Texas 2009 - 81st Regular

Texas House Bill HB591 Compare Versions

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

Old	New	Differences
1	1	81R4239 TJS-F
2	2	By: Howard of Travis H.B. No. 591
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to staffing, overtime, and other employment protections
8	8	for nurses.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
11	11	amended by adding Chapters 257 and 258 to read as follows:
12	12	CHAPTER 257. NURSE STAFFING
13	13	Sec. 257.001. DEFINITIONS. In this chapter:
14	14	(1) "Committee" means a nurse staffing committee
15	15	required by this chapter.
16	16	(2) "Department" means the Department of State Health
17	17	Services.
18	18	(3) "Hospital" means:
19	19	(A) a general hospital or special hospital, as
20	20	those terms are defined by Section 241.003, including a hospital
21	21	maintained or operated by this state; or
22	22	(B) a mental hospital licensed under Chapter 577.
23	23	(4) "Patient care unit" means a unit or area of a
24	24	hospital in which registered nurses provide patient care.
25	25	Sec. 257.002. LEGISLATIVE FINDINGS. (a) The legislature
26	26	finds that:
27	27	(1) research supports a conclusion that adequate nurse
28	28	staffing is directly related to positive patient outcomes and nurse
29	29	satisfaction with the practice environment;
30	30	(2) nurse satisfaction with the practice environment
31	31	is in large measure determined by providing an adequate level of
32	32	nurse staffing based on research findings and patient intensity;
33	33	(3) nurse satisfaction and patient safety can be
34	34	adversely affected when nurses work excessive hours; and
35	35	(4) hospitals and nurses share a mutual interest in
36	36	patient safety initiatives that create a healthy environment for
37	37	nurses and appropriate care for patients.
38	38	(b) In order to protect patients, support greater retention
39	39	of registered nurses, and promote adequate nurse staffing, the
40	40	legislature intends to establish a mechanism whereby nurses and
41	41	hospital management shall participate in a joint process regarding
42	42	decisions about nurse staffing.
43	43	Sec. 257.003. NURSE STAFFING POLICY AND PLAN. (a) The
44	44	governing body of a hospital shall develop, adopt, implement, and
45	45	enforce a written nurse staffing policy to ensure that an adequate
46	46	number and skill mix of nurses are available to meet the level of
47	47	patient care needed. The policy must include a process for:
48	48	(1) requiring the hospital to give significant
49	49	consideration to the nurse staffing plan recommended by the
50	50	hospital's nurse staffing committee and to that committee's
51	51	evaluation of any existing plan;
52	52	(2) developing, adopting, implementing, and enforcing
53	53	an official nurse services staffing plan that is based on the needs
54	54	of each patient care unit and shift and on evidence relating to
55	55	patient care needs;
56	56	(3) using the official nurse services staffing plan as
57	57	a component in setting the nurse staffing budget;
58	58	(4) encouraging nurses to provide input to the
59	59	committee relating to nurse staffing concerns;
60	60	(5) protecting from retaliation nurses who provide
61	61	input to the committee; and
62	62	(6) ensuring compliance with rules adopted by the
63	63	executive commissioner of the Health and Human Services Commission
64	64	relating to nurse staffing.
65	65	(b) The official nurse services staffing plan developed
66	66	under Subsection (a) must:
67	67	(1) reflect current standards established by private
68	68	accreditation organizations, governmental entities, national
69	69	nursing professional associations, and other health professional
70	70	organizations;
71	71	(2) set minimum staffing levels for patient care units
72	72	that are:
73	73	(A) based on multiple nurse and patient
74	74	considerations; and
75	75	(B) determined by the nursing assessment and in
76	76	accordance with evidence-based safe nursing standards;
77	77	(3) include a method for adjusting the staffing plan
78	78	for each patient care unit to provide staffing flexibility to meet
79	79	patient needs; and
80	80	(4) include a contingency plan when patient care needs
81	81	unexpectedly exceed direct patient care staff resources.
