential to the same extent information
collected on a nurse as part of an investigation of a complaint is
confidential under Section 301.466.
SECTION 6. Section 301.257(a), Occupations Code, is amended
to read as follows:
(a) A person may petition the board for a declaratory order
as to the person's eligibility for a license under this chapter if
the person has reason to believe that the person is ineligible for
the license and:
(1) is enrolled or planning to enroll in an
educational program that prepares a person for an initial license
as a registered nurse or vocational nurse; or [and]
(2) is an applicant for a [has reason to believe that
the person is ineligible for the] license.
SECTION 7. Section 301.401(2), Occupations Code, is amended
to read as follows:
(2) "Minor incident" means conduct by a nurse that
does not indicate that the nurse's continued practice poses a risk
of harm to a patient or another person. This term is synonymous
with "minor error" or "minor violation of this chapter or board
rule."
SECTION 8. Subchapter J, Chapter 301, Occupations Code, is
amended by adding Section 301.4521 to read as follows:
Sec. 301.4521. PHYSICAL AND PSYCHOLOGICAL EVALUATION. (a)
In this section:
(1) "Applicant" means:
(A) a petitioner for a declaratory order of
eligibility for a license; or
(B) an applicant for an initial license or
renewal of a license.
(2) "Evaluation" means a physical or psychological
evaluation conducted to determine a person's fitness to practice
nursing.
(b) The board may require a nurse or applicant to submit to
an evaluation based on probable cause that the nurse or applicant is
unable to practice nursing with reasonable skill and safety to
patients.
(1) The request under this subsection shall be based
on the nurse or applicant having a physical impairment, a mental
impairment or a problem with chemical dependency or abuse of drugs
or alcohol.
(2) A request for an evaluation under this Subsection
shall be in writing and set out the reasons why probable cause
exists to require the evaluation and that if the nurse refuses to
submit to the evaluation, a hearing shall be scheduled before an
Administrative Law Judge who, after hearing evidence from board and
nurses, shall make a final determination if probable cause exists.
(3) If the nurse or applicant refuses to submit to the
evaluation, the board shall schedule a hearing on the issue of
probable cause to be conducted by the State Office of
Administrative Hearings. The nurse or applicant must be notified
of the hearing by personal service or certified mail. The hearing
is limited to the issue of whether the board had probable cause to
require an evaluation. The nurse or applicant may present
testimony and other evidence at the hearing to show why the nurse or
applicant should not be required to submit to the evaluation. The
board shall have the burden of proving that probable cause exists.
At the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the board's request for evaluation. The
order shall not be subjected to being vacated or modified by the
board under Section 2001.058, Government Code.
(4) If a nurse or applicant refuses to submit to an
evaluation after an order requiring the evaluation is entered under
Subdivision (3), the board may:
(A) refuse to issue or renew a license;
(B) suspend a license; or
(C) issue an order limiting the license.
(c) The board may request a nurse or applicant to consent to
an evaluation by a practitioner approved by the board if the board
is not authorized to require an evaluation under Subsection (b).
(1) A request for an evaluation under this subsection
shall be in writing and set out the reasons why the board is
requesting the evaluation, the type of evaluation requested, how
the evaluation may be used by the board, and that the person may
refuse to submit to the evaluation but if refuses, may not introduce
the person's own evaluation into evidence except as permitted by
Subdivision (2).
(2) If a nurse or applicant refuses to consent to the
evaluation, the nurse or applicant may not introduce an evaluation
into evidence at a hearing to determine the nurse or applicant's
right to be issued or retain a nursing license unless the nurse or
applicant:
(A) not later than the 30th day before the date of
the hearing, notifies the board that an evaluation will be
introduced into evidence at the hearing;
(B) provides the board the results of that
evaluation;
(C) informs the board of any other evaluations by
any other practitioners; and
(D) consents to an evaluation by a practitioner
that meets board standards established under Subsection (d).
(d) The board shall establish by rule the qualifications for
a licensed practitioner to conduct an evaluation under this
section. The board shall maintain a list of qualified
practitioners. The board may solicit qualified practitioners
located throughout the state to be on the list.
(e) A nurse or applicant shall pay the costs of an
evaluation conducted under this section.
(f) The results of an evaluation under this section are:
(1) confidential and not subject to disclosure under
Chapter 552, Government Code; and
(2) not subject to disclosure by discovery, subpoena,
or other means of legal compulsion for release to anyone other than
the nurse or applicant, except that the results may be:
(A) introduced as evidence in a proceeding before
the board or a hearing conducted by the State Office of
Administrative Hearings under this chapter; or
(B) included in the findings of fact and
conclusions of law in a final board order.
(g) If the board determines there is insufficient evidence
to bring action against a person based on the results of any
evaluation under this section, the evaluation must be expunged from
the board's records.
(h) The board shall adopt guidelines by rule for requiring
or requesting a nurse or applicant to submit to an evaluation under
this section.
