81R1484 BEF-D
By: Gallegos S.B. No. 1000
A BILL TO BE ENTITLED
AN ACT
relating to the practice of nursing; providing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. HOSPITAL PATIENT PROTECTION ACT
SECTION 1.01. Chapter 241, Health and Safety Code, is
amended by adding Subchapter I to read as follows:
SUBCHAPTER I. HOSPITAL PATIENT PROTECTION
Sec. 241.251. SHORT TITLE. This subchapter may be cited as
the Hospital Patient Protection Act.
Sec. 241.252. DEFINITIONS. In this subchapter:
(1) "Direct care registered nurse" means a nurse
described by Section 301.651, Occupations Code.
(2) "Nurse" has the meaning assigned by Section
301.002, Occupations Code.
Sec. 241.253. HOSPITAL NURSING SERVICE REQUIRED. Each
hospital shall maintain an organized nursing service. The hospital
shall ensure that the nursing service:
(1) is available 24 hours each day;
(2) is adequately organized, equipped, and staffed to
meet the needs of the hospital's patients; and
(3) meets the requirements of this subchapter and
rules adopted by the department.
Sec. 241.254. ORGANIZATION OF NURSING SERVICE. (a) Each
hospital's nursing service must be under the direction of a chief
nursing officer. To qualify as chief nursing officer a person must
be currently licensed to practice professional nursing under
Chapter 301, Occupations Code, and must meet the requirements under
rules adopted by the department and the Texas Board of Nursing.
(b) The chief nursing officer shall report directly to the
senior manager of the hospital.
(c) A hospital's governing board shall adopt the following
written policies:
(1) an unconditional assurance that the chief nursing
officer has authority over the hospital's nursing service and is
responsible and accountable for the operation of the nursing
service;
(2) a complete description of the structure of the
hospital nursing service, including any committees or nursing
service units, and a designation of the person accountable for the
operation of each part of the nursing service;
(3) a clear definition of the relationship between the
hospital nursing service, hospital administration, hospital
departments, and medical staff; and
(4) a requirement that a committee in the hospital may
not consider an issue affecting nursing care unless the committee
includes at least one direct care registered nurse as a full
participating and voting member.
Sec. 241.255. COMPETENCY. A hospital may not assign a
nurse or unlicensed nursing staff member to a nursing unit or
clinical area unless:
(1) the hospital and the nurse or staff member
determine under written guidelines developed by the hospital that
the nurse or staff member is currently competent to provide care in
the unit or area; and
(2) the nurse or staff member has received training
with regard to the unit or area sufficient to allow the nurse or
staff member to provide safe, therapeutic, and competent care to
the patients in the unit or area.
Sec. 241.256. NURSE STAFFING. (a) Each hospital shall
have on duty at all times:
(1) a sufficient number of direct care registered
nurses to meet the requirements of this section; and
(2) any additional nurses and unlicensed nursing staff
members required under the hospital's patient classification
system.
(b) The chief nursing officer for a hospital or a person
designated by the chief nursing officer shall develop a written
nurse staffing plan for each shift in each patient care unit in the
hospital, based on the validated output of the hospital's patient
classification system. The plan shall specify the number of direct
care registered nurses, other nurses, and unlicensed nursing staff
members required to meet the needs of the patients in each patient
care unit.
(c) Each hospital's nurse staffing plan must anticipate
fluctuations in the number of patients in each patient care unit
from routine causes, including admissions, discharges, and
transfers. If an emergency declared by a federal, state, or local
government causes a sudden change in the number of patients in a
patient care unit, the hospital shall make an immediate and
diligent effort to maintain the staffing levels required by this
section and shall document that effort.
(d) The hospital may not designate the chief nursing officer
as a charge nurse or as a direct care registered nurse in the nurse
staffing plan.
(e) Each hospital shall develop a process by which any staff
member can provide feedback and make a recommendation regarding the
nurse staffing plan.
(f) A hospital may use an unlicensed nursing staff member to
assist with simple nursing procedures. Each unlicensed nursing
staff member must meet the competency requirements under Section
241.255. The hospital shall develop policies to define the
responsibilities of an unlicensed nursing staff member and to limit
the unlicensed nursing staff member's duties to tasks that do not
require a license as a nurse.
(g) A hospital may not permit an unlicensed nursing staff
member to perform any function that requires a substantial amount
of scientific knowledge or technical skill, including:
(1) administration of medication;
(2) venipuncture or intravenous therapy;
(3) parenteral or tube feedings;
(4) moderately complex laboratory tests;
(5) invasive procedures, including inserting
nasogastric tubes, inserting catheters, or tracheal suctioning;
(6) assessing a patient's condition; and
(7) educating a patient or a patient's family about the
patient's health care problem or post-discharge care instructions.
(h) A hospital may use a nurse or an unlicensed nursing
staff member from a temporary nursing agency only if:
(1) the nurse or unlicensed nursing staff member meets
the competency requirements under Section 241.255;
(2) the hospital develops and follows a written
procedure to train and evaluate a nurse or unlicensed nursing staff
member from a temporary nursing agency; and
(3) the hospital evaluates a nurse or unlicensed
nursing staff member from a temporary nursing agency at least as
often as it evaluates a nurse or unlicensed nursing staff member who
is permanently employed by the hospital.
(i) Each hospital shall verify and document that each nurse
employed permanently or temporarily by the hospital is currently
licensed.
