Texas 2009 - 81st Regular

Texas Senate Bill SB476 Compare Versions

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1	1	S.B. No. 476
2	2
3	3
4	4	AN ACT
5	5	relating to staffing, overtime, and other employment protections
6	6	for nurses.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
9	9	amended by adding Chapters 257 and 258 to read as follows:
10	10	CHAPTER 257. NURSE STAFFING
11	11	Sec. 257.001. DEFINITIONS. In this chapter:
12	12	(1) "Committee" means a nurse staffing committee
13	13	required by this chapter.
14	14	(2) "Department" means the Department of State Health
15	15	Services.
16	16	(3) "Hospital" means:
17	17	(A) a general hospital or special hospital, as
18	18	those terms are defined by Section 241.003, including a hospital
19	19	maintained or operated by this state; or
20	20	(B) a mental hospital licensed under Chapter 577.
21	21	(4) "Patient care unit" means a unit or area of a
22	22	hospital in which registered nurses provide patient care.
23	23	Sec. 257.002. LEGISLATIVE FINDINGS. (a) The legislature
24	24	finds that:
25	25	(1) research supports a conclusion that adequate nurse
26	26	staffing is directly related to positive patient outcomes and nurse
27	27	satisfaction with the practice environment;
28	28	(2) nurse satisfaction with the practice environment
29	29	is in large measure determined by providing an adequate level of
30	30	nurse staffing based on research findings and patient intensity;
31	31	(3) nurse satisfaction and patient safety can be
32	32	adversely affected when nurses work excessive hours; and
33	33	(4) hospitals and nurses share a mutual interest in
34	34	patient safety initiatives that create a healthy environment for
35	35	nurses and appropriate care for patients.
36	36	(b) In order to protect patients, support greater retention
37	37	of registered nurses, and promote adequate nurse staffing, the
38	38	legislature intends to establish a mechanism whereby nurses and
39	39	hospital management shall participate in a joint process regarding
40	40	decisions about nurse staffing.
41	41	Sec. 257.003. NURSE STAFFING POLICY AND PLAN. (a) The
42	42	governing body of a hospital shall adopt, implement, and enforce a
43	43	written nurse staffing policy to ensure that an adequate number and
44	44	skill mix of nurses are available to meet the level of patient care
45	45	needed. The policy must include a process for:
46	46	(1) requiring the hospital to give significant
47	47	consideration to the nurse staffing plan recommended by the
48	48	hospital's nurse staffing committee and to that committee's
49	49	evaluation of any existing plan;
50	50	(2) adopting, implementing, and enforcing an official
51	51	nurse services staffing plan that is based on the needs of each
52	52	patient care unit and shift and on evidence relating to patient care
53	53	needs;
54	54	(3) using the official nurse services staffing plan as
55	55	a component in setting the nurse staffing budget;
56	56	(4) encouraging nurses to provide input to the
57	57	committee relating to nurse staffing concerns;
58	58	(5) protecting from retaliation nurses who provide
59	59	input to the committee; and
60	60	(6) ensuring compliance with rules adopted by the
61	61	executive commissioner of the Health and Human Services Commission
62	62	relating to nurse staffing.
63	63	(b) The official nurse services staffing plan adopted under
64	64	Subsection (a) must:
65	65	(1) reflect current standards established by private
66	66	accreditation organizations, governmental entities, national
67	67	nursing professional associations, and other health professional
68	68	organizations;
69	69	(2) set minimum staffing levels for patient care units
70	70	that are:
71	71	(A) based on multiple nurse and patient
72	72	considerations; and
73	73	(B) determined by the nursing assessment and in
74	74	accordance with evidence-based safe nursing standards;
75	75	(3) include a method for adjusting the staffing plan
76	76	for each patient care unit to provide staffing flexibility to meet
77	77	patient needs; and
78	78	(4) include a contingency plan when patient care needs
79	79	unexpectedly exceed direct patient care staff resources.
80	80	(c) The hospital shall:
81	81	(1) use the official nurse services staffing plan:
82	82	(A) as a component in setting the nurse staffing
83	83	budget; and
84	84	(B) to guide the hospital in assigning nurses
85	85	hospital-wide; and
86	86	(2) make readily available to nurses on each patient
87	87	care unit at the beginning of each shift the official nurse services
88	88	staffing plan levels and current staffing levels for that unit and
89	89	that shift.
90	90	Sec. 257.004. NURSE STAFFING COMMITTEE. (a) A hospital
91	91	shall establish a nurse staffing committee as a standing committee
92	92	of the hospital.
93	93	(b) The committee shall be composed of members who are
94	94	representative of the types of nursing services provided in the
95	95	hospital.
96	96	(c) The chief nursing officer of the hospital is a voting
97	97	member of the committee.
98	98	(d) At least 60 percent of the members of the committee must
99	99	be registered nurses who:
100	100	(1) provide direct patient care during at least 50
101	101	percent of their work time; and
102	102	(2) are selected by their peers who provide direct
103	103	patient care during at least 50 percent of their work time.
