Texas 2009 - 81st Regular

Texas Senate Bill SB1000 Compare Versions

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1	1	81R1484 BEF-D
2	2	By: Gallegos S.B. No. 1000
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the practice of nursing; providing civil penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	ARTICLE 1. HOSPITAL PATIENT PROTECTION ACT
10	10	SECTION 1.01. Chapter 241, Health and Safety Code, is
11	11	amended by adding Subchapter I to read as follows:
12	12	SUBCHAPTER I. HOSPITAL PATIENT PROTECTION
13	13	Sec. 241.251. SHORT TITLE. This subchapter may be cited as
14	14	the Hospital Patient Protection Act.
15	15	Sec. 241.252. DEFINITIONS. In this subchapter:
16	16	(1) "Direct care registered nurse" means a nurse
17	17	described by Section 301.651, Occupations Code.
18	18	(2) "Nurse" has the meaning assigned by Section
19	19	301.002, Occupations Code.
20	20	Sec. 241.253. HOSPITAL NURSING SERVICE REQUIRED. Each
21	21	hospital shall maintain an organized nursing service. The hospital
22	22	shall ensure that the nursing service:
23	23	(1) is available 24 hours each day;
24	24	(2) is adequately organized, equipped, and staffed to
25	25	meet the needs of the hospital's patients; and
26	26	(3) meets the requirements of this subchapter and
27	27	rules adopted by the department.
28	28	Sec. 241.254. ORGANIZATION OF NURSING SERVICE. (a) Each
29	29	hospital's nursing service must be under the direction of a chief
30	30	nursing officer. To qualify as chief nursing officer a person must
31	31	be currently licensed to practice professional nursing under
32	32	Chapter 301, Occupations Code, and must meet the requirements under
33	33	rules adopted by the department and the Texas Board of Nursing.
34	34	(b) The chief nursing officer shall report directly to the
35	35	senior manager of the hospital.
36	36	(c) A hospital's governing board shall adopt the following
37	37	written policies:
38	38	(1) an unconditional assurance that the chief nursing
39	39	officer has authority over the hospital's nursing service and is
40	40	responsible and accountable for the operation of the nursing
41	41	service;
42	42	(2) a complete description of the structure of the
43	43	hospital nursing service, including any committees or nursing
44	44	service units, and a designation of the person accountable for the
45	45	operation of each part of the nursing service;
46	46	(3) a clear definition of the relationship between the
47	47	hospital nursing service, hospital administration, hospital
48	48	departments, and medical staff; and
49	49	(4) a requirement that a committee in the hospital may
50	50	not consider an issue affecting nursing care unless the committee
51	51	includes at least one direct care registered nurse as a full
52	52	participating and voting member.
53	53	Sec. 241.255. COMPETENCY. A hospital may not assign a
54	54	nurse or unlicensed nursing staff member to a nursing unit or
55	55	clinical area unless:
56	56	(1) the hospital and the nurse or staff member
57	57	determine under written guidelines developed by the hospital that
58	58	the nurse or staff member is currently competent to provide care in
59	59	the unit or area; and
60	60	(2) the nurse or staff member has received training
61	61	with regard to the unit or area sufficient to allow the nurse or
62	62	staff member to provide safe, therapeutic, and competent care to
63	63	the patients in the unit or area.
64	64	Sec. 241.256. NURSE STAFFING. (a) Each hospital shall
65	65	have on duty at all times:
66	66	(1) a sufficient number of direct care registered
67	67	nurses to meet the requirements of this section; and
68	68	(2) any additional nurses and unlicensed nursing staff
69	69	members required under the hospital's patient classification
70	70	system.
71	71	(b) The chief nursing officer for a hospital or a person
72	72	designated by the chief nursing officer shall develop a written
73	73	nurse staffing plan for each shift in each patient care unit in the
74	74	hospital, based on the validated output of the hospital's patient
75	75	classification system. The plan shall specify the number of direct
76	76	care registered nurses, other nurses, and unlicensed nursing staff
77	77	members required to meet the needs of the patients in each patient
78	78	care unit.
79	79	(c) Each hospital's nurse staffing plan must anticipate
80	80	fluctuations in the number of patients in each patient care unit
81	81	from routine causes, including admissions, discharges, and
82	82	transfers. If an emergency declared by a federal, state, or local
83	83	government causes a sudden change in the number of patients in a
84	84	patient care unit, the hospital shall make an immediate and
85	85	diligent effort to maintain the staffing levels required by this
86	86	section and shall document that effort.
87	87	(d) The hospital may not designate the chief nursing officer
88	88	as a charge nurse or as a direct care registered nurse in the nurse
89	89	staffing plan.
90	90	(e) Each hospital shall develop a process by which any staff
91	91	member can provide feedback and make a recommendation regarding the
92	92	nurse staffing plan.
93	93	(f) A hospital may use an unlicensed nursing staff member to
94	94	assist with simple nursing procedures. Each unlicensed nursing
95	95	staff member must meet the competency requirements under Section
96	96	241.255. The hospital shall develop policies to define the
97	97	responsibilities of an unlicensed nursing staff member and to limit
98	98	the unlicensed nursing staff member's duties to tasks that do not
99	99	require a license as a nurse.
100	100	(g) A hospital may not permit an unlicensed nursing staff
101	101	member to perform any function that requires a substantial amount
102	102	of scientific knowledge or technical skill, including:
103	103	(1) administration of medication;
104	104	(2) venipuncture or intravenous therapy;
105	105	(3) parenteral or tube feedings;
106	106	(4) moderately complex laboratory tests;
107	107	(5) invasive procedures, including inserting
108	108	nasogastric tubes, inserting catheters, or tracheal suctioning;
109	109	(6) assessing a patient's condition; and
110	110	(7) educating a patient or a patient's family about the
111	111	patient's health care problem or post-discharge care instructions.
112	112	(h) A hospital may use a nurse or an unlicensed nursing
113	113	staff member from a temporary nursing agency only if:
114	114	(1) the nurse or unlicensed nursing staff member meets
115	115	the competency requirements under Section 241.255;
116	116	(2) the hospital develops and follows a written
117	117	procedure to train and evaluate a nurse or unlicensed nursing staff
118	118	member from a temporary nursing agency; and
119	119	(3) the hospital evaluates a nurse or unlicensed
120	120	nursing staff member from a temporary nursing agency at least as
121	121	often as it evaluates a nurse or unlicensed nursing staff member who
122	122	is permanently employed by the hospital.
123	123	(i) Each hospital shall verify and document that each nurse
124	124	employed permanently or temporarily by the hospital is currently
125	125	licensed.