Sec. 241.257. MINIMUM NURSE STAFFING LEVELS. (a) Each
hospital shall have on duty at all times at least one direct care
registered nurse for each:
(1) patient care unit in the hospital;
(2) operating room to serve as circulating nurse who
is not otherwise assisting with the surgery;
(3) emergency department to triage a patient when the
patient arrives in the emergency department;
(4) two patients in a critical care unit, including an
intensive care unit, burn center, coronary care unit, or acute
respiratory unit that provides care to patients who require:
(A) continuous monitoring;
(B) complex nursing interventions;
(C) direct observation by a direct care
registered nurse;
(D) intensive assessment or evaluation; or
(E) specialized education for the patient or the
patient's family or representative;
(5) two patients in a newborn intensive care unit;
(6) patient who is in active labor or has medical or
obstetrical complications;
(7) patient who is undergoing cesarean delivery or for
whom epidural anesthesia is being initiated;
(8) three antepartum patients who are not in active
labor;
(9) three mother-baby couplets in a postpartum area of
the perinatal service, not to exceed six patients for each direct
care registered nurse in the event of a multiple birth;
(10) four mothers on a postpartum service for a direct
care registered nurse assigned to mothers only;
(11) five well babies in a nursery;
(12) newborn who is undergoing resuscitation or who
the direct care registered nurse determines is unstable;
(13) four recently born infants;
(14) three patients on a combined labor, delivery, and
postpartum area of the perinatal service, consisting of one woman
who is not in active labor and one postpartum mother-baby couplet;
(15) three patients in a pediatric service unit;
(16) two patients in a postanesthesia recovery unit;
(17) patient who is receiving conscious sedation;
(18) three patients in an emergency department when
patients are receiving treatment;
(19) two patients in an emergency department who are
eligible for admission to a critical care unit;
(20) trauma patient who has an injury that:
(A) requires a live-saving intervention; or
(B) poses an immediate threat to life or limb;
(21) three patients in a step-down unit who require:
(A) intermediate intensive care;
(B) direct monitoring by a direct care registered
nurse;
(C) multiple assessments;
(D) a specialized intervention, evaluation, or
education;
(E) invasive monitoring, telemetry, or
mechanical ventilation, but not necessarily artificial life
support; or
(F) more care than can be provided in a medical or
surgical care unit;
(22) three patients in a telemetry unit who are
receiving intermediate intensive care through electronic
monitoring and observation of cardiac electrical signals;
(23) four patients in a medical or surgical care unit
who require continuous care through direct observation and are
receiving 24-hour inpatient general medical care or postsurgical
care;
(24) four patients in a specialty care unit designed
to provide care to a specific patient population or for a specific
medical condition;
(25) four patients in a psychiatric unit;
(26) five patients in a rehabilitation unit designed
to restore an ill or injured patient to self-sufficiency or gainful
employment; and
(27) five patients in a skilled nursing facility
designed to provide care to a patient on a long-term basis after
being discharged from another hospital unit.
(b) Each hospital shall ensure that at least two direct care
registered nurses are physically present in an emergency department
at all times when a patient is present.
(c) A hospital may not at any time make any direct care
registered nurse responsible for the care of a greater number of
patients than the number specified in Subsection (a). A hospital
may not average the number of patients and direct care registered
nurses to determine compliance with Subsection (a).
(d) A hospital shall assign a patient to a unit or service
based only on the health care needs of the patient and not to affect
compliance with this section.
(e) The staffing requirements of this section apply to a
unit or service of a hospital that provides services similar or
identical to the services customarily provided by a unit or service
specifically named in this section, regardless of the name given to
the unit or service by the hospital.
Sec. 241.258. REQUIRED POSTING OF STAFFING PLAN;
RECORDS. (a) A hospital shall ensure that the following
information from the nurse staffing plan is posted for public view
at the beginning of each shift in each patient care unit:
(1) the nurse staffing requirement for the unit as
determined by the patient classification system;
(2) the actual nurse staffing provided on the unit;
and
(3) any variance between the nurse staffing required
by the patient classification system and the actual nurse staffing
provided on the unit.
(b) A hospital shall maintain a record of each direct care
registered nurse and licensed vocational nurse assigned to each
patient for each shift.
(c) A hospital shall:
(1) retain the information required to be posted under
Subsection (a) for a period of two years; and
(2) permanently retain the information required to be
maintained under Subsection (b).
Sec. 241.259. HOSPITAL PATIENT CLASSIFICATION
SYSTEM. (a) Each hospital shall develop and use a patient
classification system to determine the number of nurses and
unlicensed nursing staff members required for each shift in each
patient care unit in the hospital. The patient classification
system shall consider:
(1) the nursing care requirements of each patient in
the unit, based on an assessment by the patient's direct care
registered nurse of:
(A) the severity of the patient's illness or
injury, including any secondary diagnosis;
(B) the patient's need for any specialized
equipment or technology;
(C) the complexity of the clinical judgment
required to assess, plan, implement, and evaluate the care plan for
the patient;
(D) the patient's ability for self-care,
including any motor, sensory, or cognitive deficit;
(E) the need for patient advocacy services
provided by a direct care registered nurse; and
(F) the type of license required by the staff who
will care for the patient;
(2) the patient care delivery system in the hospital;
(3) the physical layout of the nursing unit;
(4) generally accepted standards of nursing practice;
(5) unique characteristics of the hospital's patient
population; and
(6) the ability of the direct care registered nursing
staff to effectively provide assessment, nursing diagnosis,
planning, and intervention to each patient.
(b) A hospital may not consider any fiscal or budget issue
in developing and implementing the patient classification system.
(c) The patient classification system must include a method
to validate the amount of nursing care needed for each category of
patient.
(d) The hospital shall develop a mechanism to test the
accuracy of the validation method in Subsection (c). This mechanism
must address the amount of nursing care needed by patient category
and by pattern of care delivery. The hospital shall test the
accuracy of the validation method at least annually, and more
frequently when warranted by changes in the patient population,
skill mix of the staff, or patient care delivery model.
