Texas 2009 - 81st Regular

Texas Senate Bill SB1880 Compare Versions

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1	1	By: Nelson S.B. No. 1880
2	2	(In the Senate - Filed March 11, 2009; March 24, 2009, read
3	3	first time and referred to Committee on Health and Human Services;
4	4	April 17, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 9, Nays 0; April 17, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1880 By: Nelson
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the regulation of nursing.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Subdivision (2), Subsection (a), Section
15	15	301.160, Occupations Code, is amended to read as follows:
16	16	(2) "Targeted continuing nursing education" means
17	17	continuing education focusing on a skill that would likely benefit
18	18	a significant proportion of [registered] nurses in a particular
19	19	practice area.
20	20	SECTION 2. Subsections (b) and (j), Section 301.160,
21	21	Occupations Code, are amended to read as follows:
22	22	(b) The board may develop pilot programs to evaluate the
23	23	effectiveness of mechanisms, including proactive nursing peer
24	24	review and targeted continuing nursing education, for maintenance
25	25	of the clinical competency of a [registered] nurse in the nurse's
26	26	area of practice and the understanding by [registered] nurses of
27	27	the laws, including regulations, governing the practice of
28	28	[professional] nursing.
29	29	(j) The board shall issue an annual report regarding any
30	30	pilot programs developed or approved and a status report on those
31	31	programs, including preliminary or final findings concerning their
32	32	effectiveness. The board shall mail the report to statewide
33	33	associations of [registered] nurses and[, registered nurse]
34	34	educators[,] and employers of [registered] nurses that request a
35	35	copy. [The board shall issue a final report not later than
36	36	September 1, 2000.]
37	37	SECTION 3. Subsections (a) and (c), Section 301.1605,
38	38	Occupations Code, are amended to read as follows:
39	39	(a) The board may approve and adopt rules regarding pilot
40	40	programs for innovative applications in the practice and regulation
41	41	of [professional] nursing.
42	42	(c) In approving a pilot program, the board may grant the
43	43	program an exception to the mandatory reporting requirements of
44	44	Sections 301.401-301.409 or to a rule adopted under this chapter or
45	45	Chapter 303 that relates to the practice of [professional] nursing,
46	46	including education and reporting requirements for [registered]
47	47	nurses. The board may not grant an exception to:
48	48	(1) the education requirements of this chapter unless
49	49	the program includes alternate but substantially equivalent
50	50	requirements; or
51	51	(2) the mandatory reporting requirements unless the
52	52	program:
53	53	(A) is designed to evaluate the efficiency of
54	54	alternative reporting methods; and
55	55	(B) provides consumers adequate protection from
56	56	[registered] nurses whose continued practice is a threat to public
57	57	safety.
58	58	SECTION 4. Subsections (a) and (b), Section 301.1606,
59	59	Occupations Code, are amended to read as follows:
60	60	(a) The [Before January 1, 2004, the] board may [shall]
61	61	solicit proposals for pilot programs designed to evaluate the
62	62	efficacy and effect on protection of the public of reporting
63	63	systems designed to encourage identification of system errors.
64	64	(b) The board may grant a pilot program approved under this
65	65	section an exception to the mandatory reporting requirements of
66	66	Sections 301.401-301.409 or to a rule adopted under this chapter or
67	67	Chapter 303 that relates to the practice of [professional] nursing,
68	68	including education and reporting requirements for [registered]
69	69	nurses. If the board grants an exception, the board may require
70	70	that the program:
71	71	(1) provide for the remediation of the deficiencies of
72	72	a [registered] nurse who has knowledge or skill deficiencies that
73	73	unless corrected may result in an unreasonable risk to public
74	74	safety;
75	75	(2) provide for supervision of the nurse during
76	76	remediation of deficiencies under Subdivision (1);
77	77	(3) require reporting to the board of a [registered]
78	78	nurse:
79	79	(A) who fails to satisfactorily complete
80	80	remediation, or who does not make satisfactory progress in
81	81	remediation, under Subdivision (1);
82	82	(B) whose incompetence in the practice of
83	83	[professional] nursing would pose a continued risk of harm to the
84	84	public; or
85	85	(C) whose error contributed to a patient death or
86	86	serious patient injury; or
87	87	(4) provide for a nursing peer review committee to
88	88	review whether a [registered] nurse is appropriate for remediation
89	89	under Subdivision (1).