82	82	(c) The hospital shall:
83	83	(1) use the official nurse services staffing plan:
84	84	(A) as a component in setting the nurse staffing
85	85	budget; and
86	86	(B) to guide the hospital in assigning nurses
87	87	hospital-wide; and
88	88	(2) make readily available to nurses on each patient
89	89	care unit at the beginning of each shift the official nurse services
90	90	staffing plan levels and current staffing levels for that unit and
91	91	that shift.
92	92	Sec. 257.004. NURSE STAFFING COMMITTEE. (a) A hospital
93	93	shall establish a nurse staffing committee as a standing committee
94	94	of the hospital.
95	95	(b) The committee shall be composed of members who are
96	96	representative of the types of nursing services provided in the
97	97	hospital.
98	98	(c) The chief nursing officer of the hospital is a voting
99	99	member of the committee.
100	100	(d) At least 50 percent of the members of the committee must
101	101	be registered nurses who:
102	102	(1) provide direct patient care during at least 50
103	103	percent of their work time; and
104	104	(2) are selected by their peers who provide direct
105	105	patient care during at least 50 percent of their work time.
106	106	(e) The committee shall meet at least quarterly.
107	107	(f) Participation on the committee by a hospital employee as
108	108	a committee member is part of the employee's work time, and the
109	109	hospital shall compensate that member for that time accordingly.
110	110	The hospital shall relieve a committee member of other work duties
111	111	during committee meetings.
112	112	(g) The committee shall:
113	113	(1) develop and recommend to the hospital's governing
114	114	body a nurse staffing plan that meets the requirements of Section
115	115	257.003;
116	116	(2) review, assess, and respond to staffing concerns
117	117	expressed to the committee;
118	118	(3) identify the nurse-sensitive outcome measures the
119	119	committee will use to evaluate the effectiveness of the official
120	120	nurse services staffing plan;
121	121	(4) evaluate, at least semiannually, the
122	122	effectiveness of the official nurse services staffing plan and
123	123	variations between the plan and the actual staffing; and
124	124	(5) submit to the hospital's governing body, at least
125	125	semiannually, a report on nurse staffing and patient care outcomes,
126	126	including the committee's evaluation of the effectiveness of the
127	127	official nurse services staffing plan and aggregate variations
128	128	between the staffing plan and actual staffing.
129	129	(h) In evaluating the effectiveness of the official nurse
130	130	services staffing plan, the committee shall consider patient needs,
131	131	nursing-sensitive quality indicators, nurse satisfaction measures
132	132	collected by the hospital, and evidence-based nurse staffing
133	133	standards.
134	134	Sec. 257.005. REPORTING OF STAFFING INFORMATION TO
135	135	DEPARTMENT. (a) A hospital shall annually report to the department
136	136	on:
137	137	(1) whether the hospital's governing body has adopted
138	138	a nurse staffing policy as required by Section 257.003;
139	139	(2) whether the hospital has established a nurse
140	140	staffing committee as required by Section 257.004 that meets the
141	141	membership requirements of that section;
142	142	(3) whether the nurse staffing committee has evaluated
143	143	the hospital's official nurse services staffing plan as required by
144	144	Section 257.004 and has reported the results of the evaluation to
145	145	the hospital's governing body as provided by that section; and
146	146	(4) the nurse-sensitive outcome measures the
147	147	committee adopted for use in evaluating the hospital's official
148	148	nurse services staffing plan.
149	149	(b) Information reported under Subsection (a) is public
150	150	information.
151	151	(c) To the extent possible, the department shall collect the
152	152	data required under Subsection (a) as part of a survey required by
153	153	the department under other law.
154	154	CHAPTER 258. MANDATORY OVERTIME FOR NURSES PROHIBITED
155	155	Sec. 258.001. DEFINITIONS. In this chapter:
156	156	(1) "Hospital" means:
157	157	(A) a general hospital or special hospital, as
158	158	those terms are defined by Section 241.003, including a hospital
159	159	maintained or operated by this state; or
160	160	(B) a mental hospital licensed under Chapter 577.