(e) The patient classification system must be fully
transparent. The hospital shall submit the following information
to the department:
(1) the methodology used by the system to predict
nurse staffing requirements;
(2) each factor, assumption, and value used in the
methodology;
(3) an explanation of the scientific and empirical
basis for each assumption and value used in the methodology; and
(4) a report by a committee of direct care registered
nurses who work in units covered by the system on the adequacy and
accuracy of the information submitted by the hospital under this
section.
(f) The committee under Subsection (e)(4) shall be
appointed by:
(1) the chief nursing officer, if direct care
registered nurses in the hospital are not represented under a
collective bargaining agreement; or
(2) the collective bargaining agent, if direct care
registered nurses in the hospital are represented under a
collective bargaining agreement.
(g) The information required under Subsection (e) must be
accompanied by a statement by a representative of the hospital that
the information submitted by the hospital completely and accurately
reflects the implementation of a valid patient classification
system used to determine nurse staffing for each shift in each
patient care unit in the hospital. The statement must be
acknowledged under oath and contain an express acknowledgement that
a false statement constitutes fraud and a violation of Section
37.10, Penal Code.
(h) The department shall make the information submitted
under Subsection (e) available to the public.
(i) A hospital may not use any methodology, technology,
system, device, or computer hardware or software to determine nurse
staffing requirements that:
(1) considers any factor other than individual patient
need;
(2) employs any method or uses any information to
determine a patient's health care requirements other than an
assessment performed by the patient's direct care registered nurse;
(3) purports to be proprietary; or
(4) restricts the complete transparency and
disclosure of each operational element, methodology, formula,
assumption, and value used by the system.
(j) Each hospital shall develop a process by which any
interested staff member can provide feedback and make a
recommendation regarding the patient classification system.
Sec. 241.260. REVIEW OF PATIENT CLASSIFICATION
SYSTEM. (a) Each hospital shall submit its patient
classification system to an annual review to determine whether the
system accurately measures the health care needs of individual
patients and predicts direct care registered nurse staffing
requirements.
(b) The review shall be conducted by a committee, at least
half of the members of which are direct care registered nurses who
provide patient care in the units covered by the system. The chief
nursing officer of the hospital shall appoint the members of the
committee, except that if the direct care registered nurses in the
hospital are represented under a collective bargaining agreement,
the authorized collective bargaining agent shall appoint the direct
care registered nurse members of the committee.
(c) The committee shall report its findings to the hospital.
If the committee cannot agree on its findings, then the findings of
a majority of the direct care registered nurse members of the
committee shall be the committee's findings.
(d) The hospital shall implement any change to the patient
classification system recommended by the committee to improve the
accuracy of the system in measuring patient care needs not later
than the 30th day after the date the hospital receives the
recommendation.
Sec. 241.261. UNIFORM STATEWIDE PATIENT CLASSIFICATION
SYSTEM. The executive commissioner of the Health and Human
Services Commission and the Texas Board of Nursing shall jointly
adopt rules implementing a uniform patient classification system
that meets the requirements for a hospital patient classification
system under Section 241.259 for use by each hospital in this state.
Sec. 241.262. UNIFORM STATEWIDE PATIENT CLASSIFICATION
SYSTEM ADVISORY COMMITTEE. (a) In this section, "committee"
means the Uniform Statewide Patient Classification System Advisory
Committee.
(b) The committee consists of 35 members appointed jointly
by the department and the Texas Board of Nursing. At least 18
members of the committee must be direct care registered nurses. The
committee shall include technical and scientific experts who are
capable of providing advice on the technical design and
implementation of a patient classification system.
(c) A person is not eligible to serve on the committee if the
person has an interest in the development, marketing, or purchasing
of a private patient classification system product. A person who is
nominated to be a member of the committee shall file with the
department a sworn statement disclosing any interest the person has
in a private patient classification system product.
(d) The committee shall advise the department on the design
and implementation of a uniform patient classification system for
use by each hospital in this state. Not later than the first
anniversary of its initial meeting, the committee shall submit a
report to the department and the Texas Board of Nursing with
recommended standards for a patient classification system for use
by each hospital in this state. The report must be sufficiently
detailed to allow the department to review and implement the
recommended standards. The department shall make the report
available to the public.
(e) Chapter 2110, Government Code, does not apply to the
size or composition of the committee.
(f) This section expires September 1, 2012.
SECTION 1.02. Sections 241.256(a)-(d), 241.257, 241.258,
241.259, and 241.260, Health and Safety Code, as added by this Act,
do not apply before March 1, 2011, to a facility designated as a
critical access hospital by the United States Department of Health
and Human Services.
SECTION 1.03. The executive commissioner of the Health and
Human Services Commission and the Texas Board of Nursing shall
jointly adopt rules under Section 241.261, Health and Safety Code,
as added by this Act, not later than March 1, 2011.
ARTICLE 2. OTHER AMENDMENTS TO HEALTH AND SAFETY CODE
SECTION 2.01. Section 161.0315, Health and Safety Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) A medical peer review committee or medical committee
may not conduct peer review of a direct care registered nurse or
evaluate the license, employment, or practice of a direct care
registered nurse, as that term is defined by Section 241.252.
SECTION 2.02. Section 241.026, Health and Safety Code, is
amended by amending Subsections (a) and (c) and adding Subsection
(g) to read as follows:
(a) The board shall adopt and enforce rules to further the
purposes of this chapter. The rules at a minimum shall address:
(1) minimum requirements for staffing by physicians
[and nurses];
(2) hospital services relating to patient care;
(3) fire prevention, safety, and sanitation
requirements in hospitals;
(4) patient care and a patient bill of rights;
(5) compliance with other state and federal laws
affecting the health, safety, and rights of hospital patients;
[and]
(6) implementation and enforcement of the minimum
requirements for staffing by nurses under Section 241.257; and
(7) implementation and enforcement of the minimum
standards for competent practice by a nurse or unlicensed nursing
staff member under Section 241.255 [compliance with nursing peer
review under Subchapter I, Chapter 301, and Chapter 303,
Occupations Code, and the rules of the Texas Board of Nursing
relating to peer review].