90	90	SECTION 5. Subchapter E, Chapter 301, Occupations Code, is
91	91	amended by adding Sections 301.206 and 301.207 to read as follows:
92	92	Sec. 301.206. CONFIDENTIALITY OF INFORMATION COLLECTED FOR
93	93	EMERGENCY RELIEF PROGRAMS. (a) In this section, "emergency relief
94	94	program" means a program operated or sponsored by the federal
95	95	government, the state, or a nonprofit organization to provide
96	96	nurses to assist in providing health care to victims or potential
97	97	victims of a disaster or state or local emergency.
98	98	(b) A nurse's personal contact information, including
99	99	e-mail addresses, telephone numbers, and fax numbers, collected by
100	100	the board for use by an emergency relief program is:
101	101	(1) confidential and not subject to disclosure under
102	102	Chapter 552, Government Code; and
103	103	(2) not subject to disclosure, discovery, subpoena, or
104	104	other means of legal compulsion for release to anyone other than for
105	105	the purpose of contacting the nurse to assist in an emergency relief
106	106	program.
107	107	Sec. 301.207. CONFIDENTIALITY OF HEALTH INFORMATION
108	108	PROVIDED FOR LICENSURE. Information regarding a person's diagnosis
109	109	or treatment for a physical condition, mental condition, or
110	110	chemical dependency that the person submits to the board for a
111	111	petition for a declaratory order of eligibility for a license or for
112	112	an application for an initial license or a license renewal under
113	113	this chapter is confidential to the same extent information
114	114	collected on a nurse as part of an investigation of a complaint is
115	115	confidential under Section 301.466.
116	116	SECTION 6. Subsection (a), Section 301.257, Occupations
117	117	Code, is amended to read as follows:
118	118	(a) A person may petition the board for a declaratory order
119	119	as to the person's eligibility for a license under this chapter if
120	120	the person has reason to believe that the person is ineligible for
121	121	the license and:
122	122	(1) is enrolled or planning to enroll in an
123	123	educational program that prepares a person for an initial license
124	124	as a registered nurse or vocational nurse; or [and]
125	125	(2) is an applicant for a [has reason to believe that
126	126	the person is ineligible for the] license.
127	127	SECTION 7. Subdivision (2), Section 301.401, Occupations
128	128	Code, is amended to read as follows:
129	129	(2) "Minor incident" means conduct by a nurse that
130	130	does not indicate that the nurse's continued practice poses a risk
131	131	of harm to a patient or another person. This term is synonymous
132	132	with "minor error" or "minor violation of this chapter or board
133	133	rule."
134	134	SECTION 8. Subchapter J, Chapter 301, Occupations Code, is
135	135	amended by adding Section 301.4521 to read as follows:
136	136	Sec. 301.4521. PHYSICAL AND PSYCHOLOGICAL EVALUATION.
137	137	(a) In this section:
138	138	(1) "Applicant" means:
139	139	(A) a petitioner for a declaratory order of
140	140	eligibility for a license; or
141	141	(B) an applicant for an initial license or
142	142	renewal of a license.
143	143	(2) "Evaluation" means a physical or psychological
144	144	evaluation conducted to determine a person's fitness to practice
145	145	nursing.
146	146	(b) The board may require a nurse or applicant to submit to
147	147	an evaluation only if the board has probable cause to believe that
148	148	the nurse or applicant is unable to practice nursing with
149	149	reasonable skill and safety to patients because of:
150	150	(1) physical impairment;
151	151	(2) mental impairment; or
152	152	(3) chemical dependency or abuse of drugs or alcohol.
