By: McReynolds, Pena (Senate Sponsor - Nelson) H.B. No. 3961
(In the Senate - Received from the House April 29, 2009;
May 1, 2009, read first time and referred to Committee on Health
and Human Services; May 11, 2009, reported adversely, with
favorable Committee Substitute by the following vote: Yeas 8,
Nays 0; May 11, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 3961 By: Nelson
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 301.155(c), Occupations Code, is amended
to read as follows:
(c) The board shall assess a [$3] surcharge of not less than
$3 or more than $5 for a registered nurse and a [$2] surcharge of not
less than $2 or more than $3 for a vocational nurse to the fee
established by the board under Subsection (a) for a license holder
to renew a license under this chapter. The board may use nine cents
of the registered nurse surcharge and six cents of the vocational
nurse surcharge to cover the administrative costs of collecting and
depositing the surcharge. The board quarterly shall transmit the
remainder of each surcharge to the Department of State Health
Services to be used only to implement the nursing resource section
under Section 105.002, Health and Safety Code. The board is not
required to collect the surcharge if the board determines the funds
collected are not appropriated for the purpose of funding the
nursing resource section.
SECTION 2. Section 301.157, Occupations Code, is amended by
amending Subsection (d-4) and adding Subsections (d-8), (d-9),
(d-10), and (d-11) to read as follows:
(d-4) The board may recognize and accept as approved under
this section a school of nursing or educational program operated in
another state and approved by a state board of nursing or other
regulatory body of that [another] state. The board shall develop
policies to ensure that the other state's [state board's] standards
are substantially equivalent to the board's standards.
(d-8) For purposes of Subsection (d-4), a nursing program
is considered to meet standards substantially equivalent to the
board's standards if the program:
(1) is part of an institution of higher education
located outside this state that is approved by the appropriate
regulatory authorities of that state;
(2) holds regional accreditation by an accrediting
body recognized by the United States secretary of education and the
Council for Higher Education Accreditation;
(3) holds specialty accreditation by an accrediting
body recognized by the United States secretary of education and the
Council for Higher Education Accreditation, including the National
League for Nursing Accrediting Commission;
(4) requires program applicants to be a licensed
practical or vocational nurse, a military service corpsman, or a
paramedic, or to hold a college degree in a clinically oriented
health care field with demonstrated experience providing direct
patient care; and
(5) graduates students who:
(A) achieve faculty-determined program outcomes,
including passing criterion-referenced examinations of nursing
knowledge essential to beginning a registered nursing practice and
transitioning to the role of registered nurse;
(B) pass a criterion-referenced summative
performance examination developed by faculty subject matter
experts that measures clinical competencies essential to beginning
a registered nursing practice and that meets nationally recognized
standards for educational testing, including the educational
testing standards of the American Educational Research
Association, the American Psychological Association, and the
National Council on Measurement in Education; and
(C) pass the National Council Licensure
Examination for Registered Nurses at a rate equivalent to the
passage rate for students of approved in-state programs.
(d-9) A graduate of a clinical competency assessment
program operated in another state and approved by a state board of
nursing or other regulatory body of another state is eligible to
apply for an initial license under this chapter if:
(1) the board allowed graduates of the program to
apply for an initial license under this chapter continuously during
the 10-year period preceding January 1, 2007;
(2) the program does not make any substantial changes
in the length or content of its clinical competency assessment
without the board's approval;
(3) the program remains in good standing with the
state board of nursing or other regulatory body in the other state;
and
(4) the program participates in the research study
under Section 105.008, Health and Safety Code.
(d-10) In this section, the terms "clinical competency
assessment program" and "supervised clinical learning experiences
program" have the meanings assigned by Section 105.008, Health and
Safety Code.
(d-11) Subsections (d-8), (d-9), (d-10), and (d-11) expire
December 31, 2017. As part of the first review conducted under
Section 301.003 after September 1, 2009, the Sunset Advisory
Commission shall:
(1) recommend whether Subsections (d-8) and (d-9)
should be extended; and
(2) recommend any changes to Subsections (d-8) and
(d-9) relating to the eligibility for a license of graduates of a
clinical competency assessment program operated in another state.
SECTION 3. 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 4. 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 5. 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 6. 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 7. 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
e-mail 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 8. 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 9. 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 10. 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 only if the board has probable cause to believe that
the nurse or applicant is unable to practice nursing with
reasonable skill and safety to patients because of:
(1) physical impairment;
(2) mental impairment; or
(3) chemical dependency or abuse of drugs or alcohol.