(c) Except as provided by Subsection (g), on [Upon] the
recommendation of the hospital licensing director and the council,
the board by order may waive or modify the requirement of a
particular provision of this Act or minimum standard adopted by
board rule under this section to a particular general or special
hospital if the board determines that the waiver or modification
will facilitate the creation or operation of the hospital and that
the waiver or modification is in the best interests of the
individuals served or to be served by the hospital.
(g) The board may not waive or modify the requirements of
Section 241.257 unless the board makes express written findings,
supported by a written record and issued after public notice and a
reasonable opportunity for public comment, that the waiver:
(1) will not jeopardize the health, safety, and
well-being of patients affected by the waiver; and
(2) is needed to increase the operational efficiency
of the hospital.
SECTION 2.03. Section 241.051(a), Health and Safety Code,
is amended to read as follows:
(a) The department may make any inspection, survey, or
investigation that it considers necessary. A representative of the
department may enter the premises of a hospital at any [reasonable]
time, with or without advance notice, to make an inspection, a
survey, or an investigation to assure compliance with or prevent a
violation of this chapter, the rules adopted under this chapter, an
order or special order of the commissioner of health, a special
license provision, a court order granting injunctive relief, or
other enforcement procedures. The department shall maintain the
confidentiality of hospital records as applicable under state or
federal law.
SECTION 2.04. Section 241.052, Health and Safety Code, is
amended to read as follows:
Sec. 241.052. COMPLIANCE WITH RULES AND STANDARDS. (a) A
hospital that is in operation when an applicable rule or minimum
standard is adopted under this chapter must be given a reasonable
amount of additional time [period] within which to comply with the
rule or standard if the hospital applies to the department for a
waiver of the immediate application of the rule and the department
determines that good cause exists to delay the application of the
rule to the hospital.
(b) The period for compliance may not exceed six months,
except that the department may extend the period for compliance in
30-day increments up to an additional [beyond] six months if the
hospital sufficiently shows the department that it requires
additional time to complete compliance with the rule or standard
due to a circumstance beyond the hospital's control. The board may
not extend the period for compliance with Section 241.257 beyond
six months.
SECTION 2.05. Section 241.055, Health and Safety Code, is
amended by amending Subsections (b) and (c) and by adding
Subsections (b-1), (b-2), and (e) to read as follows:
(b) A hospital that violates Chapter 301, Occupations Code,
Subsection (a) of this section, another provision of this chapter,
or a rule adopted or enforced under this chapter is liable for a
civil penalty of not more than $25,000 [$1,000] for each day of
violation and for each act of violation. A hospital that violates
this chapter or a rule or order adopted under this chapter relating
to the provision of mental health, chemical dependency, or
rehabilitation services is liable for a civil penalty of not more
than $25,000 for each day of violation and for each act of
violation.
(b-1) A hospital that violates Subchapter I is liable for a
civil penalty of not more than $25,000 for each act of violation of
that subchapter. The hospital is liable for an additional $10,000
for each shift in each patient care unit that has staffing levels in
violation of Sections 241.256 and 241.257.
(b-2) A hospital that interferes with a nurse's duty and
right of patient advocacy under Section 301.356, Occupations Code,
is liable for a civil penalty of not more than $25,000 for each act
of violation.
(c) In determining the amount of the penalty, the district
court shall consider:
(1) the hospital's degree of culpability and history
of prior offenses [previous violations];
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(3) whether the health and safety of the public was
threatened by the violation;
(4) any actual harm or injury caused or threatened by
the violation, including any exposure of licensed personnel to:
(A) a breach of professional responsibility;
(B) potential license suspension or revocation;
or
(C) malpractice liability; [the demonstrated
good faith of the hospital; and]
(5) the amount necessary to deter future violations;
(6) the effort and expense incurred by a person
presenting, providing essential information for, or assisting in
the presentation of the claim; and
(7) any other matter that justice may require.
(e) The court may order any additional remedy, sanction, or
corrective action that the court finds is necessary to remedy the
violation and prevent future violations.
SECTION 2.06. Section 241.056, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) A person who is harmed by a violation under Section
241.028 or 241.055 or Subchapter I, and a person exposed to a risk
of harm by a violation of Subchapter I, may petition a district
court for appropriate injunctive relief.
(a-1) In addition, a nurse or other person who is harmed or
exposed to a risk of harm by a violation of Subchapter I may file a
suit to recover:
(1) the greater of:
(A) the actual damages incurred by the person,
including damages for mental anguish, regardless of whether other
injury is shown; or
(B) $25,000 per violation;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
SECTION 2.07. Section 241.059(a), Health and Safety Code,
is amended to read as follows:
(a) The commissioner of health may assess an administrative
penalty against a hospital that violates this chapter, a rule
adopted pursuant to this chapter, a special license provision, an
order or emergency order issued by the commissioner or the
commissioner's designee, or another enforcement procedure
permitted under this chapter. The commissioner shall assess an
administrative penalty against a hospital that violates Section
166.004. The penalty under this section may be assessed in addition
to any penalty assessed under Section 241.055.
SECTION 2.08. The executive commissioner of the Health and
Human Services Commission shall adopt rules required under Section
241.026(a), Health and Safety Code, as added by this Act, not later
than December 1, 2009.
