Texas 2009 - 81st Regular

Texas Senate Bill SB791 Compare Versions

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1	1	By: Nelson S.B. No. 791
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the certified nurse aide registry and the regulation of
7	7	certified nurse aides by the Texas Board of Nursing.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 301.002, Occupations Code, is amended by
10	10	adding Subdivision (6) to read as follows:
11	11	(6) "Certified nurse aide" means a person who holds a
12	12	certificate of registration issued under this chapter as a
13	13	certified nurse aide.
14	14	SECTION 2. Section 301.151, Occupations Code, is amended to
15	15	read as follows:
16	16	Sec. 301.151. GENERAL RULEMAKING AUTHORITY. The board may
17	17	adopt and enforce rules consistent with this chapter and necessary
18	18	to:
19	19	(1) perform its duties and conduct proceedings before
20	20	the board;
21	21	(2) regulate the practice of professional nursing and
22	22	vocational nursing and the practice of certified nurse aides;
23	23	(3) establish standards of professional conduct for
24	24	license and certificate holders under this chapter; [and]
25	25	(4) determine the scope of practice for certified
26	26	nurse aides; and
27	27	(5) determine whether an act constitutes the practice
28	28	of professional nursing or vocational nursing or the practice of
29	29	certified nurse aides.
30	30	SECTION 3. Section 301.157, Occupations Code, is amended by
31	31	adding Subsection (i) to read as follows:
32	32	(i) The board by rule shall:
33	33	(1) prescribe a program of study to qualify a person
34	34	for an initial certificate of registration as a certified nurse
35	35	aide; and
36	36	(2) approve training programs that meet the board's
37	37	requirements for the program of study.
38	38	SECTION 4. Subchapter D, Chapter 301, Occupations Code, is
39	39	amended by adding Section 301.1596 to read as follows:
40	40	Sec. 301.1596. CERTIFIED NURSE AIDE ADVISORY COMMITTEE.
41	41	(a) The board shall establish a certified nurse aide advisory
42	42	committee to advise the board on the regulation of certified nurse
43	43	aides.
44	44	(b) The advisory committee consists of at least 14 members
45	45	appointed by the executive director as follows:
46	46	(1) two nursing home representatives;
47	47	(2) two representatives from community colleges with
48	48	certified nurse aide training programs in this state;
49	49	(3) one hospital representative;
50	50	(4) one home health industry representative;
51	51	(5) three certified nurse aides, two with not more
52	52	than five years' experience as certified nurse aides and one with at
53	53	least five years' experience as a certified nurse aide;
54	54	(6) two representatives of certified nurse aide
55	55	training programs that are not conducted by a facility described by
56	56	Section 250.001, Health and Safety Code, or a community college;
57	57	(7) one registered nurse with at least two years'
58	58	experience in training certified nurse aides;
59	59	(8) one licensed vocational nurse with at least two
60	60	years' experience in working directly with certified nurse aides;
61	61	and
62	62	(9) one representative from the Department of Aging
63	63	and Disability Services who is familiar with certified nurse aide
64	64	training and regulation.
65	65	(c) The nurse aide advisory committee shall study and
66	66	provide recommendations to the board in the manner required by the
67	67	executive director on:
68	68	(1) improving communication between nurses and
69	69	certified nurse aides;
70	70	(2) clarifying the scope of practice of certified
71	71	nurse aides;
72	72	(3) clarifying the professional relationship between
73	73	nurses and certified nurse aides;
74	74	(4) improving the practice of certified nurse aides;
75	75	(5) improving the training for certified nurse aides
76	76	to more adequately meet the state health care system's acute and
77	77	long-term care demands;
78	78	(6) establishing the program of study and classroom
79	79	hours required for successful completion of a certified nurse aide
80	80	training program;
81	81	(7) listing the subjects to be included in the
82	82	training program curriculum to ensure the curriculum's continued
83	83	relevancy in health care, including consideration of curriculum
84	84	related to:
85	85	(A) successful strategies for dealing with
86	86	patients with dementia or other difficult patients;
87	87	(B) time management;
88	88	(C) task prioritizing;
89	89	(D) interpersonal communication skills;
90	90	(E) cultural sensitivity;
91	91	(F) teamwork training;
92	92	(G) psychosocial skills; and
93	93	(H) the aging process; and
94	94	(8) establishing the examination requirements for
95	95	issuance of a certificate of registration as a certified nurse aide
96	96	and for inclusion on the nurse aide registry.
97	97	(d) A member of the advisory committee is entitled to
98	98	reimbursement for travel expenses incurred for service on the
99	99	advisory committee as provided by the General Appropriations Act.
100	100	A member may not receive any compensation for that service.
101	101	(e) The advisory committee shall meet regularly as
102	102	necessary at the call of the presiding officer of the advisory
103	103	committee or at the call of the executive director.
104	104	(f) The board shall provide administrative support for the
105	105	advisory committee.
106	106	(g) Chapter 2110, Government Code, does not apply to the
107	107	advisory committee established under this section.