(c) A demand for an evaluation under Subsection (b) must be
in writing and state:
(1) the reasons probable cause exists to require the
evaluation; and
(2) that refusal by the nurse or applicant to submit to
the evaluation will result in an administrative hearing to be held
to make a final determination of whether probable cause for the
evaluation exists.
(d) 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 has
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 demand for an evaluation. The order may not
be vacated or modified under Section 2001.058, Government Code.
(e) If a nurse or applicant refuses to submit to an
evaluation after an order requiring the evaluation is entered under
Subsection (d), the board may:
(1) refuse to issue or renew a license;
(2) suspend a license; or
(3) issue an order limiting the license.
(f) The board may request a nurse or applicant to consent to
an evaluation by a practitioner approved by the board for a reason
other than a reason listed in Subsection (b). A request for an
evaluation under this subsection must be in writing and state:
(1) the reasons for the request;
(2) the type of evaluation requested;
(3) how the board may use the evaluation;
(4) that the nurse or applicant may refuse to submit to
an evaluation; and
(5) the procedures for submitting an evaluation as
evidence in any hearing regarding the issuance or renewal of the
nurse's or applicant's license.
(g) If a nurse or applicant refuses to consent to an
evaluation under Subsection (f), the nurse or applicant may not
introduce an evaluation into evidence at a hearing to determine the
nurse's or applicant's right to be issued or retain a nursing
license unless the nurse or applicant:
(1) 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;
(2) provides the board the results of that evaluation;
(3) informs the board of any other evaluations by any
other practitioners; and
(4) consents to an evaluation by a practitioner that
meets board standards established under Subsection (h).
(h) 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.
(i) A nurse or applicant shall pay the costs of an
evaluation conducted under this section.
(j) 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, 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.
(k) 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.
(l) The board shall adopt guidelines for requiring or
requesting a nurse or applicant to submit to an evaluation under
this section.
(m) 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 11. 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 12. 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 13. 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 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 to
the board for noncompliance.
SECTION 14. 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 noncompliance from the peer assistance
program.
SECTION 15. Section 63.202(f), Education Code, is amended
to read as follows:
(f) Notwithstanding the limitation provided by Subsection
(b), grants awarded under Subsection (c) for the state fiscal
biennium ending on August 31, 2009, and the fiscal biennium ending
on August 31, 2011, by the Texas Higher Education Coordinating
Board shall be awarded to programs preparing students for initial
licensure as registered nurses or programs preparing qualified
faculty members with a master's or doctoral degree for the program,
including programs at two-year institutions of higher education,
four-year general academic teaching institutions, health science
centers, and independent or private institutions of higher
education, or to the nursing resource section established under
Section 105.002(b), Health and Safety Code. In awarding grants
under this subsection, the coordinating board may:
(1) give priority to institutions proposing to address
the shortage of registered nurses by promoting innovation in
education, recruitment, and retention of nursing students and
qualified faculty;
(2) award grants on a competitive basis; [and]
(3) consider the availability of matching funds; and
(4) fund a study by the nursing resource section to
evaluate the competencies of clinical judgment and behaviors that
professional nursing students should possess at the time of
graduation.
SECTION 16. Chapter 105, Health and Safety Code, is amended
by adding Section 105.008 to read as follows:
Sec. 105.008. STUDY OF ALTERNATE WAYS TO ASSURE CLINICAL
COMPETENCY OF GRADUATES OF NURSING EDUCATIONAL PROGRAMS. (a) In
this section:
(1) "Clinical competency assessment program" means a
professional nursing prelicensure program that employs a
criterion-referenced summative performance examination, developed
by subject matter experts, to verify its graduates' attainment of
the clinical competency necessary for initial licensure as a
registered nurse.
(2) "Professional nursing prelicensure program" means
a professional nursing educational program that prepares students
to obtain an initial license as a registered nurse.
(3) "Research study" means the study described by
Subsection (b).
(4) "Supervised clinical learning experiences
program" means a professional nursing prelicensure program that
requires students to complete a required number of supervised
clinical learning experiences provided by qualified clinical
faculty involving multiple, ongoing assessments and feedback.