161	161	(2) "Nurse" means a registered nurse or vocational
162	162	nurse licensed under Chapter 301, Occupations Code.
163	163	(3) "On-call time" means time spent by a nurse who is
164	164	not working but who is compensated for availability.
165	165	Sec. 258.002. MANDATORY OVERTIME. For purposes of this
166	166	chapter, "mandatory overtime" means a requirement that a nurse work
167	167	hours or days that are in addition to the hours or days scheduled,
168	168	regardless of the length of a scheduled shift or the number of
169	169	scheduled shifts each week. In determining whether work is
170	170	mandatory overtime, prescheduled on-call time or time immediately
171	171	before or after a scheduled shift necessary to document or
172	172	communicate patient status to ensure patient safety is not
173	173	included.
174	174	Sec. 258.003. PROHIBITION OF MANDATORY OVERTIME. (a) A
175	175	hospital may not require a nurse to work mandatory overtime, and a
176	176	nurse may refuse to work mandatory overtime.
177	177	(b) This section does not prohibit a nurse from volunteering
178	178	to work overtime.
179	179	(c) A hospital may not use on-call time as a substitute for
180	180	mandatory overtime.
181	181	Sec. 258.004. EXCEPTIONS. (a) Section 258.003 does not
182	182	apply if:
183	183	(1) a health care disaster, such as a natural or other
184	184	type of disaster that increases the need for health care personnel,
185	185	unexpectedly affects the county in which the nurse is employed or
186	186	affects a contiguous county;
187	187	(2) a federal, state, or county declaration of
188	188	emergency is in effect in the county in which the nurse is employed
189	189	or is in effect in a contiguous county;
190	190	(3) there is an emergency or unforeseen event of a kind
191	191	that:
192	192	(A) does not regularly occur;
193	193	(B) increases the need for health care personnel
194	194	at the hospital to provide safe patient care; and
195	195	(C) could not prudently be anticipated by the
196	196	hospital; or
197	197	(4) the nurse is actively engaged in an ongoing
198	198	medical or surgical procedure and the continued presence of the
199	199	nurse through the completion of the procedure is necessary to
200	200	ensure the health and safety of the patient.
201	201	(b) If a hospital determines that an exception exists under
202	202	Subsection (a)(3), the hospital shall, to the extent possible, make
203	203	a good faith effort to meet the staffing need through voluntary
204	204	overtime, including calling per diems and agency nurses, assigning
205	205	floats, or requesting an additional day of work from off-duty
206	206	employees.
207	207	Sec. 258.005. RETALIATION PROHIBITED. A hospital may not
208	208	suspend, terminate, or otherwise discipline or discriminate
209	209	against a nurse who refuses to work mandatory overtime. Section
210	210	301.413, Occupations Code, applies to an action that violates this
211	211	section.
212	212	SECTION 2. Subchapter H, Chapter 301, Occupations Code, is
213	213	amended by adding Section 301.356 to read as follows:
214	214	Sec. 301.356. REFUSAL OF MANDATORY OVERTIME. The refusal
215	215	by a nurse to work mandatory overtime as authorized by Chapter 258,
216	216	Health and Safety Code, does not constitute patient abandonment or
217	217	neglect.
218	218	SECTION 3. Section 301.413, Occupations Code, is amended by
219	219	amending Subsections (b), (c), and (e) and adding Subsection (g) to
220	220	read as follows:
221	221	(b) A person may not suspend, [or] terminate [the employment
222	222	of], or otherwise discipline or discriminate against[,] a person
223	223	who:
224	224	(1) reports, without malice, under this subchapter;
225	225	[or]
226	226	(2) requests, in good faith, a nursing peer review
227	227	committee determination under Section 303.005;
228	228	(3) refuses to engage in conduct as authorized by
229	229	Section 301.352; or
230	230	(4) refuses to work mandatory overtime as authorized
231	231	by Chapter 258, Health and Safety Code.