126	126	Sec. 241.257. MINIMUM NURSE STAFFING LEVELS. (a) Each
127	127	hospital shall have on duty at all times at least one direct care
128	128	registered nurse for each:
129	129	(1) patient care unit in the hospital;
130	130	(2) operating room to serve as circulating nurse who
131	131	is not otherwise assisting with the surgery;
132	132	(3) emergency department to triage a patient when the
133	133	patient arrives in the emergency department;
134	134	(4) two patients in a critical care unit, including an
135	135	intensive care unit, burn center, coronary care unit, or acute
136	136	respiratory unit that provides care to patients who require:
137	137	(A) continuous monitoring;
138	138	(B) complex nursing interventions;
139	139	(C) direct observation by a direct care
140	140	registered nurse;
141	141	(D) intensive assessment or evaluation; or
142	142	(E) specialized education for the patient or the
143	143	patient's family or representative;
144	144	(5) two patients in a newborn intensive care unit;
145	145	(6) patient who is in active labor or has medical or
146	146	obstetrical complications;
147	147	(7) patient who is undergoing cesarean delivery or for
148	148	whom epidural anesthesia is being initiated;
149	149	(8) three antepartum patients who are not in active
150	150	labor;
151	151	(9) three mother-baby couplets in a postpartum area of
152	152	the perinatal service, not to exceed six patients for each direct
153	153	care registered nurse in the event of a multiple birth;
154	154	(10) four mothers on a postpartum service for a direct
155	155	care registered nurse assigned to mothers only;
156	156	(11) five well babies in a nursery;
157	157	(12) newborn who is undergoing resuscitation or who
158	158	the direct care registered nurse determines is unstable;
159	159	(13) four recently born infants;
160	160	(14) three patients on a combined labor, delivery, and
161	161	postpartum area of the perinatal service, consisting of one woman
162	162	who is not in active labor and one postpartum mother-baby couplet;
163	163	(15) three patients in a pediatric service unit;
164	164	(16) two patients in a postanesthesia recovery unit;
165	165	(17) patient who is receiving conscious sedation;
166	166	(18) three patients in an emergency department when
167	167	patients are receiving treatment;
168	168	(19) two patients in an emergency department who are
169	169	eligible for admission to a critical care unit;
170	170	(20) trauma patient who has an injury that:
171	171	(A) requires a live-saving intervention; or
172	172	(B) poses an immediate threat to life or limb;
173	173	(21) three patients in a step-down unit who require:
174	174	(A) intermediate intensive care;
175	175	(B) direct monitoring by a direct care registered
176	176	nurse;
177	177	(C) multiple assessments;
178	178	(D) a specialized intervention, evaluation, or
179	179	education;
180	180	(E) invasive monitoring, telemetry, or
181	181	mechanical ventilation, but not necessarily artificial life
182	182	support; or
183	183	(F) more care than can be provided in a medical or
184	184	surgical care unit;
185	185	(22) three patients in a telemetry unit who are
186	186	receiving intermediate intensive care through electronic
187	187	monitoring and observation of cardiac electrical signals;
188	188	(23) four patients in a medical or surgical care unit
189	189	who require continuous care through direct observation and are
190	190	receiving 24-hour inpatient general medical care or postsurgical
191	191	care;
192	192	(24) four patients in a specialty care unit designed
193	193	to provide care to a specific patient population or for a specific
194	194	medical condition;
195	195	(25) four patients in a psychiatric unit;
196	196	(26) five patients in a rehabilitation unit designed
197	197	to restore an ill or injured patient to self-sufficiency or gainful
198	198	employment; and
199	199	(27) five patients in a skilled nursing facility
200	200	designed to provide care to a patient on a long-term basis after
201	201	being discharged from another hospital unit.
202	202	(b) Each hospital shall ensure that at least two direct care
203	203	registered nurses are physically present in an emergency department
204	204	at all times when a patient is present.
205	205	(c) A hospital may not at any time make any direct care
206	206	registered nurse responsible for the care of a greater number of
207	207	patients than the number specified in Subsection (a). A hospital
208	208	may not average the number of patients and direct care registered
209	209	nurses to determine compliance with Subsection (a).
210	210	(d) A hospital shall assign a patient to a unit or service
211	211	based only on the health care needs of the patient and not to affect
212	212	compliance with this section.
213	213	(e) The staffing requirements of this section apply to a
214	214	unit or service of a hospital that provides services similar or
215	215	identical to the services customarily provided by a unit or service
216	216	specifically named in this section, regardless of the name given to
217	217	the unit or service by the hospital.
218	218	Sec. 241.258. REQUIRED POSTING OF STAFFING PLAN;
219	219	RECORDS. (a) A hospital shall ensure that the following
220	220	information from the nurse staffing plan is posted for public view
221	221	at the beginning of each shift in each patient care unit:
222	222	(1) the nurse staffing requirement for the unit as
223	223	determined by the patient classification system;
224	224	(2) the actual nurse staffing provided on the unit;
225	225	and
226	226	(3) any variance between the nurse staffing required
227	227	by the patient classification system and the actual nurse staffing
228	228	provided on the unit.
229	229	(b) A hospital shall maintain a record of each direct care
230	230	registered nurse and licensed vocational nurse assigned to each
231	231	patient for each shift.
232	232	(c) A hospital shall:
233	233	(1) retain the information required to be posted under
234	234	Subsection (a) for a period of two years; and
235	235	(2) permanently retain the information required to be
236	236	maintained under Subsection (b).
237	237	Sec. 241.259. HOSPITAL PATIENT CLASSIFICATION
238	238	SYSTEM. (a) Each hospital shall develop and use a patient
239	239	classification system to determine the number of nurses and
240	240	unlicensed nursing staff members required for each shift in each
241	241	patient care unit in the hospital. The patient classification
242	242	system shall consider:
243	243	(1) the nursing care requirements of each patient in
244	244	the unit, based on an assessment by the patient's direct care
245	245	registered nurse of:
246	246	(A) the severity of the patient's illness or
247	247	injury, including any secondary diagnosis;
248	248	(B) the patient's need for any specialized
249	249	equipment or technology;
250	250	(C) the complexity of the clinical judgment
251	251	required to assess, plan, implement, and evaluate the care plan for
252	252	the patient;
253	253	(D) the patient's ability for self-care,
254	254	including any motor, sensory, or cognitive deficit;
255	255	(E) the need for patient advocacy services
256	256	provided by a direct care registered nurse; and
257	257	(F) the type of license required by the staff who
258	258	will care for the patient;
259	259	(2) the patient care delivery system in the hospital;
260	260	(3) the physical layout of the nursing unit;
261	261	(4) generally accepted standards of nursing practice;
262	262	(5) unique characteristics of the hospital's patient
263	263	population; and
264	264	(6) the ability of the direct care registered nursing
265	265	staff to effectively provide assessment, nursing diagnosis,
266	266	planning, and intervention to each patient.
267	267	(b) A hospital may not consider any fiscal or budget issue
268	268	in developing and implementing the patient classification system.
269	269	(c) The patient classification system must include a method
270	270	to validate the amount of nursing care needed for each category of
271	271	patient.
272	272	(d) The hospital shall develop a mechanism to test the
273	273	accuracy of the validation method in Subsection (c). This mechanism
274	274	must address the amount of nursing care needed by patient category
275	275	and by pattern of care delivery. The hospital shall test the
276	276	accuracy of the validation method at least annually, and more
277	277	frequently when warranted by changes in the patient population,
278	278	skill mix of the staff, or patient care delivery model.
279	279	(e) The patient classification system must be fully
280	280	transparent. The hospital shall submit the following information
281	281	to the department:
282	282	(1) the methodology used by the system to predict
283	283	nurse staffing requirements;
284	284	(2) each factor, assumption, and value used in the
285	285	methodology;
286	286	(3) an explanation of the scientific and empirical
287	287	basis for each assumption and value used in the methodology; and
288	288	(4) a report by a committee of direct care registered
289	289	nurses who work in units covered by the system on the adequacy and
290	290	accuracy of the information submitted by the hospital under this
291	291	section.
292	292	(f) The committee under Subsection (e)(4) shall be
293	293	appointed by:
294	294	(1) the chief nursing officer, if direct care
295	295	registered nurses in the hospital are not represented under a
296	296	collective bargaining agreement; or
297	297	(2) the collective bargaining agent, if direct care
298	298	registered nurses in the hospital are represented under a
299	299	collective bargaining agreement.
