S.B. No. 476
AN ACT
relating to staffing, overtime, and other employment protections
for nurses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
amended by adding Chapters 257 and 258 to read as follows:
CHAPTER 257. NURSE STAFFING
Sec. 257.001. DEFINITIONS. In this chapter:
(1) "Committee" means a nurse staffing committee
required by this chapter.
(2) "Department" means the Department of State Health
Services.
(3) "Hospital" means:
(A) a general hospital or special hospital, as
those terms are defined by Section 241.003, including a hospital
maintained or operated by this state; or
(B) a mental hospital licensed under Chapter 577.
(4) "Patient care unit" means a unit or area of a
hospital in which registered nurses provide patient care.
Sec. 257.002. LEGISLATIVE FINDINGS. (a) The legislature
finds that:
(1) research supports a conclusion that adequate nurse
staffing is directly related to positive patient outcomes and nurse
satisfaction with the practice environment;
(2) nurse satisfaction with the practice environment
is in large measure determined by providing an adequate level of
nurse staffing based on research findings and patient intensity;
(3) nurse satisfaction and patient safety can be
adversely affected when nurses work excessive hours; and
(4) hospitals and nurses share a mutual interest in
patient safety initiatives that create a healthy environment for
nurses and appropriate care for patients.
(b) In order to protect patients, support greater retention
of registered nurses, and promote adequate nurse staffing, the
legislature intends to establish a mechanism whereby nurses and
hospital management shall participate in a joint process regarding
decisions about nurse staffing.
Sec. 257.003. NURSE STAFFING POLICY AND PLAN. (a) The
governing body of a hospital shall adopt, implement, and enforce a
written nurse staffing policy to ensure that an adequate number and
skill mix of nurses are available to meet the level of patient care
needed. The policy must include a process for:
(1) requiring the hospital to give significant
consideration to the nurse staffing plan recommended by the
hospital's nurse staffing committee and to that committee's
evaluation of any existing plan;
(2) adopting, implementing, and enforcing an official
nurse services staffing plan that is based on the needs of each
patient care unit and shift and on evidence relating to patient care
needs;
(3) using the official nurse services staffing plan as
a component in setting the nurse staffing budget;
(4) encouraging nurses to provide input to the
committee relating to nurse staffing concerns;
(5) protecting from retaliation nurses who provide
input to the committee; and
(6) ensuring compliance with rules adopted by the
executive commissioner of the Health and Human Services Commission
relating to nurse staffing.
(b) The official nurse services staffing plan adopted under
Subsection (a) must:
(1) reflect current standards established by private
accreditation organizations, governmental entities, national
nursing professional associations, and other health professional
organizations;
(2) set minimum staffing levels for patient care units
that are:
(A) based on multiple nurse and patient
considerations; and
(B) determined by the nursing assessment and in
accordance with evidence-based safe nursing standards;
(3) include a method for adjusting the staffing plan
for each patient care unit to provide staffing flexibility to meet
patient needs; and
(4) include a contingency plan when patient care needs
unexpectedly exceed direct patient care staff resources.
(c) The hospital shall:
(1) use the official nurse services staffing plan:
(A) as a component in setting the nurse staffing
budget; and
(B) to guide the hospital in assigning nurses
hospital-wide; and
(2) make readily available to nurses on each patient
care unit at the beginning of each shift the official nurse services
staffing plan levels and current staffing levels for that unit and
that shift.
Sec. 257.004. NURSE STAFFING COMMITTEE. (a) A hospital
shall establish a nurse staffing committee as a standing committee
of the hospital.
(b) The committee shall be composed of members who are
representative of the types of nursing services provided in the
hospital.
(c) The chief nursing officer of the hospital is a voting
member of the committee.
(d) At least 60 percent of the members of the committee must
be registered nurses who:
(1) provide direct patient care during at least 50
percent of their work time; and
(2) are selected by their peers who provide direct
patient care during at least 50 percent of their work time.
(e) The committee shall meet at least quarterly.
(f) Participation on the committee by a hospital employee as
a committee member is part of the employee's work time, and the
hospital shall compensate that member for that time accordingly.
The hospital shall relieve a committee member of other work duties
during committee meetings.
(g) The committee shall:
(1) develop and recommend to the hospital's governing
body a nurse staffing plan that meets the requirements of Section
257.003;
(2) review, assess, and respond to staffing concerns
expressed to the committee;
(3) identify the nurse-sensitive outcome measures the
committee will use to evaluate the effectiveness of the official
nurse services staffing plan;
(4) evaluate, at least semiannually, the
effectiveness of the official nurse services staffing plan and
variations between the plan and the actual staffing; and
(5) submit to the hospital's governing body, at least
semiannually, a report on nurse staffing and patient care outcomes,
including the committee's evaluation of the effectiveness of the
official nurse services staffing plan and aggregate variations
between the staffing plan and actual staffing.
(h) In evaluating the effectiveness of the official nurse
services staffing plan, the committee shall consider patient needs,
nursing-sensitive quality indicators, nurse satisfaction measures
collected by the hospital, and evidence-based nurse staffing
standards.