ARTICLE 3. DIRECT CARE REGISTERED NURSES
SECTION 3.01. Chapter 301, Occupations Code, is amended by
adding Subchapter N to read as follows:
SUBCHAPTER N. DIRECT CARE REGISTERED NURSE
Sec. 301.651. DIRECT CARE REGISTERED NURSE. (a) A person is
a direct care registered nurse if the person:
(1) is currently licensed to practice professional
nursing under this chapter;
(2) has documented clinical competence under Section
241.255, Health and Safety Code; and
(3) accepts a direct, hands-on patient care
assignment.
(b) A manager or supervisor is not a direct care registered
nurse.
Sec. 301.652. PRACTICE BY DIRECT CARE REGISTERED NURSE. (a)
A direct care registered nurse shall:
(1) employ scientific knowledge and experience in the
physical, social, and biological sciences;
(2) exercise independent judgment in applying the
nursing process; and
(3) directly provide:
(A) continuous assessment of each patient's
condition based on the direct care registered nurse's independent
professional judgment;
(B) planning, clinical supervision,
implementation, and evaluation of the nursing care provided to each
patient, or assign these tasks under the guidelines prescribed by
Subsection (b); and
(C) assessment, planning, implementation, and
evaluation of patient education, including discharge instructions
for each patient, or personally assign these tasks to another nurse
or to an unlicensed nursing staff member.
(b) A direct care registered nurse may assign the
implementation of nursing care to another licensed nurse or to an
unlicensed nursing staff member if:
(1) the direct care registered nurse does not assign a
task to a person who is not licensed to perform the task;
(2) the person to whom the task is assigned is prepared
to and capable of competently performing the task;
(3) the assignment of the task is not prohibited by
law; and
(4) the direct care registered nurse is able to
effectively supervise the nursing care provided by the person
assigned the task.
(c) A direct care registered nurse shall initiate the
planning and delivery of patient care at the time a patient is
admitted. The direct care registered nurse shall ensure that the
planning and delivery of patient care reflects all elements of the
nursing process, including assessment, planning, intervention,
evaluation, and patient advocacy.
(d) A direct care registered nurse shall develop a nursing
care plan for each patient through coordination with the patient,
the patient's family, or the patient's representative, as
appropriate, and other health care professionals involved in the
care of the patient.
(e) A direct care registered nurse shall evaluate the
effectiveness of each patient's nursing care plan through
communication with the patient and other health care professionals
and through assessment of the patient's physical condition,
behavior, signs and symptoms of illness, and reactions to
treatment. The direct care registered nurse shall modify the
nursing care plan when necessary.
(f) A direct care registered nurse may not engage in the
practice known as "charting by exception." The direct care
registered nurse shall permanently record in each patient's medical
record information about:
(1) the nursing diagnosis;
(2) the nursing plan;
(3) interventions made by the nurse;
(4) patient advocacy undertaken by the nurse;
(5) evaluations of the patient made by the nurse;
(6) the patient's initial assessment;
(7) reassessments of the patient;
(8) the patient's condition;
(9) observations of the patient; and
(10) data about the patient's care.
Sec. 301.653. PATIENT ASSESSMENT. (a) A nurse may not
perform patient assessment unless the nurse is a direct care
registered nurse. A nurse, other than a direct care registered
nurse, or an unlicensed nursing staff member may assist a direct
care registered nurse with data collection.
(b) Patient assessment includes:
(1) direct observation of the patient's:
(A) signs and symptoms of illness;
(B) reaction to treatment;
(C) behavior; and
(D) physical condition;
(2) interpretation of information obtained from the
patient and others, including other health care professionals; and
(3) collection, analysis, synthesis, and evaluation
of data about a patient.
Sec. 301.654. INDEPENDENT JUDGMENT. (a) A direct care
registered nurse shall exercise independent judgment in the best
interest of the patient.
(b) A direct care registered nurse may not allow a
commercial or revenue generation motive of the hospital or of a
person employing the direct care registered nurse to encumber the
independent judgment of the direct care registered nurse.
Sec. 301.655. CLINICAL SUPERVISION. (a) A direct care
registered nurse who assigns a nursing care task to another nurse or
to an unlicensed nursing staff member shall:
(1) ensure that the person to be assigned the task
possesses the necessary training, experience, and capability to
competently and safely perform the task to be assigned; and
(2) effectively supervise the clinical functions and
nursing care tasks performed by the person assigned the task.
(b) A direct care registered nurse shall provide clinical
supervision in the best interest of the patient and may not allow a
commercial or revenue generation motive of the hospital or a person
employing the direct care registered nurse to encumber the
performance of clinical supervision by the direct care registered
nurse.
Sec. 301.656. PATIENT CARE ASSIGNMENTS. (a) A direct
care registered nurse is always responsible for providing safe,
therapeutic, and competent nursing care to each patient assigned to
the direct care registered nurse.
(b) A direct care registered nurse may not accept a patient
assignment unless the direct care registered nurse reasonably
believes the direct care registered nurse has the knowledge,
judgment, skills, and ability necessary to provide the care
required by the patient. A direct care registered nurse may not
accept a patient in any clinical unit or with any diagnosis,
condition, prognosis, or other determinative characteristic of
nursing care for which the direct care registered nurse does not
reasonably believe the direct care registered nurse can provide
clinically competent nursing care.
(c) The refusal by a direct care registered nurse to accept
a patient care assignment under this section is an exercise of the
duty and right of patient advocacy under Section 301.356 and is
entitled to the protections provided by Section 301.357.
Sec. 301.657. ACCEPTANCE OF ORDERS. (a) Before
implementation, a direct care registered nurse must review each
order for patient care services, including an order for the
administration of medication, a therapeutic agent, treatment,
disease prevention, or rehabilitative regimen, to determine if the
order is:
(1) in the best interest of the patient;
(2) initiated by a person legally authorized to issue
the order; and
(3) in accordance with the law.