300	300	(g) The information required under Subsection (e) must be
301	301	accompanied by a statement by a representative of the hospital that
302	302	the information submitted by the hospital completely and accurately
303	303	reflects the implementation of a valid patient classification
304	304	system used to determine nurse staffing for each shift in each
305	305	patient care unit in the hospital. The statement must be
306	306	acknowledged under oath and contain an express acknowledgement that
307	307	a false statement constitutes fraud and a violation of Section
308	308	37.10, Penal Code.
309	309	(h) The department shall make the information submitted
310	310	under Subsection (e) available to the public.
311	311	(i) A hospital may not use any methodology, technology,
312	312	system, device, or computer hardware or software to determine nurse
313	313	staffing requirements that:
314	314	(1) considers any factor other than individual patient
315	315	need;
316	316	(2) employs any method or uses any information to
317	317	determine a patient's health care requirements other than an
318	318	assessment performed by the patient's direct care registered nurse;
319	319	(3) purports to be proprietary; or
320	320	(4) restricts the complete transparency and
321	321	disclosure of each operational element, methodology, formula,
322	322	assumption, and value used by the system.
323	323	(j) Each hospital shall develop a process by which any
324	324	interested staff member can provide feedback and make a
325	325	recommendation regarding the patient classification system.
326	326	Sec. 241.260. REVIEW OF PATIENT CLASSIFICATION
327	327	SYSTEM. (a) Each hospital shall submit its patient
328	328	classification system to an annual review to determine whether the
329	329	system accurately measures the health care needs of individual
330	330	patients and predicts direct care registered nurse staffing
331	331	requirements.
332	332	(b) The review shall be conducted by a committee, at least
333	333	half of the members of which are direct care registered nurses who
334	334	provide patient care in the units covered by the system. The chief
335	335	nursing officer of the hospital shall appoint the members of the
336	336	committee, except that if the direct care registered nurses in the
337	337	hospital are represented under a collective bargaining agreement,
338	338	the authorized collective bargaining agent shall appoint the direct
339	339	care registered nurse members of the committee.
340	340	(c) The committee shall report its findings to the hospital.
341	341	If the committee cannot agree on its findings, then the findings of
342	342	a majority of the direct care registered nurse members of the
343	343	committee shall be the committee's findings.
344	344	(d) The hospital shall implement any change to the patient
345	345	classification system recommended by the committee to improve the
346	346	accuracy of the system in measuring patient care needs not later
347	347	than the 30th day after the date the hospital receives the
348	348	recommendation.
349	349	Sec. 241.261. UNIFORM STATEWIDE PATIENT CLASSIFICATION
350	350	SYSTEM. The executive commissioner of the Health and Human
351	351	Services Commission and the Texas Board of Nursing shall jointly
352	352	adopt rules implementing a uniform patient classification system
353	353	that meets the requirements for a hospital patient classification
354	354	system under Section 241.259 for use by each hospital in this state.
355	355	Sec. 241.262. UNIFORM STATEWIDE PATIENT CLASSIFICATION
356	356	SYSTEM ADVISORY COMMITTEE. (a) In this section, "committee"
357	357	means the Uniform Statewide Patient Classification System Advisory
358	358	Committee.
359	359	(b) The committee consists of 35 members appointed jointly
360	360	by the department and the Texas Board of Nursing. At least 18
361	361	members of the committee must be direct care registered nurses. The
362	362	committee shall include technical and scientific experts who are
363	363	capable of providing advice on the technical design and
364	364	implementation of a patient classification system.
365	365	(c) A person is not eligible to serve on the committee if the
366	366	person has an interest in the development, marketing, or purchasing
367	367	of a private patient classification system product. A person who is
368	368	nominated to be a member of the committee shall file with the
369	369	department a sworn statement disclosing any interest the person has
370	370	in a private patient classification system product.
371	371	(d) The committee shall advise the department on the design
372	372	and implementation of a uniform patient classification system for
373	373	use by each hospital in this state. Not later than the first
374	374	anniversary of its initial meeting, the committee shall submit a
375	375	report to the department and the Texas Board of Nursing with
376	376	recommended standards for a patient classification system for use
377	377	by each hospital in this state. The report must be sufficiently
378	378	detailed to allow the department to review and implement the
379	379	recommended standards. The department shall make the report
380	380	available to the public.
381	381	(e) Chapter 2110, Government Code, does not apply to the
382	382	size or composition of the committee.
383	383	(f) This section expires September 1, 2012.
384	384	SECTION 1.02. Sections 241.256(a)-(d), 241.257, 241.258,
385	385	241.259, and 241.260, Health and Safety Code, as added by this Act,
386	386	do not apply before March 1, 2011, to a facility designated as a
387	387	critical access hospital by the United States Department of Health
388	388	and Human Services.
389	389	SECTION 1.03. The executive commissioner of the Health and
390	390	Human Services Commission and the Texas Board of Nursing shall
391	391	jointly adopt rules under Section 241.261, Health and Safety Code,
392	392	as added by this Act, not later than March 1, 2011.
393	393	ARTICLE 2. OTHER AMENDMENTS TO HEALTH AND SAFETY CODE
394	394	SECTION 2.01. Section 161.0315, Health and Safety Code, is
395	395	amended by adding Subsection (b-1) to read as follows:
396	396	(b-1) A medical peer review committee or medical committee
397	397	may not conduct peer review of a direct care registered nurse or
398	398	evaluate the license, employment, or practice of a direct care
399	399	registered nurse, as that term is defined by Section 241.252.
400	400	SECTION 2.02. Section 241.026, Health and Safety Code, is
401	401	amended by amending Subsections (a) and (c) and adding Subsection
402	402	(g) to read as follows:
403	403	(a) The board shall adopt and enforce rules to further the
404	404	purposes of this chapter. The rules at a minimum shall address:
405	405	(1) minimum requirements for staffing by physicians
406	406	[and nurses];
407	407	(2) hospital services relating to patient care;
408	408	(3) fire prevention, safety, and sanitation
409	409	requirements in hospitals;
410	410	(4) patient care and a patient bill of rights;
411	411	(5) compliance with other state and federal laws
412	412	affecting the health, safety, and rights of hospital patients;
413	413	[and]
414	414	(6) implementation and enforcement of the minimum
415	415	requirements for staffing by nurses under Section 241.257; and
416	416	(7) implementation and enforcement of the minimum
417	417	standards for competent practice by a nurse or unlicensed nursing
418	418	staff member under Section 241.255 [compliance with nursing peer
419	419	review under Subchapter I, Chapter 301, and Chapter 303,
420	420	Occupations Code, and the rules of the Texas Board of Nursing
421	421	relating to peer review].
422	422	(c) Except as provided by Subsection (g), on [Upon] the
423	423	recommendation of the hospital licensing director and the council,
424	424	the board by order may waive or modify the requirement of a
425	425	particular provision of this Act or minimum standard adopted by
426	426	board rule under this section to a particular general or special
427	427	hospital if the board determines that the waiver or modification
428	428	will facilitate the creation or operation of the hospital and that
429	429	the waiver or modification is in the best interests of the
430	430	individuals served or to be served by the hospital.