(b) To the extent funding is available, the nursing resource
section established under Section 105.002(b) shall conduct a
research study to identify:
(1) a set of expected student outcomes in terms of
clinical judgment and behaviors that professional nursing students
should possess at the time of graduation from a professional
nursing prelicensure program;
(2) standardized, reliable, and valid clinical exit
evaluation tools that could be used to evaluate the competencies in
clinical judgment and behaviors that professional nursing students
possess at the time of graduation from a professional nursing
prelicensure program;
(3) any correlation between the success rate of
graduates of professional nursing prelicensure programs on
standardized clinical exit evaluation tools and their educational
and experiential background, including:
(A) length and type of health care work
experience before entering the professional nursing prelicensure
programs;
(B) health care work experience during the
professional nursing prelicensure programs; and
(C) alternative methods of teaching clinical
judgment and behaviors, including supervised clinicals and
simulation laboratories; and
(4) any correlation between the required number of
hours in supervised clinical learning experiences and expected
student outcomes in terms of clinical judgment and behaviors.
(c) In addition to any other objective, the research study
must be designed to determine if the graduates of a clinical
competency assessment program are substantially equivalent to the
graduates of supervised clinical learning experiences programs in
terms of clinical judgments and behaviors. For purposes of this
subsection, the clinical competency assessment program must be one
that:
(1) has been requiring a clinical competency
assessment for at least 10 years;
(2) has students who reside in this state;
(3) has graduates who have been considered by the
Texas Board of Nursing to be eligible to apply for a registered
nurse license as a result of graduating from the program on or
before January 1, 2007; and
(4) conducts the clinical competency assessment at a
facility or facilities located in this state under the supervision
of a qualified clinical faculty member who is a registered nurse and
who holds a master's or doctoral degree in nursing.
(d) Considerations to be used in determining substantial
equivalence under Subsection (c) must include the differences
between the clinical competency assessment program and the
supervised clinical learning experiences program in:
(1) the methods of evaluating students' clinical
judgment and behaviors;
(2) performance on standardized clinical exit
evaluation tools;
(3) the ability of graduates to transition to and
assimilate in the registered nurse's role; and
(4) passage rates on the National Council Licensure
Examination.
(e) The nursing resource section shall contract with an
independent researcher to develop the research design and conduct
the research. The independent researcher must be selected by a
selection committee composed of:
(1) one representative elected by a majority of the
nursing advisory committee under Section 104.0155, who is the chair
of the selection committee;
(2) one representative designated by the Texas Health
Care Policy Council;
(3) the presiding officer of the Texas Board of
Nursing;
(4) one representative of the Texas Higher Education
Coordinating Board, designated by the governor;
(5) one representative designated by the Texas
Hospital Association;
(6) one representative designated by the Texas
Association of Business;
(7) one representative designated by a clinical
competency assessment program that meets the requirements of
Section 301.157(d-8), Occupations Code; and
(8) the nurse researcher member of the nursing
advisory committee under Section 104.0155.
(f) The nursing resource section shall complete the study
not later than June 30, 2014, and shall submit a report to the
office of the governor, the Senate Committee on Health and Human
Services, and the House Committee on Public Health. The report must
include a research abstract prepared by the independent researcher.
(g) The nursing resource section may cooperate with the
Texas Board of Nursing and the Texas Higher Education Coordinating
Board in conducting the study.
(h) The nursing advisory committee formed under Section
104.0155 shall serve as the oversight committee for the study.
(i) Any data collected as part of the study that contains
information identifying specific students, patients, or health
care facilities is confidential, is not subject to disclosure under
Chapter 552, Government Code, and may not be released unless all
identifying information is removed.
(j) In addition to funds appropriated by the legislature,
the nursing resource section may solicit, receive, and spend
grants, gifts, and donations from public or private sources for the
purpose of conducting the study.
(k) If grants or other funds are available through the
National Council of State Boards of Nursing that could be used to
fund the study, the nursing resource section shall apply for the
funds to the maximum amount available up to the estimated cost of
the study. In making the application or accepting the funding, the
nursing resource section may not relinquish any oversight
responsibility for the study, including responsibility for
designing and conducting the research or developing the findings.
SECTION 17. Section 301.202(b), Occupations Code, is
repealed.
SECTION 18. (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 Texas 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 Texas Board of Nursing on or after the effective date of this
Act. A violation of an order issued by the Texas Board of Nursing
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.
SECTION 19. 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.
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