(b) If a direct care registered nurse determines that an
order does not meet the requirements of Subsection (a) or has doubt
regarding the meaning of the order or the conformance of the order
with the requirements of Subsection (a), the direct care registered
nurse shall seek clarification from the person who initiated the
order, the patient's physician, or another appropriate health care
professional. The direct care registered nurse may not implement
the order until the direct care registered nurse has obtained
clarification sufficient to determine that the order meets the
requirements of Subsection (a).
(c) If, after receiving clarification of an order under
Subsection (b), a direct care registered nurse continues to believe
that the requirements for implementation of the order under
Subsection (a) have not been satisfied, the direct care registered
nurse may refuse to implement the order on the basis that the order
is not in the best interest of the patient.
(d) A direct care registered nurse who seeks clarification
of an order under Subsection (b) or refuses to implement an order
under Subsection (c) is exercising the duty and right of patient
advocacy under Section 301.356 and is entitled to the protections
provided by Section 301.357.
Sec. 301.658. WHISTLE-BLOWER PROTECTION. (a) A direct
care registered nurse may report to the hospital, an outside
authority, or the public an action, policy, or condition created by
a hospital or other person in the health care industry that the
direct care registered nurse believes:
(1) violates the law;
(2) breaches professional ethics;
(3) impedes competent and safe nursing practice or
patient care;
(4) contributes to an adverse patient outcome or
incident;
(5) contributes to a sentinel or reportable event;
(6) is an issue that must be reported to satisfy the
direct care registered nurse's duty and right of patient advocacy
under Section 301.356; or
(7) is a valid argument in support of or against a
hospital policy or practice relating to the delivery of nursing
care.
(b) A person may not take an adverse personnel action or
discriminate against a direct care registered nurse who makes a
report authorized under Subsection (a).
(c) A direct care registered nurse who makes a report
authorized under Subsection (a) is exercising the duty and right of
patient advocacy under Section 301.356 and is entitled to the
protections provided by Section 301.357.
(d) This section does not authorize the disclosure of
confidential patient information, unless the disclosure is:
(1) consented to by the patient;
(2) required by law; or
(3) provided in confidence to a government,
regulatory, or accreditation agency as part of a complaint or
investigation.
Sec. 301.659. COLLECTIVE PATIENT ADVOCACY. (a) Direct
care registered nurses may work collectively to exercise the duty
and right of patient advocacy.
(b) In collectively exercising the duty and right of patient
advocacy, direct care registered nurses have the right to:
(1) self-organize;
(2) seek representation to engage in collective
bargaining with their hospital employer;
(3) seek any form of mutual aid or protection; and
(4) form, join, or participate in:
(A) an independent hospital-based professional
practice committee;
(B) a general or specialty registered nursing
professional association;
(C) a patient advocacy organization; or
(D) a labor organization.
(c) A direct care registered nurse who engages in patient
advocacy collectively with other direct care registered nurses is
exercising the duty and right of patient advocacy under Section
301.356 and is entitled to the protections provided by Section
301.357.
ARTICLE 4. OTHER AMENDMENTS TO OCCUPATIONS CODE
SECTION 4.01. Section 301.352, Occupations Code, is amended
by amending Subsections (a) and (a-1) and adding Subsection (e) to
read as follows:
(a) A person may not suspend, terminate, take an adverse
personnel action against, or otherwise discipline or discriminate
against a nurse who refuses to engage in an act or omission relating
to patient care if the nurse reasonably believes the act or omission
would:
(1) be harmful to the patient;
(2) not be in the best interest of the patient;
(3) constitute grounds for reporting the hospital to
the Department of State Health Services under Section 301.402; or
(4) violate any provision of this chapter or a board
rule [as provided by Subsection (a-1)].
(a-1) Subsection (a) applies only [A nurse may refuse to
engage in an act or omission relating to patient care that would
constitute grounds for reporting the nurse to the board under
Subchapter I, that constitutes a minor incident, or that violates
this chapter or a board rule] if the nurse notifies the person at
the time of the refusal of [that] the reason for refusing to engage
in [is that] the act or omission[:
[(1) constitutes grounds for reporting the nurse to
the board; or
[(2) is a violation of this chapter or a rule of the
board].
(e) A nurse who refuses to engage in an act or omission under
this section is exercising the duty and right of patient advocacy
under Section 301.356 and is entitled to the protections provided
by Section 301.357.
SECTION 4.02. Subchapter H, Chapter 301, Occupations Code,
is amended by adding Section 301.356 to read as follows:
Sec. 301.356. DUTY AND RIGHT OF PATIENT ADVOCACY. (a) A
nurse has the duty and the right to act as an advocate for each
patient assigned to the nurse.
(b) As circumstances require, a nurse shall:
(1) take action to improve the care provided to the
patient;
(2) try to change a decision or action that is not in
the best interest of the patient; and
(3) give the patient the opportunity to make an
informed decision about the care to be provided to the patient.
SECTION 4.03. Subchapter H, Chapter 301, Occupations Code,
is amended by adding Section 301.357 to read as follows:
Sec. 301.357. CAUSE OF ACTION FOR INTERFERENCE WITH PATIENT
ADVOCACY. (a) A person may not take an adverse personnel action or
discriminate against a nurse who exercises the duty and right of
patient advocacy under Section 301.356.