431	431	(g) The board may not waive or modify the requirements of
432	432	Section 241.257 unless the board makes express written findings,
433	433	supported by a written record and issued after public notice and a
434	434	reasonable opportunity for public comment, that the waiver:
435	435	(1) will not jeopardize the health, safety, and
436	436	well-being of patients affected by the waiver; and
437	437	(2) is needed to increase the operational efficiency
438	438	of the hospital.
439	439	SECTION 2.03. Section 241.051(a), Health and Safety Code,
440	440	is amended to read as follows:
441	441	(a) The department may make any inspection, survey, or
442	442	investigation that it considers necessary. A representative of the
443	443	department may enter the premises of a hospital at any [reasonable]
444	444	time, with or without advance notice, to make an inspection, a
445	445	survey, or an investigation to assure compliance with or prevent a
446	446	violation of this chapter, the rules adopted under this chapter, an
447	447	order or special order of the commissioner of health, a special
448	448	license provision, a court order granting injunctive relief, or
449	449	other enforcement procedures. The department shall maintain the
450	450	confidentiality of hospital records as applicable under state or
451	451	federal law.
452	452	SECTION 2.04. Section 241.052, Health and Safety Code, is
453	453	amended to read as follows:
454	454	Sec. 241.052. COMPLIANCE WITH RULES AND STANDARDS. (a) A
455	455	hospital that is in operation when an applicable rule or minimum
456	456	standard is adopted under this chapter must be given a reasonable
457	457	amount of additional time [period] within which to comply with the
458	458	rule or standard if the hospital applies to the department for a
459	459	waiver of the immediate application of the rule and the department
460	460	determines that good cause exists to delay the application of the
461	461	rule to the hospital.
462	462	(b) The period for compliance may not exceed six months,
463	463	except that the department may extend the period for compliance in
464	464	30-day increments up to an additional [beyond] six months if the
465	465	hospital sufficiently shows the department that it requires
466	466	additional time to complete compliance with the rule or standard
467	467	due to a circumstance beyond the hospital's control. The board may
468	468	not extend the period for compliance with Section 241.257 beyond
469	469	six months.
470	470	SECTION 2.05. Section 241.055, Health and Safety Code, is
471	471	amended by amending Subsections (b) and (c) and by adding
472	472	Subsections (b-1), (b-2), and (e) to read as follows:
473	473	(b) A hospital that violates Chapter 301, Occupations Code,
474	474	Subsection (a) of this section, another provision of this chapter,
475	475	or a rule adopted or enforced under this chapter is liable for a
476	476	civil penalty of not more than $25,000 [$1,000] for each day of
477	477	violation and for each act of violation. A hospital that violates
478	478	this chapter or a rule or order adopted under this chapter relating
479	479	to the provision of mental health, chemical dependency, or
480	480	rehabilitation services is liable for a civil penalty of not more
481	481	than $25,000 for each day of violation and for each act of
482	482	violation.
483	483	(b-1) A hospital that violates Subchapter I is liable for a
484	484	civil penalty of not more than $25,000 for each act of violation of
485	485	that subchapter. The hospital is liable for an additional $10,000
486	486	for each shift in each patient care unit that has staffing levels in
487	487	violation of Sections 241.256 and 241.257.
488	488	(b-2) A hospital that interferes with a nurse's duty and
489	489	right of patient advocacy under Section 301.356, Occupations Code,
490	490	is liable for a civil penalty of not more than $25,000 for each act
491	491	of violation.
492	492	(c) In determining the amount of the penalty, the district
493	493	court shall consider:
494	494	(1) the hospital's degree of culpability and history
495	495	of prior offenses [previous violations];
496	496	(2) the seriousness of the violation, including the
497	497	nature, circumstances, extent, and gravity of the violation;
498	498	(3) whether the health and safety of the public was
499	499	threatened by the violation;
500	500	(4) any actual harm or injury caused or threatened by
501	501	the violation, including any exposure of licensed personnel to:
502	502	(A) a breach of professional responsibility;
503	503	(B) potential license suspension or revocation;
504	504	or
505	505	(C) malpractice liability; [the demonstrated
506	506	good faith of the hospital; and]
507	507	(5) the amount necessary to deter future violations;
508	508	(6) the effort and expense incurred by a person
509	509	presenting, providing essential information for, or assisting in
510	510	the presentation of the claim; and
511	511	(7) any other matter that justice may require.
512	512	(e) The court may order any additional remedy, sanction, or
513	513	corrective action that the court finds is necessary to remedy the
514	514	violation and prevent future violations.
515	515	SECTION 2.06. Section 241.056, Health and Safety Code, is
516	516	amended by amending Subsection (a) and adding Subsection (a-1) to
517	517	read as follows:
518	518	(a) A person who is harmed by a violation under Section
519	519	241.028 or 241.055 or Subchapter I, and a person exposed to a risk
520	520	of harm by a violation of Subchapter I, may petition a district
521	521	court for appropriate injunctive relief.
522	522	(a-1) In addition, a nurse or other person who is harmed or
523	523	exposed to a risk of harm by a violation of Subchapter I may file a
524	524	suit to recover:
525	525	(1) the greater of:
526	526	(A) the actual damages incurred by the person,
527	527	including damages for mental anguish, regardless of whether other
528	528	injury is shown; or
529	529	(B) $25,000 per violation;
530	530	(2) exemplary damages;
531	531	(3) court costs; and
532	532	(4) reasonable attorney's fees.
533	533	SECTION 2.07. Section 241.059(a), Health and Safety Code,
534	534	is amended to read as follows:
535	535	(a) The commissioner of health may assess an administrative
536	536	penalty against a hospital that violates this chapter, a rule
537	537	adopted pursuant to this chapter, a special license provision, an
538	538	order or emergency order issued by the commissioner or the
539	539	commissioner's designee, or another enforcement procedure
540	540	permitted under this chapter. The commissioner shall assess an
541	541	administrative penalty against a hospital that violates Section
542	542	166.004. The penalty under this section may be assessed in addition
543	543	to any penalty assessed under Section 241.055.
544	544	SECTION 2.08. The executive commissioner of the Health and
545	545	Human Services Commission shall adopt rules required under Section
546	546	241.026(a), Health and Safety Code, as added by this Act, not later
547	547	than December 1, 2009.
548	548	ARTICLE 3. DIRECT CARE REGISTERED NURSES
549	549	SECTION 3.01. Chapter 301, Occupations Code, is amended by
550	550	adding Subchapter N to read as follows:
551	551	SUBCHAPTER N. DIRECT CARE REGISTERED NURSE
552	552	Sec. 301.651. DIRECT CARE REGISTERED NURSE. (a) A person is
553	553	a direct care registered nurse if the person:
554	554	(1) is currently licensed to practice professional
555	555	nursing under this chapter;
556	556	(2) has documented clinical competence under Section
557	557	241.255, Health and Safety Code; and
558	558	(3) accepts a direct, hands-on patient care
559	559	assignment.
560	560	(b) A manager or supervisor is not a direct care registered
561	561	nurse.
562	562	Sec. 301.652. PRACTICE BY DIRECT CARE REGISTERED NURSE. (a)
563	563	A direct care registered nurse shall:
564	564	(1) employ scientific knowledge and experience in the
565	565	physical, social, and biological sciences;
566	566	(2) exercise independent judgment in applying the
567	567	nursing process; and
568	568	(3) directly provide:
569	569	(A) continuous assessment of each patient's
570	570	condition based on the direct care registered nurse's independent
571	571	professional judgment;
572	572	(B) planning, clinical supervision,
573	573	implementation, and evaluation of the nursing care provided to each
574	574	patient, or assign these tasks under the guidelines prescribed by
575	575	Subsection (b); and
576	576	(C) assessment, planning, implementation, and
577	577	evaluation of patient education, including discharge instructions
578	578	for each patient, or personally assign these tasks to another nurse
579	579	or to an unlicensed nursing staff member.