153	153	(c) A demand for an evaluation under Subsection (b) must be
154	154	in writing and state:
155	155	(1) the reasons probable cause exists to require the
156	156	evaluation; and
157	157	(2) that refusal by the nurse or applicant to submit to
158	158	the evaluation will result in an administrative hearing to be held
159	159	to make a final determination of whether probable cause for the
160	160	evaluation exists.
161	161	(d) If the nurse or applicant refuses to submit to the
162	162	evaluation, the board shall schedule a hearing on the issue of
163	163	probable cause to be conducted by the State Office of
164	164	Administrative Hearings. The nurse or applicant must be notified
165	165	of the hearing by personal service or certified mail. The hearing
166	166	is limited to the issue of whether the board had probable cause to
167	167	require an evaluation. The nurse or applicant may present
168	168	testimony and other evidence at the hearing to show why the nurse or
169	169	applicant should not be required to submit to the evaluation. The
170	170	board has the burden of proving that probable cause exists. At the
171	171	conclusion of the hearing, the hearing officer shall enter an order
172	172	requiring the nurse or applicant to submit to the evaluation or an
173	173	order rescinding the board's demand for an evaluation. The order
174	174	may not be vacated or modified under Section 2001.058, Government
175	175	Code.
176	176	(e) If a nurse or applicant refuses to submit to an
177	177	evaluation after an order requiring the evaluation is entered under
178	178	Subsection (d), the board may:
179	179	(1) refuse to issue or renew a license;
180	180	(2) suspend a license; or
181	181	(3) issue an order limiting the license.
182	182	(f) The board may request a nurse or applicant to consent to
183	183	an evaluation by a practitioner approved by the board for a reason
184	184	other than a reason listed in Subsection (b). A request for an
185	185	evaluation under this subsection must be in writing and state:
186	186	(1) the reasons for the request;
187	187	(2) the type of evaluation requested;
188	188	(3) how the board may use the evaluation;
189	189	(4) that the nurse or applicant may refuse to submit to
190	190	an evaluation; and
191	191	(5) the procedures for submitting an evaluation as
192	192	evidence in any hearing regarding the issuance or renewal of the
193	193	nurse's or applicant's license.
194	194	(g) If a nurse or applicant refuses to consent to an
195	195	evaluation under Subsection (f), the nurse or applicant may not
196	196	introduce an evaluation into evidence at a hearing to determine the
197	197	nurse's or applicant's right to be issued or retain a nursing
198	198	license unless the nurse or applicant:
199	199	(1) not later than the 30th day before the date of the
200	200	hearing, notifies the board that an evaluation will be introduced
201	201	into evidence at the hearing;
202	202	(2) provides the board the results of that evaluation;
203	203	(3) informs the board of any other evaluations by any
204	204	other practitioners; and
205	205	(4) consents to an evaluation by a practitioner that
206	206	meets board standards established under Subsection (h).
207	207	(h) The board shall establish by rule the qualifications for
208	208	a licensed practitioner to conduct an evaluation under this
209	209	section. The board shall maintain a list of qualified
210	210	practitioners. The board may solicit qualified practitioners
211	211	located throughout the state to be on the list.
212	212	(i) A nurse or applicant shall pay the costs of an
213	213	evaluation conducted under this section.
214	214	(j) The results of an evaluation under this section are:
215	215	(1) confidential and not subject to disclosure under
216	216	Chapter 552, Government Code; and
217	217	(2) not subject to disclosure by discovery, subpoena,
218	218	or other means of legal compulsion for release to anyone, except
219	219	that the results may be:
220	220	(A) introduced as evidence in a proceeding before
221	221	the board or a hearing conducted by the State Office of
222	222	Administrative Hearings under this chapter; or
223	223	(B) included in the findings of fact and
224	224	conclusions of law in a final board order.
225	225	(k) If the board determines there is insufficient evidence
226	226	to bring action against a person based on the results of any
227	227	evaluation under this section, the evaluation must be expunged from
228	228	the board's records.
229	229	(l) The board shall adopt guidelines for requiring or
230	230	requesting a nurse or applicant to submit to an evaluation under
231	231	this section.