108	108	SECTION 5. Subchapter D, Chapter 301, Occupations Code, is
109	109	amended by adding Section 301.168 to read as follows:
110	110	Sec. 301.168. INTERAGENCY CONTRACT. (a) The board shall
111	111	enter into an interagency contract with the Health and Human
112	112	Services Commission and the Department of Aging and Disability
113	113	Services under which the board shall administer and maintain the
114	114	nurse aide registry established under Chapter 250, Health and
115	115	Safety Code.
116	116	(b) The interagency contract must provide that:
117	117	(1) the Department of Aging and Disability Services
118	118	has oversight authority over the nurse aide registry established
119	119	under Chapter 250, Health and Safety Code;
120	120	(2) the Department of Aging and Disability Services is
121	121	the only state agency authorized to place findings of abuse,
122	122	neglect, or exploitation in the registry as prescribed by federal
123	123	law;
124	124	(3) the board shall administer and maintain the daily
125	125	operation of the registry and receive the necessary federal funding
126	126	from the Department of Aging and Disability Services to reimburse
127	127	the board for the duties performed by the board; and
128	128	(4) the Department of Aging and Disability Services is
129	129	responsible for reimbursement provided to nursing home providers
130	130	for the cost of certified nurse aide training at the provider's
131	131	facilities.
132	132	SECTION 6. Chapter 301, Occupations Code, is amended by
133	133	adding Subchapter F-1 to read as follows:
134	134	SUBCHAPTER F-1. NURSE AIDES: REGISTRATION AND REGISTRATION
135	135	RENEWAL REQUIREMENTS
136	136	Sec. 301.281. CERTIFICATE OF REGISTRATION REQUIRED. (a) A
137	137	person may not engage in practice as a certified nurse aide or hold
138	138	out to the public that the person is a certified nurse aide or is
139	139	included on the nurse aide registry under Chapter 250, Health and
140	140	Safety Code, unless the person holds a certificate of registration
141	141	as a certified nurse aide under this chapter and is included on the
142	142	nurse aide registry under Chapter 250, Health and Safety Code.
143	143	(b) The board, in consultation with the nurse aide advisory
144	144	committee established under Section 301.1596, by rule shall:
145	145	(1) define the scope of practice of a certified nurse
146	146	aide, including the general criteria for delegation and supervision
147	147	of tasks performed by a certified nurse aide; and
148	148	(2) establish the qualifications for holding a
149	149	certificate of registration as a certified nurse aide and for
150	150	inclusion on the nurse aide registry.
151	151	(c) The qualifications established by board rule must
152	152	require a person applying to hold a certificate of registration as a
153	153	certified nurse aide and to be included on the nurse aide registry
154	154	to successfully complete:
155	155	(1) a board-approved training program that consists of
156	156	not less than 90 hours and not more than 359 hours of course work as
157	157	specified by board rule; and
158	158	(2) a competency examination on completion of the
159	159	training program.
160	160	Sec. 301.282. APPLICATION. Each person applying for a
161	161	certified nurse aide certificate of registration and for inclusion
162	162	on the nurse aide registry must submit to the board a sworn
163	163	application that demonstrates the applicant's qualifications under
164	164	this chapter, accompanied by evidence that the applicant:
165	165	(1) has good professional character;
166	166	(2) has successfully completed a training program
167	167	approved by the board; and
168	168	(3) has passed the examination approved by the board.
169	169	Sec. 301.283. ISSUANCE AND INCLUSION; FEE. (a) The board
170	170	shall issue a certificate of registration as a certified nurse aide
171	171	to each qualified person who applies to the board on the form
172	172	prescribed by the board and include the person on the nurse aide
173	173	registry.
174	174	(b) The board may charge a fee for the issuance of a copy of
175	175	a certificate of registration.
176	176	Sec. 301.284. TERM. (a) A certificate of registration as
177	177	a certified nurse aide issued under this subchapter is valid for two
178	178	years. The board shall include the expiration date on each
179	179	certificate of registration issued under this subchapter.
180	180	(b) Inclusion on the nurse aide registry is valid until
181	181	expiration of the certificate of registration.
182	182	Sec. 301.285. RENEWAL. (a) A person may renew the
183	183	person's certificate of registration as a certified nurse aide and
184	184	renew inclusion on the nurse aide registry by:
185	185	(1) submitting a renewal application to the board on
186	186	the form prescribed by the board before the registration expires;
187	187	(2) providing proof that the person has successfully
188	188	completed during the preceding two years the continuing education
189	189	hours required by Subsection (b); and
190	190	(3) complying with any other renewal requirements
191	191	adopted by the board.
192	192	(b) A person who is registered as a certified nurse aide and
193	193	who is included on the nurse aide registry shall annually in
194	194	accordance with board rules complete at least 12 hours of
195	195	continuing education.
196	196	(c) At least 30 days before the expiration of the person's
197	197	certificate of registration, the board shall send written notice of
198	198	the impending certificate expiration to the person at the person's
199	199	last known address according to the records of the board.
200	200	SECTION 7. Subsection (b), Section 301.407, Occupations
201	201	Code, is amended to read as follows:
202	202	(b) Unless expressly prohibited by state or federal law, a
203	203	state agency that has reason to believe that a nurse or nurse aide
204	204	has engaged in conduct subject to reporting shall report the nurse
205	205	or nurse aide in writing to the board or to a nursing peer review
206	206	committee under Chapter 303.