580	580	(b) A direct care registered nurse may assign the
581	581	implementation of nursing care to another licensed nurse or to an
582	582	unlicensed nursing staff member if:
583	583	(1) the direct care registered nurse does not assign a
584	584	task to a person who is not licensed to perform the task;
585	585	(2) the person to whom the task is assigned is prepared
586	586	to and capable of competently performing the task;
587	587	(3) the assignment of the task is not prohibited by
588	588	law; and
589	589	(4) the direct care registered nurse is able to
590	590	effectively supervise the nursing care provided by the person
591	591	assigned the task.
592	592	(c) A direct care registered nurse shall initiate the
593	593	planning and delivery of patient care at the time a patient is
594	594	admitted. The direct care registered nurse shall ensure that the
595	595	planning and delivery of patient care reflects all elements of the
596	596	nursing process, including assessment, planning, intervention,
597	597	evaluation, and patient advocacy.
598	598	(d) A direct care registered nurse shall develop a nursing
599	599	care plan for each patient through coordination with the patient,
600	600	the patient's family, or the patient's representative, as
601	601	appropriate, and other health care professionals involved in the
602	602	care of the patient.
603	603	(e) A direct care registered nurse shall evaluate the
604	604	effectiveness of each patient's nursing care plan through
605	605	communication with the patient and other health care professionals
606	606	and through assessment of the patient's physical condition,
607	607	behavior, signs and symptoms of illness, and reactions to
608	608	treatment. The direct care registered nurse shall modify the
609	609	nursing care plan when necessary.
610	610	(f) A direct care registered nurse may not engage in the
611	611	practice known as "charting by exception." The direct care
612	612	registered nurse shall permanently record in each patient's medical
613	613	record information about:
614	614	(1) the nursing diagnosis;
615	615	(2) the nursing plan;
616	616	(3) interventions made by the nurse;
617	617	(4) patient advocacy undertaken by the nurse;
618	618	(5) evaluations of the patient made by the nurse;
619	619	(6) the patient's initial assessment;
620	620	(7) reassessments of the patient;
621	621	(8) the patient's condition;
622	622	(9) observations of the patient; and
623	623	(10) data about the patient's care.
624	624	Sec. 301.653. PATIENT ASSESSMENT. (a) A nurse may not
625	625	perform patient assessment unless the nurse is a direct care
626	626	registered nurse. A nurse, other than a direct care registered
627	627	nurse, or an unlicensed nursing staff member may assist a direct
628	628	care registered nurse with data collection.
629	629	(b) Patient assessment includes:
630	630	(1) direct observation of the patient's:
631	631	(A) signs and symptoms of illness;
632	632	(B) reaction to treatment;
633	633	(C) behavior; and
634	634	(D) physical condition;
635	635	(2) interpretation of information obtained from the
636	636	patient and others, including other health care professionals; and
637	637	(3) collection, analysis, synthesis, and evaluation
638	638	of data about a patient.
639	639	Sec. 301.654. INDEPENDENT JUDGMENT. (a) A direct care
640	640	registered nurse shall exercise independent judgment in the best
641	641	interest of the patient.
642	642	(b) A direct care registered nurse may not allow a
643	643	commercial or revenue generation motive of the hospital or of a
644	644	person employing the direct care registered nurse to encumber the
645	645	independent judgment of the direct care registered nurse.
646	646	Sec. 301.655. CLINICAL SUPERVISION. (a) A direct care
647	647	registered nurse who assigns a nursing care task to another nurse or
648	648	to an unlicensed nursing staff member shall:
649	649	(1) ensure that the person to be assigned the task
650	650	possesses the necessary training, experience, and capability to
651	651	competently and safely perform the task to be assigned; and
652	652	(2) effectively supervise the clinical functions and
653	653	nursing care tasks performed by the person assigned the task.
654	654	(b) A direct care registered nurse shall provide clinical
655	655	supervision in the best interest of the patient and may not allow a
656	656	commercial or revenue generation motive of the hospital or a person
657	657	employing the direct care registered nurse to encumber the
658	658	performance of clinical supervision by the direct care registered
659	659	nurse.
660	660	Sec. 301.656. PATIENT CARE ASSIGNMENTS. (a) A direct
661	661	care registered nurse is always responsible for providing safe,
662	662	therapeutic, and competent nursing care to each patient assigned to
663	663	the direct care registered nurse.
664	664	(b) A direct care registered nurse may not accept a patient
665	665	assignment unless the direct care registered nurse reasonably
666	666	believes the direct care registered nurse has the knowledge,
667	667	judgment, skills, and ability necessary to provide the care
668	668	required by the patient. A direct care registered nurse may not
669	669	accept a patient in any clinical unit or with any diagnosis,
670	670	condition, prognosis, or other determinative characteristic of
671	671	nursing care for which the direct care registered nurse does not
672	672	reasonably believe the direct care registered nurse can provide
673	673	clinically competent nursing care.
674	674	(c) The refusal by a direct care registered nurse to accept
675	675	a patient care assignment under this section is an exercise of the
676	676	duty and right of patient advocacy under Section 301.356 and is
677	677	entitled to the protections provided by Section 301.357.
678	678	Sec. 301.657. ACCEPTANCE OF ORDERS. (a) Before
679	679	implementation, a direct care registered nurse must review each
680	680	order for patient care services, including an order for the
681	681	administration of medication, a therapeutic agent, treatment,
682	682	disease prevention, or rehabilitative regimen, to determine if the
683	683	order is:
684	684	(1) in the best interest of the patient;
685	685	(2) initiated by a person legally authorized to issue
686	686	the order; and
687	687	(3) in accordance with the law.
688	688	(b) If a direct care registered nurse determines that an
689	689	order does not meet the requirements of Subsection (a) or has doubt
690	690	regarding the meaning of the order or the conformance of the order
691	691	with the requirements of Subsection (a), the direct care registered
692	692	nurse shall seek clarification from the person who initiated the
693	693	order, the patient's physician, or another appropriate health care
694	694	professional. The direct care registered nurse may not implement
695	695	the order until the direct care registered nurse has obtained
696	696	clarification sufficient to determine that the order meets the
697	697	requirements of Subsection (a).
698	698	(c) If, after receiving clarification of an order under
699	699	Subsection (b), a direct care registered nurse continues to believe
700	700	that the requirements for implementation of the order under
701	701	Subsection (a) have not been satisfied, the direct care registered
702	702	nurse may refuse to implement the order on the basis that the order
703	703	is not in the best interest of the patient.
704	704	(d) A direct care registered nurse who seeks clarification
705	705	of an order under Subsection (b) or refuses to implement an order
706	706	under Subsection (c) is exercising the duty and right of patient
707	707	advocacy under Section 301.356 and is entitled to the protections
708	708	provided by Section 301.357.