104	104	(e) The committee shall meet at least quarterly.
105	105	(f) Participation on the committee by a hospital employee as
106	106	a committee member is part of the employee's work time, and the
107	107	hospital shall compensate that member for that time accordingly.
108	108	The hospital shall relieve a committee member of other work duties
109	109	during committee meetings.
110	110	(g) The committee shall:
111	111	(1) develop and recommend to the hospital's governing
112	112	body a nurse staffing plan that meets the requirements of Section
113	113	257.003;
114	114	(2) review, assess, and respond to staffing concerns
115	115	expressed to the committee;
116	116	(3) identify the nurse-sensitive outcome measures the
117	117	committee will use to evaluate the effectiveness of the official
118	118	nurse services staffing plan;
119	119	(4) evaluate, at least semiannually, the
120	120	effectiveness of the official nurse services staffing plan and
121	121	variations between the plan and the actual staffing; and
122	122	(5) submit to the hospital's governing body, at least
123	123	semiannually, a report on nurse staffing and patient care outcomes,
124	124	including the committee's evaluation of the effectiveness of the
125	125	official nurse services staffing plan and aggregate variations
126	126	between the staffing plan and actual staffing.
127	127	(h) In evaluating the effectiveness of the official nurse
128	128	services staffing plan, the committee shall consider patient needs,
129	129	nursing-sensitive quality indicators, nurse satisfaction measures
130	130	collected by the hospital, and evidence-based nurse staffing
131	131	standards.
132	132	Sec. 257.005. REPORTING OF STAFFING INFORMATION TO
133	133	DEPARTMENT. (a) A hospital shall annually report to the
134	134	department on:
135	135	(1) whether the hospital's governing body has adopted
136	136	a nurse staffing policy as required by Section 257.003;
137	137	(2) whether the hospital has established a nurse
138	138	staffing committee as required by Section 257.004 that meets the
139	139	membership requirements of that section;
140	140	(3) whether the nurse staffing committee has evaluated
141	141	the hospital's official nurse services staffing plan as required by
142	142	Section 257.004 and has reported the results of the evaluation to
143	143	the hospital's governing body as provided by that section; and
144	144	(4) the nurse-sensitive outcome measures the
145	145	committee adopted for use in evaluating the hospital's official
146	146	nurse services staffing plan.
147	147	(b) Information reported under Subsection (a) is public
148	148	information.
149	149	(c) To the extent possible, the department shall collect the
150	150	data required under Subsection (a) as part of a survey required by
151	151	the department under other law.
152	152	CHAPTER 258. MANDATORY OVERTIME FOR NURSES PROHIBITED
153	153	Sec. 258.001. DEFINITIONS. In this chapter:
154	154	(1) "Hospital" means:
155	155	(A) a general hospital or special hospital, as
156	156	those terms are defined by Section 241.003, including a hospital
157	157	maintained or operated by this state; or
158	158	(B) a mental hospital licensed under Chapter 577.
159	159	(2) "Nurse" means a registered nurse or vocational
160	160	nurse licensed under Chapter 301, Occupations Code.
161	161	(3) "On-call time" means time spent by a nurse who is
162	162	not working but who is compensated for availability.
163	163	Sec. 258.002. MANDATORY OVERTIME. For purposes of this
164	164	chapter, "mandatory overtime" means a requirement that a nurse work
165	165	hours or days that are in addition to the hours or days scheduled,
166	166	regardless of the length of a scheduled shift or the number of
167	167	scheduled shifts each week. In determining whether work is
168	168	mandatory overtime, prescheduled on-call time or time immediately
169	169	before or after a scheduled shift necessary to document or
170	170	communicate patient status to ensure patient safety is not
171	171	included.
172	172	Sec. 258.003. PROHIBITION OF MANDATORY OVERTIME. (a) A
173	173	hospital may not require a nurse to work mandatory overtime, and a
174	174	nurse may refuse to work mandatory overtime.
175	175	(b) This section does not prohibit a nurse from volunteering
176	176	to work overtime.
177	177	(c) A hospital may not use on-call time as a substitute for
178	178	mandatory overtime.
179	179	Sec. 258.004. EXCEPTIONS. (a) Section 258.003 does not
180	180	apply if:
181	181	(1) a health care disaster, such as a natural or other
182	182	type of disaster that increases the need for health care personnel,
183	183	unexpectedly affects the county in which the nurse is employed or
184	184	affects a contiguous county;
185	185	(2) a federal, state, or county declaration of
186	186	emergency is in effect in the county in which the nurse is employed
187	187	or is in effect in a contiguous county;
188	188	(3) there is an emergency or unforeseen event of a kind
189	189	that:
190	190	(A) does not regularly occur;
191	191	(B) increases the need for health care personnel
192	192	at the hospital to provide safe patient care; and
193	193	(C) could not prudently be anticipated by the
194	194	hospital; or
195	195	(4) the nurse is actively engaged in an ongoing
196	196	medical or surgical procedure and the continued presence of the
197	197	nurse through the completion of the procedure is necessary to
198	198	ensure the health and safety of the patient.