207	207	SECTION 8. Section 301.451, Occupations Code, is amended to
208	208	read as follows:
209	209	Sec. 301.451. CERTAIN PROHIBITED PRACTICES. A person may
210	210	not:
211	211	(1) sell, fraudulently obtain, or fraudulently
212	212	furnish a nursing diploma, license, certificate, renewal license or
213	213	certificate, or record;
214	214	(2) assist another person in selling, fraudulently
215	215	obtaining, or fraudulently furnishing a nursing diploma, license,
216	216	certificate, renewal license or certificate, or record;
217	217	(3) practice nursing or practice as a nurse aide under
218	218	a diploma, license, certificate, or record that was:
219	219	(A) obtained unlawfully or fraudulently; or
220	220	(B) signed or issued unlawfully or under false
221	221	representation; or
222	222	(4) practice nursing or practice as a nurse aide in a
223	223	period in which the person's license or certificate is suspended or
224	224	revoked.
225	225	SECTION 9. Subsection (b), Section 301.452, Occupations
226	226	Code, is amended to read as follows:
227	227	(b) A person is subject to denial of a license or
228	228	certificate or to disciplinary action under this subchapter for:
229	229	(1) a violation of this chapter, a rule or regulation
230	230	not inconsistent with this chapter, or an order issued under this
231	231	chapter;
232	232	(2) fraud or deceit in procuring or attempting to
233	233	procure a license to practice professional nursing or vocational
234	234	nursing or a nurse aide certificate;
235	235	(3) a conviction for, or placement on deferred
236	236	adjudication community supervision or deferred disposition for, a
237	237	felony or for a misdemeanor involving moral turpitude;
238	238	(4) conduct that results in the revocation of
239	239	probation imposed because of conviction for a felony or for a
240	240	misdemeanor involving moral turpitude;
241	241	(5) use of a nursing license, diploma, or permit, a
242	242	nurse aide certificate, or the transcript of such a document, that
243	243	has been fraudulently purchased, issued, counterfeited, or
244	244	materially altered;
245	245	(6) impersonating or acting as a proxy for another
246	246	person in the licensing examination required under Section 301.253
247	247	or 301.255;
248	248	(7) directly or indirectly aiding or abetting an
249	249	unlicensed or uncertified person in connection with the
250	250	unauthorized practice of nursing or unauthorized practice as a
251	251	nurse aide;
252	252	(8) revocation, suspension, or denial of, or any other
253	253	action relating to, the person's license, certificate, or privilege
254	254	to practice nursing or to practice as a nurse aide in another
255	255	jurisdiction;
256	256	(9) intemperate use of alcohol or drugs that the board
257	257	determines endangers or could endanger a patient;
258	258	(10) unprofessional or dishonorable conduct that, in
259	259	the board's opinion, is likely to deceive, defraud, or injure a
260	260	patient or the public;
261	261	(11) adjudication of mental incompetency;
262	262	(12) lack of fitness to practice because of a mental or
263	263	physical health condition that could result in injury to a patient
264	264	or the public; or
265	265	(13) failure to care adequately for a patient or to
266	266	conform to the minimum standards of acceptable nursing practice in
267	267	a manner that, in the board's opinion, exposes a patient or other
268	268	person unnecessarily to risk of harm.
269	269	SECTION 10. Section 301.453, Occupations Code, is amended
270	270	to read as follows:
271	271	Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
272	272	DISCIPLINE. (a) If the board determines that a person has
273	273	committed an act listed in Section 301.452(b), the board shall
274	274	enter an order imposing one or more of the following:
275	275	(1) denial of the person's application for a license or
276	276	certificate, license or certificate renewal, or temporary permit;
277	277	(2) issuance of a written warning;
278	278	(3) administration of a public reprimand;
279	279	(4) limitation or restriction of the person's license
280	280	or certificate, including:
281	281	(A) limiting to or excluding from the person's
282	282	practice one or more specified activities of nursing or as a nurse
283	283	aide; or
284	284	(B) stipulating periodic board review;
285	285	(5) suspension of the person's license or certificate
286	286	for a period not to exceed five years;
287	287	(6) revocation of the person's license or certificate;
288	288	or
289	289	(7) assessment of a fine.
290	290	(b) In addition to or instead of an action under Subsection
291	291	(a), the board, by order, may require the person to:
292	292	(1) submit to care, counseling, or treatment by a
293	293	health provider designated by the board as a condition for the
294	294	issuance or renewal of a license or certificate;
295	295	(2) participate in a program of education or
296	296	counseling prescribed by the board;
297	297	(3) practice for a specified period under the
298	298	direction of a registered nurse or vocational nurse designated by
299	299	the board; or
300	300	(4) perform public service the board considers
301	301	appropriate.
302	302	(c) The board may probate any penalty imposed on a nurse or
303	303	nurse aide and may accept the voluntary surrender of a license or
304	304	certificate. The board may not reinstate a surrendered license or
305	305	certificate unless it determines that the person is competent to
306	306	resume practice.