709	709	Sec. 301.658. WHISTLE-BLOWER PROTECTION. (a) A direct
710	710	care registered nurse may report to the hospital, an outside
711	711	authority, or the public an action, policy, or condition created by
712	712	a hospital or other person in the health care industry that the
713	713	direct care registered nurse believes:
714	714	(1) violates the law;
715	715	(2) breaches professional ethics;
716	716	(3) impedes competent and safe nursing practice or
717	717	patient care;
718	718	(4) contributes to an adverse patient outcome or
719	719	incident;
720	720	(5) contributes to a sentinel or reportable event;
721	721	(6) is an issue that must be reported to satisfy the
722	722	direct care registered nurse's duty and right of patient advocacy
723	723	under Section 301.356; or
724	724	(7) is a valid argument in support of or against a
725	725	hospital policy or practice relating to the delivery of nursing
726	726	care.
727	727	(b) A person may not take an adverse personnel action or
728	728	discriminate against a direct care registered nurse who makes a
729	729	report authorized under Subsection (a).
730	730	(c) A direct care registered nurse who makes a report
731	731	authorized under Subsection (a) is exercising the duty and right of
732	732	patient advocacy under Section 301.356 and is entitled to the
733	733	protections provided by Section 301.357.
734	734	(d) This section does not authorize the disclosure of
735	735	confidential patient information, unless the disclosure is:
736	736	(1) consented to by the patient;
737	737	(2) required by law; or
738	738	(3) provided in confidence to a government,
739	739	regulatory, or accreditation agency as part of a complaint or
740	740	investigation.
741	741	Sec. 301.659. COLLECTIVE PATIENT ADVOCACY. (a) Direct
742	742	care registered nurses may work collectively to exercise the duty
743	743	and right of patient advocacy.
744	744	(b) In collectively exercising the duty and right of patient
745	745	advocacy, direct care registered nurses have the right to:
746	746	(1) self-organize;
747	747	(2) seek representation to engage in collective
748	748	bargaining with their hospital employer;
749	749	(3) seek any form of mutual aid or protection; and
750	750	(4) form, join, or participate in:
751	751	(A) an independent hospital-based professional
752	752	practice committee;
753	753	(B) a general or specialty registered nursing
754	754	professional association;
755	755	(C) a patient advocacy organization; or
756	756	(D) a labor organization.
757	757	(c) A direct care registered nurse who engages in patient
758	758	advocacy collectively with other direct care registered nurses is
759	759	exercising the duty and right of patient advocacy under Section
760	760	301.356 and is entitled to the protections provided by Section
761	761	301.357.
762	762	ARTICLE 4. OTHER AMENDMENTS TO OCCUPATIONS CODE
763	763	SECTION 4.01. Section 301.352, Occupations Code, is amended
764	764	by amending Subsections (a) and (a-1) and adding Subsection (e) to
765	765	read as follows:
766	766	(a) A person may not suspend, terminate, take an adverse
767	767	personnel action against, or otherwise discipline or discriminate
768	768	against a nurse who refuses to engage in an act or omission relating
769	769	to patient care if the nurse reasonably believes the act or omission
770	770	would:
771	771	(1) be harmful to the patient;
772	772	(2) not be in the best interest of the patient;
773	773	(3) constitute grounds for reporting the hospital to
774	774	the Department of State Health Services under Section 301.402; or
775	775	(4) violate any provision of this chapter or a board
776	776	rule [as provided by Subsection (a-1)].
777	777	(a-1) Subsection (a) applies only [A nurse may refuse to
778	778	engage in an act or omission relating to patient care that would
779	779	constitute grounds for reporting the nurse to the board under
780	780	Subchapter I, that constitutes a minor incident, or that violates
781	781	this chapter or a board rule] if the nurse notifies the person at
782	782	the time of the refusal of [that] the reason for refusing to engage
783	783	in [is that] the act or omission[:
784	784	[(1) constitutes grounds for reporting the nurse to
785	785	the board; or
786	786	[(2) is a violation of this chapter or a rule of the
787	787	board].
788	788	(e) A nurse who refuses to engage in an act or omission under
789	789	this section is exercising the duty and right of patient advocacy
790	790	under Section 301.356 and is entitled to the protections provided
791	791	by Section 301.357.
792	792	SECTION 4.02. Subchapter H, Chapter 301, Occupations Code,
793	793	is amended by adding Section 301.356 to read as follows:
794	794	Sec. 301.356. DUTY AND RIGHT OF PATIENT ADVOCACY. (a) A
795	795	nurse has the duty and the right to act as an advocate for each
796	796	patient assigned to the nurse.
797	797	(b) As circumstances require, a nurse shall:
798	798	(1) take action to improve the care provided to the
799	799	patient;
800	800	(2) try to change a decision or action that is not in
801	801	the best interest of the patient; and
802	802	(3) give the patient the opportunity to make an
803	803	informed decision about the care to be provided to the patient.
804	804	SECTION 4.03. Subchapter H, Chapter 301, Occupations Code,
805	805	is amended by adding Section 301.357 to read as follows:
806	806	Sec. 301.357. CAUSE OF ACTION FOR INTERFERENCE WITH PATIENT
807	807	ADVOCACY. (a) A person may not take an adverse personnel action or
808	808	discriminate against a nurse who exercises the duty and right of
809	809	patient advocacy under Section 301.356.
810	810	(b) A nurse may bring a cause of action against a person who
811	811	violates Subsection (a) to recover:
812	812	(1) the greater of:
813	813	(A) the actual damages incurred by the nurse,
814	814	including damages for mental anguish regardless of whether other
815	815	injury is shown; or
816	816	(B) $10,000;
817	817	(2) exemplary damages;
818	818	(3) court costs; and
819	819	(4) reasonable attorney's fees.
820	820	(c) In addition to the amount recovered under Subsection
821	821	(b), a nurse whose employment is suspended or terminated in
822	822	violation of Subsection (a) is entitled to:
823	823	(1) reinstatement in the nurse's former position, or
824	824	severance pay in an amount equal to three months of the nurse's most
825	825	recent salary; and
826	826	(2) compensation for wages lost during the period of
827	827	suspension or termination.
828	828	(d) A nurse who brings an action under this section has the
829	829	burden of proving that:
830	830	(1) the nurse engaged in an act or omission that
831	831	constituted an exercise of the duty and right of patient advocacy;
832	832	and
833	833	(2) the nurse's exercise of the duty and right of
834	834	patient advocacy was a substantial factor in the person's decision
835	835	to take an adverse personnel action or discriminate against the
836	836	nurse.
837	837	(e) There is a rebuttable presumption that a nurse's
838	838	exercise of the duty and right of patient advocacy was a substantial
839	839	factor in a person's decision to take an adverse personnel action or
840	840	discriminate against the nurse if the person took the adverse
841	841	personnel action or discriminated against the nurse on or before
842	842	the 60th day after the date the nurse engaged in the act or omission
843	843	constituting an exercise of the duty and right of patient advocacy.
844	844	(f) An action under this section may be brought in the
845	845	district court of the county in which:
846	846	(1) the plaintiff resides;
847	847	(2) the plaintiff was employed by the defendant; or
848	848	(3) any defendant conducts business.
849	849	SECTION 4.04. Subchapter H, Chapter 301, Occupations Code,
850	850	is amended by adding Section 301.358 to read as follows:
851	851	Sec. 301.358. FIDUCIARY DUTY. (a) A nurse owes a fiduciary
852	852	duty to each patient assigned to the nurse to act exclusively in the
853	853	best interest of the patient. A nurse may not be influenced in the
854	854	provision of nursing care to the patient by:
855	855	(1) the nurse's own interests;
856	856	(2) the interests of any third party;
857	857	(3) the directives of any interested third party; or
858	858	(4) any motive other than the nurse's responsibility
859	859	to provide safe and competent nursing care in the best interest and
860	860	for the benefit of the patient.