(b) A nurse may bring a cause of action against a person who
violates Subsection (a) to recover:
(1) the greater of:
(A) the actual damages incurred by the nurse,
including damages for mental anguish regardless of whether other
injury is shown; or
(B) $10,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(c) In addition to the amount recovered under Subsection
(b), a nurse whose employment is suspended or terminated in
violation of Subsection (a) is entitled to:
(1) reinstatement in the nurse's former position, or
severance pay in an amount equal to three months of the nurse's most
recent salary; and
(2) compensation for wages lost during the period of
suspension or termination.
(d) A nurse who brings an action under this section has the
burden of proving that:
(1) the nurse engaged in an act or omission that
constituted an exercise of the duty and right of patient advocacy;
and
(2) the nurse's exercise of the duty and right of
patient advocacy was a substantial factor in the person's decision
to take an adverse personnel action or discriminate against the
nurse.
(e) There is a rebuttable presumption that a nurse's
exercise of the duty and right of patient advocacy was a substantial
factor in a person's decision to take an adverse personnel action or
discriminate against the nurse if the person took the adverse
personnel action or discriminated against the nurse on or before
the 60th day after the date the nurse engaged in the act or omission
constituting an exercise of the duty and right of patient advocacy.
(f) An action under this section may be brought in the
district court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) any defendant conducts business.
SECTION 4.04. Subchapter H, Chapter 301, Occupations Code,
is amended by adding Section 301.358 to read as follows:
Sec. 301.358. FIDUCIARY DUTY. (a) A nurse owes a fiduciary
duty to each patient assigned to the nurse to act exclusively in the
best interest of the patient. A nurse may not be influenced in the
provision of nursing care to the patient by:
(1) the nurse's own interests;
(2) the interests of any third party;
(3) the directives of any interested third party; or
(4) any motive other than the nurse's responsibility
to provide safe and competent nursing care in the best interest and
for the benefit of the patient.
(b) A nurse may refuse to engage in conduct that violates
the nurse's fiduciary duty to a patient. A nurse who refuses to
engage in conduct that violates the fiduciary duty owed to a patient
is exercising the duty and right of patient advocacy under Section
301.356 and is entitled to the protections provided by Section
301.357.
SECTION 4.05. Sections 301.402(b) and (d), Occupations
Code, are amended to read as follows:
(b) A nurse who provides or supervises the care of a patient
in a hospital shall report to the Department of State Health
Services [board] in the manner prescribed under Subsection (d) when
[if] the nurse has reasonable cause to suspect that the hospital has
policies or is engaging in practices that:
(1) interfere with the ability of a nurse to perform
the duties of professional nursing [another nurse has engaged in
conduct subject to reporting]; [or]
(2) discourage a nurse through intimidation or
coercion from exercising the duty and right of patient advocacy
under Section 301.356;
(3) violate a standard of safe, competent, and
therapeutic nursing care established by law; or
(4) expose a patient to a substantial risk of harm [the
ability of a nursing student to perform the services of the nursing
profession would be, or would reasonably be expected to be,
impaired by chemical dependency].
(d) A report by a nurse under Subsection (b) must:
(1) be written and signed; and
(2) include the following information:
(A) the name and address of the hospital;
(B) the name of the most senior manager of the
hospital;
(C) the name of the chief nursing officer;
(D) a description of the policy or practice the
nurse is reporting; [identity of the nurse or student] and
(E) any additional information required by the
board.
SECTION 4.06. Section 301.411(a), Occupations Code, is
amended to read as follows:
(a) A nurse [person] is not liable in a civil action for
failure to file a report required by this subchapter.
SECTION 4.07. Section 301.412, Occupations Code, is amended
to read as follows:
Sec. 301.412. REPORTING IMMUNITY. A nurse [person] who[,
without malice,] makes a report required or authorized, or
reasonably believed to be required or authorized, under this
subchapter and a person who provides records, information, or
assistance to the nurse making the report:
(1) is immune from civil liability based on:
(A) the act of making the report; and
(B) the contents of the report; and
(2) may not be subjected to other retaliatory action
as a result of making the report.
SECTION 4.08. Section 301.413, Occupations Code, is amended
by amending Subsections (a) through (e) and adding Subsection (b-1)
to read as follows:
(a) A person named as a defendant in a civil action or
subjected to other retaliatory action as a result of making
[filing] a report or providing records, information, or assistance
in support of a report required, authorized, or reasonably believed
to be required or authorized under this subchapter [as a result of
refusing to engage in conduct as authorized by Section 301.352, or
as a result of requesting in good faith a nursing peer review
determination under Section 303.005,] may file a counterclaim in
the pending action or prove a cause of action in a subsequent suit
to recover defense costs, including reasonable attorney's fees and
actual and punitive damages, if the suit or retaliatory action is
determined to be frivolous, unreasonable, or taken in bad faith.
(b) A person may not suspend or terminate the employment of,
or otherwise discipline or discriminate against, a nurse [person]
who[:
[(1)] reports, without malice, under this
subchapter[; or
[(2) requests, in good faith, a nursing peer review
determination under Section 303.005].
(b-1) A nurse reports with malice under Subsection (b) if,
at the time the nurse makes the report, the nurse:
(1) knows the report is false; or
(2) has serious doubts about whether the report is
true.
(c) A nurse [person] who reports under this subchapter[,
refuses to engage in conduct as authorized by Section 301.352, or
requests a nursing peer review determination under Section 303.005]
has a cause of action against a person who violates Subsection (b),
and may recover:
(1) the greater of:
(A) actual damages, including damages for mental
anguish even if no other injury is shown; or
(B) $5,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(d) In addition to the amount recovered under Subsection
(c), a nurse [person] whose employment is suspended or terminated
in violation of this section is entitled to:
(1) reinstatement in the nurse's [employee's] former
position or severance pay in an amount equal to three months of the
nurse's [employee's] most recent salary; and
(2) compensation for wages lost during the period of
suspension or termination.