232	232	(c) A person who reports under this subchapter, refuses to
233	233	engage in conduct as authorized by Section 301.352, refuses to work
234	234	mandatory overtime as authorized by Chapter 258, Health and Safety
235	235	Code, or requests a nursing peer review committee determination
236	236	under Section 303.005 has a cause of action against a person who
237	237	violates Subsection (b), and may recover:
238	238	(1) the greater of:
239	239	(A) actual damages, including damages for mental
240	240	anguish even if no other injury is shown; or
241	241	(B) $5,000;
242	242	(2) exemplary damages;
243	243	(3) court costs; and
244	244	(4) reasonable attorney's fees.
245	245	(e) A person who brings an action under this section has the
246	246	burden of proof. It is a rebuttable presumption that the person
247	247	[person's employment] was suspended, [or] terminated, or otherwise
248	248	disciplined or discriminated against for reporting under this
249	249	subchapter, for refusing to engage in conduct as authorized by
250	250	Section 301.352, for refusing to work mandatory overtime as
251	251	authorized by Chapter 258, Health and Safety Code, or for
252	252	requesting a peer review committee determination under Section
253	253	303.005 if:
254	254	(1) the person was suspended, [or] terminated, or
255	255	otherwise disciplined or discriminated against within 60 days after
256	256	the date the report, refusal, or request was made; and
257	257	(2) the board or a court determines that:
258	258	(A) the report that is the subject of the cause of
259	259	action was:
260	260	(i) authorized or required under Section
261	261	301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
262	262	301.409, or 301.410; and
263	263	(ii) made without malice;
264	264	(B) the request for a peer review committee
265	265	determination that is the subject of the cause of action was:
266	266	(i) authorized under Section 303.005; and
267	267	(ii) made in good faith; [or]
268	268	(C) the refusal to engage in conduct was
269	269	authorized by Section 301.352; or
270	270	(D) the refusal to work mandatory overtime was
271	271	authorized by Chapter 258, Health and Safety Code.
272	272	(g) A nurse employed by a hospital operated by or on behalf
273	273	of a state or local governmental entity who alleges a violation of
274	274	Subsection (b) may sue the state or local governmental entity for
275	275	the relief provided by this section and the sovereign immunity of
276	276	the state or local governmental entity from suit and from liability
277	277	is waived for the limited purpose of allowing the nurse to maintain
278	278	a lawsuit in state court to obtain that relief. The provisions of
279	279	Section 554.003, Government Code, relating to the type of relief
280	280	and the amount of damages available to a public employee apply to a
281	281	lawsuit under this subsection. The relief provided by this section
282	282	is in addition to any other remedies a nurse may have under state or
283	283	federal law as a public employee. In this subsection:
284	284	(1) "Local governmental entity," "public employee,"
285	285	and "state governmental entity" have the meanings assigned by
286	286	Section 554.001, Government Code.
287	287	(2) "Hospital" has the meaning assigned by Section
288	288	257.001, Health and Safety Code.
289	289	SECTION 4. It is not the intent of the legislature that the
290	290	executive commissioner of the Health and Human Services Commission
291	291	rewrite the current rules of the Department of State Health
292	292	Services relating to nurse staffing except to the extent the
293	293	current rules conflict with this Act.
294	294	SECTION 5. (a) The executive commissioner of the Health and
295	295	Human Services Commission shall adopt rules for the Department of
296	296	State Health Services as required by this Act as soon as practicable
297	297	after the effective date of this Act, but not later than January 1,
298	298	2010.
299	299	(b) The change in law made by this Act to Section 301.413,
300	300	Occupations Code, applies to an action commenced on or after the
301	301	effective date of this Act. An action commenced before the
302	302	effective date of this Act is governed by the law as it existed
303	303	immediately before the effective date of this Act, and that law is
304	304	continued in effect for that purpose.
305	305	SECTION 6. This Act takes effect September 1, 2009.