861	861	(b) A nurse may refuse to engage in conduct that violates
862	862	the nurse's fiduciary duty to a patient. A nurse who refuses to
863	863	engage in conduct that violates the fiduciary duty owed to a patient
864	864	is exercising the duty and right of patient advocacy under Section
865	865	301.356 and is entitled to the protections provided by Section
866	866	301.357.
867	867	SECTION 4.05. Sections 301.402(b) and (d), Occupations
868	868	Code, are amended to read as follows:
869	869	(b) A nurse who provides or supervises the care of a patient
870	870	in a hospital shall report to the Department of State Health
871	871	Services [board] in the manner prescribed under Subsection (d) when
872	872	[if] the nurse has reasonable cause to suspect that the hospital has
873	873	policies or is engaging in practices that:
874	874	(1) interfere with the ability of a nurse to perform
875	875	the duties of professional nursing [another nurse has engaged in
876	876	conduct subject to reporting]; [or]
877	877	(2) discourage a nurse through intimidation or
878	878	coercion from exercising the duty and right of patient advocacy
879	879	under Section 301.356;
880	880	(3) violate a standard of safe, competent, and
881	881	therapeutic nursing care established by law; or
882	882	(4) expose a patient to a substantial risk of harm [the
883	883	ability of a nursing student to perform the services of the nursing
884	884	profession would be, or would reasonably be expected to be,
885	885	impaired by chemical dependency].
886	886	(d) A report by a nurse under Subsection (b) must:
887	887	(1) be written and signed; and
888	888	(2) include the following information:
889	889	(A) the name and address of the hospital;
890	890	(B) the name of the most senior manager of the
891	891	hospital;
892	892	(C) the name of the chief nursing officer;
893	893	(D) a description of the policy or practice the
894	894	nurse is reporting; [identity of the nurse or student] and
895	895	(E) any additional information required by the
896	896	board.
897	897	SECTION 4.06. Section 301.411(a), Occupations Code, is
898	898	amended to read as follows:
899	899	(a) A nurse [person] is not liable in a civil action for
900	900	failure to file a report required by this subchapter.
901	901	SECTION 4.07. Section 301.412, Occupations Code, is amended
902	902	to read as follows:
903	903	Sec. 301.412. REPORTING IMMUNITY. A nurse [person] who[,
904	904	without malice,] makes a report required or authorized, or
905	905	reasonably believed to be required or authorized, under this
906	906	subchapter and a person who provides records, information, or
907	907	assistance to the nurse making the report:
908	908	(1) is immune from civil liability based on:
909	909	(A) the act of making the report; and
910	910	(B) the contents of the report; and
911	911	(2) may not be subjected to other retaliatory action
912	912	as a result of making the report.
913	913	SECTION 4.08. Section 301.413, Occupations Code, is amended
914	914	by amending Subsections (a) through (e) and adding Subsection (b-1)
915	915	to read as follows:
916	916	(a) A person named as a defendant in a civil action or
917	917	subjected to other retaliatory action as a result of making
918	918	[filing] a report or providing records, information, or assistance
919	919	in support of a report required, authorized, or reasonably believed
920	920	to be required or authorized under this subchapter [as a result of
921	921	refusing to engage in conduct as authorized by Section 301.352, or
922	922	as a result of requesting in good faith a nursing peer review
923	923	determination under Section 303.005,] may file a counterclaim in
924	924	the pending action or prove a cause of action in a subsequent suit
925	925	to recover defense costs, including reasonable attorney's fees and
926	926	actual and punitive damages, if the suit or retaliatory action is
927	927	determined to be frivolous, unreasonable, or taken in bad faith.
928	928	(b) A person may not suspend or terminate the employment of,
929	929	or otherwise discipline or discriminate against, a nurse [person]
930	930	who[:
931	931	[(1)] reports, without malice, under this
932	932	subchapter[; or
933	933	[(2) requests, in good faith, a nursing peer review
934	934	determination under Section 303.005].
935	935	(b-1) A nurse reports with malice under Subsection (b) if,
936	936	at the time the nurse makes the report, the nurse:
937	937	(1) knows the report is false; or
938	938	(2) has serious doubts about whether the report is
939	939	true.
940	940	(c) A nurse [person] who reports under this subchapter[,
941	941	refuses to engage in conduct as authorized by Section 301.352, or
942	942	requests a nursing peer review determination under Section 303.005]
943	943	has a cause of action against a person who violates Subsection (b),
944	944	and may recover:
945	945	(1) the greater of:
946	946	(A) actual damages, including damages for mental
947	947	anguish even if no other injury is shown; or
948	948	(B) $5,000;
949	949	(2) exemplary damages;
950	950	(3) court costs; and
951	951	(4) reasonable attorney's fees.
952	952	(d) In addition to the amount recovered under Subsection
953	953	(c), a nurse [person] whose employment is suspended or terminated
954	954	in violation of this section is entitled to:
955	955	(1) reinstatement in the nurse's [employee's] former
956	956	position or severance pay in an amount equal to three months of the
957	957	nurse's [employee's] most recent salary; and
958	958	(2) compensation for wages lost during the period of
959	959	suspension or termination.
960	960	(e) A nurse [person] who brings an action under this section
961	961	has the burden of proof. It is a rebuttable presumption that the
962	962	nurse's [person's] employment was suspended or terminated for
963	963	reporting under this subchapter[, for refusing to engage in conduct
964	964	as authorized by Section 301.352, or for requesting a peer review
965	965	committee determination under Section 303.005] if:
966	966	(1) the nurse [person] was suspended or terminated
967	967	within 60 days after the date the report[, refusal, or request] was
968	968	made; and
969	969	(2) the board, the commissioner of the Department of
970	970	State Health Services, or a court determines that[:
971	971	[(A)] the report that is the subject of the cause
972	972	of action was[:
973	973	[(i)] authorized or required under Section
974	974	301.402[, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
975	975	301.409, or 301.410; and
976	976	[(ii) made without malice;
977	977	[(B) the request for a peer review committee
978	978	determination that is the subject of the cause of action was:
979	979	[(i) authorized under Section 303.005; and
980	980	[(ii) made in good faith; or
981	981	[(C) the refusal to engage in conduct was
982	982	authorized by Section 301.352].