232	232	(m) The authority granted to the board under this section is
233	233	in addition to the board's authority to make licensing decisions
234	234	under this chapter.
235	235	SECTION 9. Subsections (a) and (b), Section 301.453,
236	236	Occupations Code, are amended to read as follows:
237	237	(a) If the board determines that a person has committed an
238	238	act listed in Section 301.452(b), the board shall enter an order
239	239	imposing one or more of the following:
240	240	(1) denial of the person's application for a license,
241	241	license renewal, or temporary permit;
242	242	(2) issuance of a written warning;
243	243	(3) administration of a public reprimand;
244	244	(4) limitation or restriction of the person's license,
245	245	including:
246	246	(A) limiting to or excluding from the person's
247	247	practice one or more specified activities of nursing; or
248	248	(B) stipulating periodic board review;
249	249	(5) suspension of the person's license [for a period
250	250	not to exceed five years];
251	251	(6) revocation of the person's license; or
252	252	(7) assessment of a fine.
253	253	(b) In addition to or instead of an action under Subsection
254	254	(a), the board, by order, may require the person to:
255	255	(1) submit to care, counseling, or treatment by a
256	256	health provider designated by the board as a condition for the
257	257	issuance or renewal of a license;
258	258	(2) participate in a program of education or
259	259	counseling prescribed by the board, including a program of remedial
260	260	education;
261	261	(3) practice for a specified period under the
262	262	direction of a registered nurse or vocational nurse designated by
263	263	the board; or
264	264	(4) perform public service the board considers
265	265	appropriate.
266	266	SECTION 10. Section 301.4535, Occupations Code, is amended
267	267	by adding Subsection (a-1) and amending Subsection (b) to read as
268	268	follows:
269	269	(a-1) An applicant or nurse who is refused an initial
270	270	license or renewal of a license or whose license is suspended under
271	271	Subsection (a) is not eligible for a probationary, stipulated, or
272	272	otherwise encumbered license unless the board establishes by rule
273	273	criteria that would permit the issuance or renewal of the license.
274	274	(b) On final conviction or a plea of guilty or nolo
275	275	contendere for an offense listed in Subsection (a), the board, as
276	276	appropriate, may not issue a license to an applicant, shall refuse
277	277	to renew a license, or shall revoke a license [if the applicant or
278	278	license holder did not previously disclose the conviction or plea
279	279	and the fifth anniversary of the date the person successfully
280	280	completed community supervision or parole has not occurred].
281	281	SECTION 11. Subchapter J, Chapter 301, Occupations Code, is
282	282	amended by adding Section 301.4551 to read as follows:
283	283	Sec. 301.4551. TEMPORARY LICENSE SUSPENSION FOR DRUG OR
284	284	ALCOHOL USE. The board shall temporarily suspend the license of a
285	285	nurse as provided by Section 301.455 if the nurse is under a board
286	286	order prohibiting the use of alcohol or a drug or requiring the
287	287	nurse to participate in a peer assistance program, and the nurse:
288	288	(1) tests positive for alcohol or a prohibited drug;
289	289	(2) refuses to comply with a board order to submit to a
290	290	drug or alcohol test; or
291	291	(3) fails to participate in the peer assistance
292	292	program and the program issues a letter of dismissal and referral to
293	293	the board for noncompliance.
294	294	SECTION 12. Section 301.458, Occupations Code, is amended
295	295	by amending Subsection (b) and adding Subsections (e), (f), and (g)
296	296	to read as follows:
297	297	(b) A formal charge must:
298	298	(1) be written;
299	299	(2) be specific enough to enable a person of common
300	300	understanding to know what is meant by the formal charge; [and]
301	301	(3) contain a degree of certainty that gives the
302	302	person who is the subject of the formal charge notice of each
303	303	particular act alleged to violate a specific statute, board rule,
304	304	or board order; and
305	305	(4) identify each factual allegation required to be
306	306	specifically admitted or denied.