199	199	(b) If a hospital determines that an exception exists under
200	200	Subsection (a)(3), the hospital shall, to the extent possible, make
201	201	a good faith effort to meet the staffing need through voluntary
202	202	overtime, including calling per diems and agency nurses, assigning
203	203	floats, or requesting an additional day of work from off-duty
204	204	employees.
205	205	Sec. 258.005. RETALIATION PROHIBITED. A hospital may not
206	206	suspend, terminate, or otherwise discipline or discriminate
207	207	against a nurse who refuses to work mandatory overtime.
208	208	SECTION 2. Subchapter H, Chapter 301, Occupations Code, is
209	209	amended by adding Section 301.356 to read as follows:
210	210	Sec. 301.356. REFUSAL OF MANDATORY OVERTIME. The refusal
211	211	by a nurse to work mandatory overtime as authorized by Chapter 258,
212	212	Health and Safety Code, does not constitute patient abandonment or
213	213	neglect.
214	214	SECTION 3. Subsections (b), (c), and (e), Section 301.413,
215	215	Occupations Code, are amended to read as follows:
216	216	(b) A person may not suspend, [or] terminate [the employment
217	217	of], or otherwise discipline or discriminate against[,] a person
218	218	who:
219	219	(1) reports, without malice, under this subchapter;
220	220	[or]
221	221	(2) requests, in good faith, a nursing peer review
222	222	committee determination under Section 303.005; or
223	223	(3) refuses to engage in conduct as authorized by
224	224	Section 301.352.
225	225	(c) A person who reports under this subchapter, refuses to
226	226	engage in conduct as authorized by Section 301.352, or requests a
227	227	nursing peer review committee determination under Section 303.005
228	228	has a cause of action against a person who violates Subsection (b),
229	229	and may recover:
230	230	(1) the greater of:
231	231	(A) actual damages, including damages for mental
232	232	anguish even if no other injury is shown; or
233	233	(B) $5,000;
234	234	(2) exemplary damages;
235	235	(3) court costs; and
236	236	(4) reasonable attorney's fees.
237	237	(e) A person who brings an action under this section has the
238	238	burden of proof. It is a rebuttable presumption that the person
239	239	[person's employment] was suspended, [or] terminated, or otherwise
240	240	disciplined or discriminated against for reporting under this
241	241	subchapter, for refusing to engage in conduct as authorized by
242	242	Section 301.352, or for requesting a peer review committee
243	243	determination under Section 303.005 if:
244	244	(1) the person was suspended, [or] terminated, or
245	245	otherwise disciplined or discriminated against within 60 days after
246	246	the date the report, refusal, or request was made; and
247	247	(2) the board or a court determines that:
248	248	(A) the report that is the subject of the cause of
249	249	action was:
250	250	(i) authorized or required under Section
251	251	301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
252	252	301.409, or 301.410; and
253	253	(ii) made without malice;
254	254	(B) the request for a peer review committee
255	255	determination that is the subject of the cause of action was:
256	256	(i) authorized under Section 303.005; and
257	257	(ii) made in good faith; or
258	258	(C) the refusal to engage in conduct was
259	259	authorized by Section 301.352.
260	260	SECTION 4. It is not the intent of the legislature that the
261	261	executive commissioner of the Health and Human Services Commission
262	262	rewrite the current rules of the Department of State Health
263	263	Services relating to nurse staffing except to the extent the
264	264	current rules conflict with this Act.
265	265	SECTION 5. (a) The executive commissioner of the Health
266	266	and Human Services Commission shall adopt rules for the Department
267	267	of State Health Services as required by this Act as soon as
268	268	practicable after the effective date of this Act, but not later than
269	269	January 1, 2010.
270	270	(b) The change in law made by this Act to Section 301.413,
271	271	Occupations Code, applies to an action commenced on or after the
272	272	effective date of this Act. An action commenced before the
273	273	effective date of this Act is governed by the law as it existed
274	274	immediately before the effective date of this Act, and that law is
275	275	continued in effect for that purpose.
276	276	SECTION 6. This Act takes effect September 1, 2009.
277	277	______________________________ ______________________________
278	278	President of the Senate Speaker of the House
279	279	I hereby certify that S.B. No. 476 passed the Senate on
280	280	March 25, 2009, by the following vote: Yeas 31, Nays 0; and that
281	281	the Senate concurred in House amendment on May 29, 2009, by the
282	282	following vote: Yeas 31, Nays 0.
283	283	______________________________
284	284	Secretary of the Senate
285	285	I hereby certify that S.B. No. 476 passed the House, with
286	286	amendment, on May 20, 2009, by the following vote: Yeas 137,
287	287	Nays 0, two present not voting.
288	288	______________________________
289	289	Chief Clerk of the House
290	290	Approved:
291	291	______________________________
292	292	Date
293	293	______________________________
294	294	Governor