983	983	SECTION 4.09. Section 301.452(b), Occupations Code, is
984	984	amended to read as follows:
985	985	(b) A person is subject to denial of a license or to
986	986	disciplinary action under this subchapter for:
987	987	(1) a violation of this chapter, a rule or regulation
988	988	not inconsistent with this chapter, or an order issued under this
989	989	chapter;
990	990	(2) fraud or deceit in procuring or attempting to
991	991	procure a license to practice professional nursing or vocational
992	992	nursing;
993	993	(3) a conviction for, or placement on deferred
994	994	adjudication community supervision or deferred disposition for, a
995	995	felony or for a misdemeanor involving moral turpitude;
996	996	(4) conduct that results in the revocation of
997	997	probation imposed because of conviction for a felony or for a
998	998	misdemeanor involving moral turpitude;
999	999	(5) use of a nursing license, diploma, or permit, or
1000	1000	the transcript of such a document, that has been fraudulently
1001	1001	purchased, issued, counterfeited, or materially altered;
1002	1002	(6) impersonating or acting as a proxy for another
1003	1003	person in the licensing examination required under Section 301.253
1004	1004	or 301.255;
1005	1005	(7) directly or indirectly aiding or abetting an
1006	1006	unlicensed person in connection with the unauthorized practice of
1007	1007	nursing;
1008	1008	(8) revocation, suspension, or denial of, or any other
1009	1009	action relating to, the person's license or privilege to practice
1010	1010	nursing in another jurisdiction;
1011	1011	(9) intemperate use of alcohol or drugs that the board
1012	1012	determines endangers or could endanger a patient;
1013	1013	(10) unprofessional or dishonorable conduct that, in
1014	1014	the board's opinion, is likely to deceive, defraud, or injure a
1015	1015	patient or the public;
1016	1016	(11) adjudication of mental incompetency;
1017	1017	(12) lack of fitness to practice because of a mental or
1018	1018	physical health condition that could result in injury to a patient
1019	1019	or the public; [or]
1020	1020	(13) failure to care adequately for a patient or to
1021	1021	conform to the minimum standards of acceptable nursing practice in
1022	1022	a manner that, in the board's opinion, exposes a patient or other
1023	1023	person unnecessarily to risk of harm; or
1024	1024	(14) failure to take an action that is reasonable for
1025	1025	the nurse to take considering the nurse's position in the hospital
1026	1026	to correct a policy or practice in the administration of nursing
1027	1027	care in the hospital that:
1028	1028	(A) does not conform to a reasonable minimum
1029	1029	standard of nursing practice and safe patient care;
1030	1030	(B) violates a law or accreditation standard; or
1031	1031	(C) exposes a patient to a substantial risk of
1032	1032	harm.
1033	1033	SECTION 4.10. The following sections of the Occupations
1034	1034	Code are repealed:
1035	1035	(1) Sections 301.352(b) and (f);
1036	1036	(2) Section 301.401;
1037	1037	(3) Sections 301.402(e) and (f);
1038	1038	(4) Section 301.4025;
1039	1039	(5) Section 301.403;
1040	1040	(6) Section 301.404;
1041	1041	(7) Section 301.405;
1042	1042	(8) Section 301.406;
1043	1043	(9) Section 301.407;
1044	1044	(10) Section 301.408;
1045	1045	(11) Section 301.409;
1046	1046	(12) Section 301.410;
1047	1047	(13) Section 301.4105;
1048	1048	(14) Section 301.4106;
1049	1049	(15) Section 301.411(b);
1050	1050	(16) Section 301.414;
1051	1051	(17) Section 301.415;
1052	1052	(18) Section 301.416;
1053	1053	(19) Section 301.417;
1054	1054	(20) Section 301.418; and
1055	1055	(21) Section 301.419.
1056	1056	SECTION 4.11. Chapter 303, Occupations Code, is repealed.
1057	1057	ARTICLE 5. CONFORMING AMENDMENTS
1058	1058	SECTION 5.01. Section 103.003(b), Labor Code, is amended to
1059	1059	read as follows:
1060	1060	(b) An employer may not disclose information about a
1061	1061	licensed nurse or licensed vocational nurse that relates to conduct
1062	1062	that is protected under Section 301.352 [or 303.005], Occupations
1063	1063	Code. The employer must provide an affected nurse an opportunity to
1064	1064	submit a statement of reasonable length to the employer to
1065	1065	establish the application of Section 301.352 [or 303.005],
1066	1066	Occupations Code.
1067	1067	SECTION 5.02. Section 301.002(1-b), Occupations Code, is
1068	1068	amended to read as follows:
1069	1069	(1-b) "Patient safety committee" means a committee
1070	1070	established by an association, school, agency, health care
1071	1071	facility, or other organization to address issues relating to
1072	1072	patient safety, including:
1073	1073	(A) the entity's medical staff composed of
1074	1074	individuals licensed under Subtitle B; or
1075	1075	(B) a medical committee under Subchapter D,
1076	1076	Chapter 161, Health and Safety Code [has the meaning assigned by
1077	1077	Section 303.001].
1078	1078	SECTION 5.03. Section 301.160(i), Occupations Code, is
1079	1079	amended to read as follows:
1080	1080	(i) Except as provided by this subsection, in developing or
1081	1081	approving a pilot program under this section the board may exempt
1082	1082	the program from rules adopted under this chapter. [Subchapter I
1083	1083	and Chapter 303 apply to pilot programs, except that Sections
1084	1084	303.002(e), 303.003, and 303.008(b) do not apply to a pilot program
1085	1085	using proactive peer review. The board may establish alternative
1086	1086	criteria for nursing peer review committees conducting proactive
1087	1087	peer review.]
1088	1088	SECTION 5.04. Section 301.1605(c), Occupations Code, is
1089	1089	amended to read as follows:
1090	1090	(c) In approving a pilot program, the board may grant the
1091	1091	program an exception to [the mandatory reporting requirements of
1092	1092	Sections 301.401-301.409 or to] a rule adopted under this chapter
1093	1093	[or Chapter 303] that relates to the practice of professional
1094	1094	nursing, including education and reporting requirements for
1095	1095	registered nurses. The board may not grant an exception to:
1096	1096	(1) the education requirements of this chapter unless
1097	1097	the program includes alternate but substantially equivalent
1098	1098	requirements; or
1099	1099	(2) [the mandatory] reporting requirements unless the
1100	1100	program:
1101	1101	(A) is designed to evaluate the efficiency of
1102	1102	alternative reporting methods; and
1103	1103	(B) provides consumers adequate protection from
1104	1104	registered nurses whose continued practice is a threat to public
1105	1105	safety.
1106	1106	SECTION 5.05. Section 301.1606(b), Occupations Code, is
1107	1107	amended to read as follows:
1108	1108	(b) The board may grant a pilot program approved under this
1109	1109	section an exception to [the mandatory reporting requirements of
1110	1110	Sections 301.401-301.409 or to] a rule adopted under this chapter
1111	1111	[or Chapter 303] that relates to the practice of professional
1112	1112	nursing, including education and reporting requirements for
1113	1113	registered nurses. If the board grants an exception, the board may
1114	1114	require that the program:
1115	1115	(1) provide for the remediation of the deficiencies of
1116	1116	a registered nurse who has knowledge or skill deficiencies that
1117	1117	unless corrected may result in an unreasonable risk to public
1118	1118	safety;
1119	1119	(2) provide for supervision of the nurse during
1120	1120	remediation of deficiencies under Subdivision (1);
1121	1121	(3) require reporting to the board of a registered
1122	1122	nurse:
1123	1123	(A) who fails to satisfactorily complete
1124	1124	remediation, or who does not make satisfactory progress in
1125	1125	remediation, under Subdivision (1);
1126	1126	(B) whose incompetence in the practice of
1127	1127	professional nursing would pose a continued risk of harm to the
1128	1128	public; or
1129	1129	(C) whose error contributed to a patient death or
1130	1130	serious patient injury; or
1131	1131	(4) provide for a nursing peer review committee to
1132	1132	review whether a registered nurse is appropriate for remediation
1133	1133	under Subdivision (1).
1134	1134	ARTICLE 6. EFFECTIVE DATE
1135	1135	SECTION 6.01. (a) Except as provided by Subsections (b) and
1136	1136	(c) of this section, this Act takes effect September 1, 2009.
1137	1137	(b) Section 241.254, Health and Safety Code, as added by
1138	1138	this Act, takes effect January 1, 2010.
1139	1139	(c) Sections 241.256(a), 241.257, 241.258, 241.259, and
1140	1140	241.260, Health and Safety Code, as added by this Act, take effect
1141	1141	March 1, 2010.