307	307	(d) If the board suspends, revokes, or accepts surrender of
308	308	a license or certificate, the board may impose conditions for
309	309	reinstatement that the person must satisfy before the board may
310	310	issue an unrestricted license or certificate.
311	311	SECTION 11. Subsection (c), Section 301.4531, Occupations
312	312	Code, is amended to read as follows:
313	313	(c) In the case of a person described by:
314	314	(1) Subsection (b)(1)(A), the board shall consider
315	315	taking a more severe disciplinary action, including revocation of
316	316	the person's license or certificate, than the disciplinary action
317	317	that would be taken for a single violation; and
318	318	(2) Subsection (b)(1)(B), the board shall consider
319	319	taking a more severe disciplinary action, including revocation of
320	320	the person's license or certificate, than the disciplinary action
321	321	that would be taken for a person who has not previously been the
322	322	subject of disciplinary action by the board.
323	323	SECTION 12. Section 301.4535, Occupations Code, is amended
324	324	to read as follows:
325	325	Sec. 301.4535. REQUIRED SUSPENSION, REVOCATION, OR REFUSAL
326	326	OF LICENSE OR CERTIFICATE FOR CERTAIN OFFENSES. (a) The board
327	327	shall suspend a nurse's license or a nurse aide's certificate or
328	328	refuse to issue a license or certificate to an applicant on proof
329	329	that the nurse, nurse aide, or applicant has been initially
330	330	convicted of:
331	331	(1) murder under Section 19.02, Penal Code, capital
332	332	murder under Section 19.03, Penal Code, or manslaughter under
333	333	Section 19.04, Penal Code;
334	334	(2) kidnapping or unlawful restraint under Chapter 20,
335	335	Penal Code, and the offense was punished as a felony or state jail
336	336	felony;
337	337	(3) sexual assault under Section 22.011, Penal Code;
338	338	(4) aggravated sexual assault under Section 22.021,
339	339	Penal Code;
340	340	(5) continuous sexual abuse of young child or children
341	341	under Section 21.02, Penal Code, or indecency with a child under
342	342	Section 21.11, Penal Code;
343	343	(6) aggravated assault under Section 22.02, Penal
344	344	Code;
345	345	(7) intentionally, knowingly, or recklessly injuring
346	346	a child, elderly individual, or disabled individual under Section
347	347	22.04, Penal Code;
348	348	(8) intentionally, knowingly, or recklessly
349	349	abandoning or endangering a child under Section 22.041, Penal Code;
350	350	(9) aiding suicide under Section 22.08, Penal Code,
351	351	and the offense was punished as a state jail felony;
352	352	(10) an offense under Section 25.07, Penal Code,
353	353	punished as a felony;
354	354	(11) an offense under Section 25.071, Penal Code,
355	355	punished as a felony;
356	356	(12) an agreement to abduct a child from custody under
357	357	Section 25.031, Penal Code;
358	358	(13) the sale or purchase of a child under Section
359	359	25.08, Penal Code;
360	360	(14) robbery under Section 29.02, Penal Code;
361	361	(15) aggravated robbery under Section 29.03, Penal
362	362	Code;
363	363	(16) an offense for which a defendant is required to
364	364	register as a sex offender under Chapter 62, Code of Criminal
365	365	Procedure; or
366	366	(17) an offense under the law of another state,
367	367	federal law, or the Uniform Code of Military Justice that contains
368	368	elements that are substantially similar to the elements of an
369	369	offense listed in this subsection.
370	370	(b) On final conviction or a plea of guilty or nolo
371	371	contendere for an offense listed in Subsection (a), the board, as
372	372	appropriate, may not issue a license or certificate to an
373	373	applicant, shall refuse to renew a license or certificate, or shall
374	374	revoke a license or certificate if the applicant or license or
375	375	certificate holder did not previously disclose the conviction or
376	376	plea and the fifth anniversary of the date the person successfully
377	377	completed community supervision or parole has not occurred.
378	378	(c) A person is not eligible for an initial license or
379	379	certificate or for reinstatement or endorsement of a license to
380	380	practice nursing or a certificate as a nurse aide in this state
381	381	before the fifth anniversary of the date the person successfully
382	382	completed and was dismissed from community supervision or parole
383	383	for an offense described by Subsection (a).
384	384	SECTION 13. Subsections (a), (c), and (e), Section 301.454,
385	385	Occupations Code, are amended to read as follows:
386	386	(a) Except in the case of a temporary suspension authorized
387	387	under Section 301.455 or an action taken in accordance with an
388	388	agreement between the board and a license or certificate holder,
389	389	the board may not initiate a disciplinary action relating to a
390	390	license or certificate unless:
391	391	(1) the board has served notice to the license or
392	392	certificate holder of the facts or conduct alleged to warrant the
393	393	intended action; and
394	394	(2) the license or certificate holder has been given
395	395	an opportunity, in writing or through an informal meeting, to show
396	396	compliance with all requirements of law for the retention of the
397	397	license or certificate.