(e) A nurse [person] who brings an action under this section
has the burden of proof. It is a rebuttable presumption that the
nurse's [person's] employment was suspended or terminated for
reporting under this subchapter[, for refusing to engage in conduct
as authorized by Section 301.352, or for requesting a peer review
committee determination under Section 303.005] if:
(1) the nurse [person] was suspended or terminated
within 60 days after the date the report[, refusal, or request] was
made; and
(2) the board, the commissioner of the Department of
State Health Services, or a court determines that[:
[(A)] the report that is the subject of the cause
of action was[:
[(i)] authorized or required under Section
301.402[, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
301.409, or 301.410; and
[(ii) made without malice;
[(B) the request for a peer review committee
determination that is the subject of the cause of action was:
[(i) authorized under Section 303.005; and
[(ii) made in good faith; or
[(C) the refusal to engage in conduct was
authorized by Section 301.352].
SECTION 4.09. Section 301.452(b), Occupations Code, is
amended to read as follows:
(b) A person is subject to denial of a license or to
disciplinary action under this subchapter for:
(1) a violation of this chapter, a rule or regulation
not inconsistent with this chapter, or an order issued under this
chapter;
(2) fraud or deceit in procuring or attempting to
procure a license to practice professional nursing or vocational
nursing;
(3) a conviction for, or placement on deferred
adjudication community supervision or deferred disposition for, a
felony or for a misdemeanor involving moral turpitude;
(4) conduct that results in the revocation of
probation imposed because of conviction for a felony or for a
misdemeanor involving moral turpitude;
(5) use of a nursing license, diploma, or permit, or
the transcript of such a document, that has been fraudulently
purchased, issued, counterfeited, or materially altered;
(6) impersonating or acting as a proxy for another
person in the licensing examination required under Section 301.253
or 301.255;
(7) directly or indirectly aiding or abetting an
unlicensed person in connection with the unauthorized practice of
nursing;
(8) revocation, suspension, or denial of, or any other
action relating to, the person's license or privilege to practice
nursing in another jurisdiction;
(9) intemperate use of alcohol or drugs that the board
determines endangers or could endanger a patient;
(10) unprofessional or dishonorable conduct that, in
the board's opinion, is likely to deceive, defraud, or injure a
patient or the public;
(11) adjudication of mental incompetency;
(12) lack of fitness to practice because of a mental or
physical health condition that could result in injury to a patient
or the public; [or]
(13) failure to care adequately for a patient or to
conform to the minimum standards of acceptable nursing practice in
a manner that, in the board's opinion, exposes a patient or other
person unnecessarily to risk of harm; or
(14) failure to take an action that is reasonable for
the nurse to take considering the nurse's position in the hospital
to correct a policy or practice in the administration of nursing
care in the hospital that:
(A) does not conform to a reasonable minimum
standard of nursing practice and safe patient care;
(B) violates a law or accreditation standard; or
(C) exposes a patient to a substantial risk of
harm.
SECTION 4.10. The following sections of the Occupations
Code are repealed:
(1) Sections 301.352(b) and (f);
(2) Section 301.401;
(3) Sections 301.402(e) and (f);
(4) Section 301.4025;
(5) Section 301.403;
(6) Section 301.404;
(7) Section 301.405;
(8) Section 301.406;
(9) Section 301.407;
(10) Section 301.408;
(11) Section 301.409;
(12) Section 301.410;
(13) Section 301.4105;
(14) Section 301.4106;
(15) Section 301.411(b);
(16) Section 301.414;
(17) Section 301.415;
(18) Section 301.416;
(19) Section 301.417;
(20) Section 301.418; and
(21) Section 301.419.
SECTION 4.11. Chapter 303, Occupations Code, is repealed.
ARTICLE 5. CONFORMING AMENDMENTS
SECTION 5.01. Section 103.003(b), Labor Code, is amended to
read as follows:
(b) An employer may not disclose information about a
licensed nurse or licensed vocational nurse that relates to conduct
that is protected under Section 301.352 [or 303.005], Occupations
Code. The employer must provide an affected nurse an opportunity to
submit a statement of reasonable length to the employer to
establish the application of Section 301.352 [or 303.005],
Occupations Code.
SECTION 5.02. Section 301.002(1-b), Occupations Code, is
amended to read as follows:
(1-b) "Patient safety committee" means a committee
established by an association, school, agency, health care
facility, or other organization to address issues relating to
patient safety, including:
(A) the entity's medical staff composed of
individuals licensed under Subtitle B; or
(B) a medical committee under Subchapter D,
Chapter 161, Health and Safety Code [has the meaning assigned by
Section 303.001].
SECTION 5.03. Section 301.160(i), Occupations Code, is
amended to read as follows:
(i) Except as provided by this subsection, in developing or
approving a pilot program under this section the board may exempt
the program from rules adopted under this chapter. [Subchapter I
and Chapter 303 apply to pilot programs, except that Sections
303.002(e), 303.003, and 303.008(b) do not apply to a pilot program
using proactive peer review. The board may establish alternative
criteria for nursing peer review committees conducting proactive
peer review.]
SECTION 5.04. Section 301.1605(c), Occupations Code, is
amended to read as follows:
(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 5.05. Section 301.1606(b), Occupations Code, is
amended to read as follows:
(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).
ARTICLE 6. EFFECTIVE DATE
SECTION 6.01. (a) Except as provided by Subsections (b) and
(c) of this section, this Act takes effect September 1, 2009.
(b) Section 241.254, Health and Safety Code, as added by
this Act, takes effect January 1, 2010.
(c) Sections 241.256(a), 241.257, 241.258, 241.259, and
241.260, Health and Safety Code, as added by this Act, take effect
March 1, 2010.