(i) The authority granted to the board under this section is
in addition to the board's authority to make licensing decisions
under this chapter.
SECTION 9. Sections 301.453(a) and (b), Occupations Code,
are amended to read as follows:
(a) If the board determines that a person has committed an
act listed in Section 301.452(b), the board shall enter an order
imposing one or more of the following:
(1) denial of the person's application for a license,
license renewal, or temporary permit;
(2) issuance of a written warning;
(3) administration of a public reprimand;
(4) limitation or restriction of the person's license,
including:
(A) limiting to or excluding from the person's
practice one or more specified activities of nursing; or
(B) stipulating periodic board review;
(5) suspension of the person's license [for a period
not to exceed five years];
(6) revocation of the person's license; or
(7) assessment of a fine.
(b) In addition to or instead of an action under Subsection
(a), the board, by order, may require the person to:
(1) submit to care, counseling, or treatment by a
health provider designated by the board as a condition for the
issuance or renewal of a license;
(2) participate in a program of education or
counseling prescribed by the board, including a program of remedial
education;
(3) practice for a specified period under the
direction of a registered nurse or vocational nurse designated by
the board; or
(4) perform public service the board considers
appropriate.
SECTION 10. Section 301.4535, Occupations Code, is amended
by adding Subsection (a-1) and amending Subsection (b) to read as
follows:
(a-1) An applicant or nurse who is refused an initial
license or renewal of a license or whose license is suspended under
Subsection (a) is not eligible for a probationary, stipulated, or
otherwise encumbered license unless the board establishes by rule
criteria that would permit the issuance or renewal of the license.
(b) On final conviction or a plea of guilty or nolo
contendere for an offense listed in Subsection (a), the board, as
appropriate, may not issue a license to an applicant, shall refuse
to renew a license, or shall revoke a license [if the applicant or
license holder did not previously disclose the conviction or plea
and the fifth anniversary of the date the person successfully
completed community supervision or parole has not occurred].
SECTION 11. Subchapter J, Chapter 301, Occupations Code, is
amended by adding Section 301.4551 to read as follows:
Sec. 301.4551. TEMPORARY LICENSE SUSPENSION FOR DRUG OR
ALCOHOL USE. The board shall temporarily suspend the license of a
nurse as provided by Section 301.455 if the nurse is under a board
order prohibiting the use of alcohol or a drug or a board order
requiring the nurse to participate in a peer assistance program,
and the nurse:
(1) tests positive for alcohol or a prohibited drug;
(2) refuses to comply with a board order to submit to a
drug or alcohol test; or
(3) fails to participate in the peer assistance
program and the program issues a letter of dismissal and referral
back to the board because of noncompliance.
SECTION 12. Section 301.468, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (e) and (f) to
read as follows:
(a) The board may determine that an order denying a license
application or suspending a license be probated. A person subject
to a probation order shall conform to each condition the board sets
as the terms of probation, including a condition:
(1) limiting the practice of the person to, or
excluding, one or more specified activities of professional nursing
or vocational nursing; [or]
(2) requiring the person to submit to supervision,
care, counseling, or treatment by a practitioner designated by the
board; or
(3) requiring the person to submit to random drug or
alcohol tests in the manner prescribed by the board.
(e) A hearing under this section is limited to a
determination of whether the person violated the terms of the
probation order under Subsection (a) and whether the board should:
(1) continue, rescind, or modify the terms of
probation, including imposing an administrative penalty; or
(2) enter an order denying, suspending, or revoking
the person's license.
(f) If one of the conditions of probation is the prohibition
of using alcohol or a drug or participation in a peer assistance
program, violation of that condition is established by:
(1) a positive drug or alcohol test result;
(2) refusal to submit to a drug or alcohol test as
required by the board; or
(3) a letter of dismissal from the peer assistance
program for noncompliance.
SECTION 13. Section 301.202(b), Occupations Code, is
repealed.
SECTION 14. (a) The change in law made by Section 301.4521,
Occupations Code, as added by this Act, applies only to an
application filed with the Board of Nursing on or after the
effective date of this Act. An application filed before the
effective date of this Act is covered by the law in effect when the
application was filed, and the former law is continued in effect for
that purpose.
(b) The changes in law made by Section 301.4551, Occupations
Code, as added by this Act, and Section 301.468, Occupations Code,
as amended by this Act, apply only to a violation of an order issued
by the Board of Nursing on or after the effective date of this Act.
A violation of an order issued by the Board of Nurse Examiners
before the effective date of this Act is covered by the law in
effect when the order was issued, and the former law is continued in
effect for that purpose.
(c) The change in law made by Section 301.458, Occupations
Code, as amended by this Act, applies only to a formal charge filed
on or after the effective date of this Act. A formal charge filed
before the effective date of this Act is covered by the law in
effect when the charge was filed, and the former law is continued in
effect for that purpose.
SECTION 15. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.