307	307	(e) In responding to a formal charge, the nurse who is the
308	308	subject of the charge may not generally deny the factual
309	309	allegations. The nurse must:
310	310	(1) state in short and plain terms the nurse's defenses
311	311	to each factual allegation in the charge; and
312	312	(2) specifically admit or deny each factual allegation
313	313	in the charge.
314	314	(f) A denial of a factual allegation must fairly respond to
315	315	the substance of the allegation. A nurse who intends in good faith
316	316	to deny only part of an allegation must admit the part that is true
317	317	and deny the rest. If the nurse states the nurse is without
318	318	knowledge or information sufficient to form a belief about the
319	319	truth of a factual allegation, the statement has the effect of a
320	320	denial. If a factual allegation to which a response is required is
321	321	not denied as provided by this section, the allegation is
322	322	considered to be admitted.
323	323	(g) A defense under Subsection (e) is an alternate set of
324	324	facts or explanation of the facts alleged by the board that, if
325	325	true, disproves the facts alleged by the board in the charge.
326	326	SECTION 13. Section 301.468, Occupations Code, is amended
327	327	by amending Subsection (a) and adding Subsections (e) and (f) to
328	328	read as follows:
329	329	(a) The board may determine that an order denying a license
330	330	application or suspending a license be probated. A person subject
331	331	to a probation order shall conform to each condition the board sets
332	332	as the terms of probation, including a condition:
333	333	(1) limiting the practice of the person to, or
334	334	excluding, one or more specified activities of professional nursing
335	335	or vocational nursing; [or]
336	336	(2) requiring the person to submit to supervision,
337	337	care, counseling, or treatment by a practitioner designated by the
338	338	board; or
339	339	(3) requiring the person to submit to random drug or
340	340	alcohol tests in the manner prescribed by the board.
341	341	(e) A hearing under this section is limited to a
342	342	determination of whether the person violated the terms of the
343	343	probation order under Subsection (a) and whether the board should:
344	344	(1) continue, rescind, or modify the terms of
345	345	probation, including imposing an administrative penalty; or
346	346	(2) enter an order denying, suspending, or revoking
347	347	the person's license.
348	348	(f) If one of the conditions of probation is the prohibition
349	349	of using alcohol or a drug or participation in a peer assistance
350	350	program, violation of that condition is established by:
351	351	(1) a positive drug or alcohol test result;
352	352	(2) refusal to submit to a drug or alcohol test as
353	353	required by the board; or
354	354	(3) a letter of noncompliance from the peer assistance
355	355	program.
356	356	SECTION 14. Subsection (b), Section 301.202, Occupations
357	357	Code, is repealed.
358	358	SECTION 15. (a) The change in law made by Section
359	359	301.4521, Occupations Code, as added by this Act, applies only to an
360	360	application filed with the Texas Board of Nursing on or after the
361	361	effective date of this Act. An application filed before the
362	362	effective date of this Act is covered by the law in effect when the
363	363	application was filed, and the former law is continued in effect for
364	364	that purpose.
365	365	(b) The changes in law made by Section 301.4551, Occupations
366	366	Code, as added by this Act, and Section 301.468, Occupations Code,
367	367	as amended by this Act, apply only to a violation of an order issued
368	368	by the Texas Board of Nursing on or after the effective date of this
369	369	Act. A violation of an order issued by the Texas Board of Nursing
370	370	before the effective date of this Act is covered by the law in
371	371	effect when the order was issued, and the former law is continued in
372	372	effect for that purpose.
373	373	(c) The change in law made by Section 301.458, Occupations
374	374	Code, as amended by this Act, applies only to a formal charge filed
375	375	on or after the effective date of this Act. A formal charge filed
376	376	before the effective date of this Act is covered by the law in
377	377	effect when the charge was filed, and the former law is continued in
378	378	effect for that purpose.
379	379	SECTION 16. This Act takes effect immediately if it
380	380	receives a vote of two-thirds of all the members elected to each
381	381	house, as provided by Section 39, Article III, Texas Constitution.
382	382	If this Act does not receive the vote necessary for immediate
383	383	effect, this Act takes effect September 1, 2009.
384	384	* * * * *