398	398	(c) A person is entitled to a hearing conducted by the State
399	399	Office of Administrative Hearings if the board proposes to:
400	400	(1) refuse to admit the person to examination;
401	401	(2) refuse to issue a license, certificate, or
402	402	temporary permit;
403	403	(3) refuse to renew a license or certificate; or
404	404	(4) suspend or revoke the person's license,
405	405	certificate, or permit.
406	406	(e) Notwithstanding Subsection (a), a person is not
407	407	entitled to a hearing on a refusal to renew a license or certificate
408	408	if the person:
409	409	(1) fails to submit a renewal application; or
410	410	(2) submits an application that:
411	411	(A) is incomplete;
412	412	(B) shows on its face that the person does not
413	413	meet the renewal requirements; or
414	414	(C) is not accompanied by the correct fee.
415	415	SECTION 14. The heading of Section 301.455, Occupations
416	416	Code, is amended to read as follows:
417	417	Sec. 301.455. TEMPORARY LICENSE OR CERTIFICATE SUSPENSION
418	418	OR RESTRICTION.
419	419	SECTION 15. Subsections (a) and (b), Section 301.455,
420	420	Occupations Code, are amended to read as follows:
421	421	(a) The license of a nurse or the certificate of a nurse aide
422	422	shall be temporarily suspended or restricted on a determination by
423	423	a majority of the board or a three-member committee of board members
424	424	designated by the board that, from the evidence or information
425	425	presented, the continued practice of the nurse or nurse aide would
426	426	constitute a continuing and imminent threat to the public welfare.
427	427	(b) A license or certificate may be temporarily suspended or
428	428	restricted under this section without notice or hearing on the
429	429	complaint if:
430	430	(1) institution of proceedings for a hearing before
431	431	the State Office of Administrative Hearings is initiated
432	432	simultaneously with the temporary suspension or determination to
433	433	restrict; and
434	434	(2) a hearing is held as soon as possible under this
435	435	chapter and Chapter 2001, Government Code.
436	436	SECTION 16. The heading of Section 301.457, Occupations
437	437	Code, is amended to read as follows:
438	438	Sec. 301.457. COMPLAINT AND INVESTIGATION RELATED TO
439	439	NURSES.
440	440	SECTION 17. Subchapter J, Chapter 301, Occupations Code, is
441	441	amended by adding Section 301.4571 to read as follows:
442	442	Sec. 301.4571. COMPLAINT AND INVESTIGATION RELATED TO NURSE
443	443	AIDES. (a) The board or any person may initiate a proceeding under
444	444	this subchapter by filing with the board a complaint against a nurse
445	445	aide. The complaint must be in writing and signed by the
446	446	complainant.
447	447	(b) Except as otherwise provided by this section, the board
448	448	or a person authorized by the board shall conduct each
449	449	investigation. Each complaint against a nurse aide that requires a
450	450	determination of competency shall be reviewed by a board member,
451	451	consultant, or employee with a nursing background the board
452	452	considers sufficient.
453	453	(c) On the filing of a complaint, the board:
454	454	(1) may conduct a preliminary investigation into the
455	455	identity of the nurse aide named or described in the complaint;
456	456	(2) shall make a timely and appropriate preliminary
457	457	investigation of the complaint; and
458	458	(3) may issue a warning or reprimand to the nurse aide.
459	459	(d) After any preliminary investigation to determine the
460	460	identity of the subject of the complaint, unless it would
461	461	jeopardize an investigation, the board shall notify the nurse aide
462	462	that a complaint has been filed and the nature of the complaint. If
463	463	the investigation reveals probable cause to take further
464	464	disciplinary action, the board shall either attempt an informal
465	465	disposition of the complaint or file a formal charge against the
466	466	nurse aide stating the provision of this chapter or board rule that
467	467	is alleged to have been violated and a brief description of each act
468	468	or omission that constitutes the violation.
469	469	(e) The board shall conduct an investigation of the
470	470	complaint to determine:
471	471	(1) whether the nurse aide's continued practice poses
472	472	a risk of harm to clients or other persons; and
473	473	(2) whether probable cause exists that a nurse aide
474	474	committed an act listed in Section 301.452(b) or that violates
475	475	other law.
476	476	(f) In making a determination under Subsection (e), the
477	477	board shall review the evidence to determine the extent to which a
478	478	deficiency in care by the nurse aide was the result of deficiencies
479	479	in the nurse aide's judgment, knowledge, training, or skill rather
480	480	than other factors beyond the nurse aide's control. A
481	481	determination that a deficiency in care is attributable to a nurse
482	482	aide must be based on the extent to which the nurse aide's conduct
483	483	was the result of a deficiency in the nurse aide's judgment,
484	484	knowledge, training, or skill.
485	485	(g) If the board determines after investigating a complaint
486	486	under Subsection (e) that there is reason to believe that a nurse
487	487	aide's deficiency in care was the result of a factor beyond the
488	488	nurse aide's control, the board shall report that determination to
489	489	the patient safety committee at the facility where the nurse aide's
490	490	deficiency in care occurred or, if the facility does not have a
491	491	patient safety committee, to the chief nursing officer.
492	492	(h) The board and the Department of Aging and Disability
493	493	Services shall share investigation information, including files,
494	494	reports, witness lists, findings, and any other pertinent
495	495	information related to the investigation of a nurse aide by the
496	496	board or department.
497	497	SECTION 18. Subsections (a) and (c), Section 301.458,
498	498	Occupations Code, are amended to read as follows:
499	499	(a) Unless there is an agreed disposition of the complaint
500	500	under Section 301.463, and if probable cause is found under Section
501	501	301.457(e)(2) or Section 301.4571(e)(2), the board or the board's
502	502	authorized representative shall initiate proceedings by filing
503	503	formal charges against the nurse or nurse aide.
504	504	(c) A copy of the formal charge shall be served on the nurse
505	505	or nurse aide, or on the nurse's or nurse aide's counsel of record.
506	506	SECTION 19. Subsection (b), Section 301.459, Occupations
507	507	Code, is amended to read as follows:
508	508	(b) In any hearing under this section, a nurse or nurse aide
509	509	is entitled to appear in person or by counsel.
510	510	SECTION 20. Subsection (a), Section 301.460, Occupations
511	511	Code, is amended to read as follows:
512	512	(a) Except for good cause shown for delay and subject to any
513	513	other privilege or restriction set forth by statute, rule, or legal
514	514	precedent, the board shall, not later than the 30th day after the
515	515	date the board receives a written request from a license or
516	516	certificate holder who is the subject of a formal charge filed under
517	517	Section 301.458 or from the license or certificate holder's counsel
518	518	of record, provide the license or certificate holder with access
519	519	to:
520	520	(1) all known exculpatory information in the board's
521	521	possession; and
522	522	(2) information in the board's possession that the
523	523	board intends to offer into evidence in presenting its case in chief
524	524	at the contested hearing on the complaint.
525	525	SECTION 21. Section 301.462, Occupations Code, is amended
526	526	to read as follows:
527	527	Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE OR
528	528	CERTIFICATE. (a) The board may revoke a nurse's license without
529	529	formal charges, notice, or opportunity of hearing if the nurse
530	530	voluntarily surrenders the nurse's license to the board and
531	531	executes a sworn statement that the nurse does not desire to be
532	532	licensed.
533	533	(b) The board may revoke a nurse aide's certificate without
534	534	formal charges, notice, or opportunity of hearing if the nurse aide
535	535	voluntarily surrenders the nurse aide's certificate to the board
536	536	and executes a sworn statement that the nurse aide does not desire
537	537	to be certified.
538	538	SECTION 22. Subsection (b), Section 301.464, Occupations
539	539	Code, is amended to read as follows:
540	540	(b) Rules adopted under this section must:
541	541	(1) provide the complainant and the license or
542	542	certificate holder an opportunity to be heard; and
543	543	(2) require the presence of a representative of the
544	544	board's legal staff or of the attorney general to advise the board
545	545	or the board's employees.
546	546	SECTION 23. Section 301.466, Occupations Code, is amended
547	547	to read as follows:
548	548	Sec. 301.466. CONFIDENTIALITY. (a) A complaint and
549	549	investigation concerning a nurse or nurse aide under this
550	550	subchapter and all information and material compiled by the board
551	551	in connection with the complaint and investigation are:
552	552	(1) confidential and not subject to disclosure under
553	553	Chapter 552, Government Code; and
554	554	(2) not subject to disclosure, discovery, subpoena, or
555	555	other means of legal compulsion for release to anyone other than the
556	556	board or a board employee or agent involved in license or
557	557	certificate holder discipline.
558	558	(b) Notwithstanding Subsection (a), information regarding a
559	559	complaint and an investigation may be disclosed to:
560	560	(1) a person involved with the board in a disciplinary
561	561	action against the nurse or nurse aide;
562	562	(2) a nursing licensing, certifying, or disciplinary
563	563	board in another jurisdiction;
564	564	(3) a peer assistance program approved by the board
565	565	under Chapter 467, Health and Safety Code;
566	566	(4) a law enforcement agency; or
567	567	(5) a person engaged in bona fide research, if all
568	568	information identifying a specific individual has been deleted.
569	569	(c) The filing of formal charges against a nurse or nurse
570	570	aide by the board, the nature of those charges, disciplinary
571	571	proceedings of the board, and final disciplinary actions, including
572	572	warnings and reprimands, by the board are not confidential and are
573	573	subject to disclosure in accordance with Chapter 552, Government
574	574	Code.
575	575	SECTION 24. Subsections (a) and (b), Section 301.467,
576	576	Occupations Code, are amended to read as follows:
577	577	(a) On application, the board may reinstate:
578	578	(1) a license to practice professional nursing or
579	579	vocational nursing to a person whose license has been revoked,
580	580	suspended, or surrendered; or
581	581	(2) a certificate of a nurse aide to a person whose
582	582	certificate has been revoked, suspended, or surrendered.
583	583	(b) An application to reinstate a revoked license or
584	584	certificate:
585	585	(1) may not be made before the first anniversary of the
586	586	date of the revocation; and
587	587	(2) must be made in the manner and form the board
588	588	requires.
589	589	SECTION 25. Section 301.468, Occupations Code, is amended
590	590	by amending Subsections (a) and (c) and adding Subsections (a-1)
591	591	and (a-2) to read as follows:
592	592	(a) The board may determine that an order denying a license
593	593	or certificate application or suspending a license or certificate
594	594	be probated.
595	595	(a-1) A person subject to a probation order under Subsection
596	596	(a) related to a license shall conform to each condition the board
597	597	sets as the terms of probation, including a condition:
598	598	(1) limiting the practice of the person to, or
599	599	excluding, one or more specified activities of professional nursing
600	600	or vocational nursing; or
601	601	(2) requiring the person to submit to supervision,
602	602	care, counseling, or treatment by a practitioner designated by the
603	603	board.
604	604	(a-2) A person subject to a probation order under Subsection
605	605	(a) related to a certificate shall conform to each condition the
606	606	board sets as the terms of probation, including a condition:
607	607	(1) limiting the practice of the person to, or
608	608	excluding, one or more specified activities performed by nurse
609	609	aides; or
610	610	(2) requiring the person to submit to supervision,
611	611	care, counseling, or treatment by a practitioner designated by the
612	612	board.
613	613	(c) At any time while the person remains subject to the
614	614	probation order, the board may hold a hearing and rescind the
615	615	probation and enforce the board's original action in denying or
616	616	suspending the license or certificate. The hearing shall be called
617	617	by the presiding officer of the board, who shall issue a notice to
618	618	be served on the person or the person's counsel not later than the
619	619	20th day before the date scheduled for the hearing that:
620	620	(1) sets the time and place for the hearing; and
621	621	(2) contains the charges or complaints against the
622	622	probationer.
623	623	SECTION 26. Section 301.469, Occupations Code, is amended
624	624	to read as follows:
625	625	Sec. 301.469. NOTICE OF FINAL ACTION. If the board takes a
626	626	final disciplinary action, including a warning or reprimand,
627	627	against a nurse or nurse aide under this subchapter, the board shall
628	628	immediately send a copy of the board's final order to the nurse or
629	629	nurse aide and to the last known employer of the nurse or nurse
630	630	aide.
631	631	SECTION 27. Section 301.470, Occupations Code, is amended
632	632	to read as follows:
633	633	Sec. 301.470. REFUND. (a) Subject to Subsection (b), the
634	634	board may order a license or certificate holder to pay a refund to a
635	635	consumer as provided in an agreement resulting from an informal
636	636	settlement conference instead of or in addition to imposing an
637	637	administrative penalty under this chapter.
638	638	(b) The amount of a refund ordered as provided in an
639	639	agreement resulting from an informal settlement conference may not
640	640	exceed the amount the consumer paid to a nurse or nurse aide for a
641	641	service regulated by this chapter or the actual amount stolen or
642	642	defrauded from a patient by the nurse or nurse aide. The board may
643	643	not require payment of other damages or estimate harm in a refund
644	644	order.
645	645	SECTION 28. Section 301.471, Occupations Code, is amended
646	646	by adding Subsection (a-1) and amending Subsection (b) to read as
647	647	follows:
648	648	(a-1) If it appears to the board that a person who is not
649	649	certified as a nurse aide under this chapter is violating this
650	650	chapter, a rule adopted under this chapter, or another state
651	651	statute or rule relating to the practice of a nurse aide and the
652	652	board determines that the unauthorized activity constitutes a
653	653	clear, imminent, or continuing threat to the public health and
654	654	safety, the board may:
655	655	(1) issue an emergency cease and desist order
656	656	prohibiting the person from engaging in the activity; and
657	657	(2) report the activity to a local law enforcement
658	658	agency or the attorney general for prosecution.
659	659	(b) An order issued under Subsection (a) or (a-1) must:
660	660	(1) be delivered on issuance to the person affected by
661	661	the order by personal delivery or registered or certified mail,
662	662	return receipt requested, to the person's last known address;
663	663	(2) state the acts or practices alleged to be an
664	664	unauthorized activity and require the person immediately to cease
665	665	and desist from the unauthorized activity; and
666	666	(3) contain a notice that a request for hearing may be
667	667	filed under this section.
668	668	SECTION 29. Section 301.552, Occupations Code, is amended
669	669	to read as follows:
670	670	Sec. 301.552. MONITORING OF LICENSE OR CERTIFICATE HOLDER.
671	671	The board by rule shall develop a system for monitoring the
672	672	compliance of license and certificate holders with the requirements
673	673	of this chapter. Rules adopted under this section must include
674	674	procedures to:
675	675	(1) monitor for compliance a license or certificate
676	676	holder who is ordered by the board to perform certain acts; and
677	677	(2) identify and monitor each license or certificate
678	678	holder who represents a risk to the public.
679	679	SECTION 30. Section 250.001, Health and Safety Code, is
680	680	amended by amending Subdivisions (1) and (3) and adding Subdivision
681	681	(6) to read as follows:
682	682	(1) "Nurse aide registry" means a list of certified
683	683	nurse aides maintained and administered by the Texas Board of
684	684	Nursing as provided by Chapter 301, Occupations Code, under the
685	685	oversight of the [Texas] Department of Aging and Disability [Human]
686	686	Services and maintained in compliance with [of nurse aides under]
687	687	the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
688	688	100-203).
689	689	(3) "Facility" means:
690	690	(A) a nursing home, custodial care home, or other
691	691	institution licensed by the department [Texas Department of Human
692	692	Services] under Chapter 242;
693	693	(B) an assisted living facility licensed by the
694	694	department [Texas Department of Human Services] under Chapter 247;
695	695	(C) a home and community support services agency
696	696	licensed under Chapter 142;
697	697	(D) an adult day care facility licensed by the
698	698	department [Texas Department of Human Services] under Chapter 103,
699	699	Human Resources Code;
700	700	(E) a facility for persons with mental
701	701	retardation licensed under Chapter 252;
702	702	(F) an adult foster care provider that contracts
703	703	with the department [Texas Department of Human Services];
704	704	(G) a facility that provides mental health
705	705	services and that is operated by or contracts with the [Texas]
706	706	Department of State [Mental] Health Services [and Mental
707	707	Retardation];
708	708	(H) a local mental health or mental retardation
709	709	authority designated under Section 533.035; or
710	710	(I) a person exempt from licensing under Section
711	711	142.003(a)(19).
712	712	(6) "Department" means the Department of Aging and
713	713	Disability Services.
714	714	SECTION 31. Chapter 250, Health and Safety Code, is amended
715	715	by adding Section 250.0011 to read as follows:
716	716	Sec. 250.0011. NURSE AIDE REGISTRY. (a) The department
717	717	shall establish a registry of certified nurse aides.
718	718	(b) The department shall oversee the nurse aide registry
719	719	administered and maintained by the Texas Board of Nursing under
720	720	Chapter 301, Occupations Code, and under the interagency contract
721	721	between the department, the Health and Human Services Commission,
722	722	and the board.
723	723	(c) The department shall place any finding of abuse,
724	724	neglect, or exploitation by a certified nurse aide in the registry
725	725	and in the employee misconduct registry maintained under Chapter
726	726	253.
727	727	SECTION 32. (a) Not later than October 1, 2009, the
728	728	executive director of the Texas Board of Nursing shall appoint the
729	729	members to the nurse aide advisory committee established by Section
730	730	301.1596, Occupations Code, as added by this Act.
731	731	(b) Not later than January 1, 2010, the Texas Board of
732	732	Nursing, the Health and Human Services Commission, and the
733	733	Department of Aging and Disability Services shall enter into an
734	734	interagency contract as required by Section 301.168, Occupations
735	735	Code, as added by this Act.
736	736	(c) Not later than May 1, 2010, the Texas Board of Nursing
737	737	shall:
738	738	(1) establish the qualifications for issuance of a
739	739	certificate of registration and renewal of a certificate of
740	740	registration as a certified nurse aide; and
741	741	(2) adopt the rules necessary to implement the changes
742	742	in law made by this Act.
743	743	SECTION 33. (a) A person listed as a certified nurse aide
744	744	on the nurse aide registry under Chapter 250, Health and Safety
745	745	Code, on the effective date of this Act is entitled to renew a
746	746	certificate of registration as a certified nurse aide and renew
747	747	inclusion on the nurse aide registry without fulfilling any
748	748	additional educational training or examination requirements
749	749	established by the Texas Board of Nursing under Chapter 301,
750	750	Occupations Code, as amended by this Act, if the person has the
751	751	other qualifications required by the board and Chapter 301,
752	752	Occupations Code, and if, before August 31, 2010, the person
753	753	submits a renewal application as required by Chapter 301.
754	754	(b) Chapter 301, Occupations Code, as amended by this Act,
755	755	applies only to the issuance of a certificate of registration or
756	756	renewal of a certificate of registration as a certified nurse aide
757	757	and the inclusion or renewal of inclusion on the nurse aide registry
758	758	under Chapter 250, Health and Safety Code, as amended by this Act,
759	759	on or after September 1, 2010.
760	760	(c) Except as provided by Subsection (d) of this section, an
761	761	application for issuance of a certificate of registration or
762	762	renewal of a certificate of registration as a certified nurse aide
763	763	under Chapter 301, Occupations Code, as amended by this Act, and the
764	764	inclusion or renewal of inclusion on the nurse aide registry under
765	765	Chapter 250, Health and Safety Code, as amended by this Act, before
766	766	the effective date of this Act is covered by the law in effect
767	767	immediately before that date, and that law is continued in effect
768	768	for that purpose.
769	769	(d) The Department of Aging and Disability Services shall
770	770	include the expiration date, as required by Chapter 301,
771	771	Occupations Code, as amended by this Act, on each certified nurse
772	772	aide certificate of registration issued or renewed by the
773	773	department on or after the effective date of this Act. A certified
774	774	nurse aide certificate of registration issued by the Department of
775	775	Aging and Disability Services before the effective date of this Act
776	776	expires on the earlier of the second anniversary of the date of
777	777	issuance of the certificate or August 31, 2011.
778	778	SECTION 34. This Act takes effect September 1, 2009.