Sec. 257.005. REPORTING OF STAFFING INFORMATION TO
DEPARTMENT. (a) A hospital shall annually report to the
department on:
(1) whether the hospital's governing body has adopted
a nurse staffing policy as required by Section 257.003;
(2) whether the hospital has established a nurse
staffing committee as required by Section 257.004 that meets the
membership requirements of that section;
(3) whether the nurse staffing committee has evaluated
the hospital's official nurse services staffing plan as required by
Section 257.004 and has reported the results of the evaluation to
the hospital's governing body as provided by that section; and
(4) the nurse-sensitive outcome measures the
committee adopted for use in evaluating the hospital's official
nurse services staffing plan.
(b) Information reported under Subsection (a) is public
information.
(c) To the extent possible, the department shall collect the
data required under Subsection (a) as part of a survey required by
the department under other law.
CHAPTER 258. MANDATORY OVERTIME FOR NURSES PROHIBITED
Sec. 258.001. DEFINITIONS. In this chapter:
(1) "Hospital" means:
(A) a general hospital or special hospital, as
those terms are defined by Section 241.003, including a hospital
maintained or operated by this state; or
(B) a mental hospital licensed under Chapter 577.
(2) "Nurse" means a registered nurse or vocational
nurse licensed under Chapter 301, Occupations Code.
(3) "On-call time" means time spent by a nurse who is
not working but who is compensated for availability.
Sec. 258.002. MANDATORY OVERTIME. For purposes of this
chapter, "mandatory overtime" means a requirement that a nurse work
hours or days that are in addition to the hours or days scheduled,
regardless of the length of a scheduled shift or the number of
scheduled shifts each week. In determining whether work is
mandatory overtime, prescheduled on-call time or time immediately
before or after a scheduled shift necessary to document or
communicate patient status to ensure patient safety is not
included.
Sec. 258.003. PROHIBITION OF MANDATORY OVERTIME. (a) A
hospital may not require a nurse to work mandatory overtime, and a
nurse may refuse to work mandatory overtime.
(b) This section does not prohibit a nurse from volunteering
to work overtime.
(c) A hospital may not use on-call time as a substitute for
mandatory overtime.
Sec. 258.004. EXCEPTIONS. (a) Section 258.003 does not
apply if:
(1) a health care disaster, such as a natural or other
type of disaster that increases the need for health care personnel,
unexpectedly affects the county in which the nurse is employed or
affects a contiguous county;
(2) a federal, state, or county declaration of
emergency is in effect in the county in which the nurse is employed
or is in effect in a contiguous county;
(3) there is an emergency or unforeseen event of a kind
that:
(A) does not regularly occur;
(B) increases the need for health care personnel
at the hospital to provide safe patient care; and
(C) could not prudently be anticipated by the
hospital; or
(4) the nurse is actively engaged in an ongoing
medical or surgical procedure and the continued presence of the
nurse through the completion of the procedure is necessary to
ensure the health and safety of the patient.
(b) If a hospital determines that an exception exists under
Subsection (a)(3), the hospital shall, to the extent possible, make
a good faith effort to meet the staffing need through voluntary
overtime, including calling per diems and agency nurses, assigning
floats, or requesting an additional day of work from off-duty
employees.
Sec. 258.005. RETALIATION PROHIBITED. A hospital may not
suspend, terminate, or otherwise discipline or discriminate
against a nurse who refuses to work mandatory overtime.
SECTION 2. Subchapter H, Chapter 301, Occupations Code, is
amended by adding Section 301.356 to read as follows:
Sec. 301.356. REFUSAL OF MANDATORY OVERTIME. The refusal
by a nurse to work mandatory overtime as authorized by Chapter 258,
Health and Safety Code, does not constitute patient abandonment or
neglect.
SECTION 3. Subsections (b), (c), and (e), Section 301.413,
Occupations Code, are amended to read as follows:
(b) A person may not suspend, [or] terminate [the employment
of], or otherwise discipline or discriminate against[,] a person
who:
(1) reports, without malice, under this subchapter;
[or]
(2) requests, in good faith, a nursing peer review
committee determination under Section 303.005; or
(3) refuses to engage in conduct as authorized by
Section 301.352.
(c) A person who reports under this subchapter, refuses to
engage in conduct as authorized by Section 301.352, or requests a
nursing peer review committee 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.
(e) A person who brings an action under this section has the
burden of proof. It is a rebuttable presumption that the person
[person's employment] was suspended, [or] terminated, or otherwise
disciplined or discriminated against 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 person was suspended, [or] terminated, or
otherwise disciplined or discriminated against within 60 days after
the date the report, refusal, or request was made; and
(2) the board 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. It is not the intent of the legislature that the
executive commissioner of the Health and Human Services Commission
rewrite the current rules of the Department of State Health
Services relating to nurse staffing except to the extent the
current rules conflict with this Act.
SECTION 5. (a) The executive commissioner of the Health
and Human Services Commission shall adopt rules for the Department
of State Health Services as required by this Act as soon as
practicable after the effective date of this Act, but not later than
January 1, 2010.
(b) The change in law made by this Act to Section 301.413,
Occupations Code, applies to an action commenced on or after the
effective date of this Act. An action commenced before the
effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 476 passed the Senate on
March 25, 2009, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 29, 2009, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 476 passed the House, with
amendment, on May 20, 2009, by the following vote: Yeas 137,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor