By: Nelson S.B. No. 791
A BILL TO BE ENTITLED
AN ACT
relating to the certified nurse aide registry and the regulation of
certified nurse aides by the Texas Board of Nursing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 301.002, Occupations Code, is amended by
adding Subdivision (6) to read as follows:
(6) "Certified nurse aide" means a person who holds a
certificate of registration issued under this chapter as a
certified nurse aide.
SECTION 2. Section 301.151, Occupations Code, is amended to
read as follows:
Sec. 301.151. GENERAL RULEMAKING AUTHORITY. The board may
adopt and enforce rules consistent with this chapter and necessary
to:
(1) perform its duties and conduct proceedings before
the board;
(2) regulate the practice of professional nursing and
vocational nursing and the practice of certified nurse aides;
(3) establish standards of professional conduct for
license and certificate holders under this chapter; [and]
(4) determine the scope of practice for certified
nurse aides; and
(5) determine whether an act constitutes the practice
of professional nursing or vocational nursing or the practice of
certified nurse aides.
SECTION 3. Section 301.157, Occupations Code, is amended by
adding Subsection (i) to read as follows:
(i) The board by rule shall:
(1) prescribe a program of study to qualify a person
for an initial certificate of registration as a certified nurse
aide; and
(2) approve training programs that meet the board's
requirements for the program of study.
SECTION 4. Subchapter D, Chapter 301, Occupations Code, is
amended by adding Section 301.1596 to read as follows:
Sec. 301.1596. CERTIFIED NURSE AIDE ADVISORY COMMITTEE.
(a) The board shall establish a certified nurse aide advisory
committee to advise the board on the regulation of certified nurse
aides.
(b) The advisory committee consists of at least 14 members
appointed by the executive director as follows:
(1) two nursing home representatives;
(2) two representatives from community colleges with
certified nurse aide training programs in this state;
(3) one hospital representative;
(4) one home health industry representative;
(5) three certified nurse aides, two with not more
than five years' experience as certified nurse aides and one with at
least five years' experience as a certified nurse aide;
(6) two representatives of certified nurse aide
training programs that are not conducted by a facility described by
Section 250.001, Health and Safety Code, or a community college;
(7) one registered nurse with at least two years'
experience in training certified nurse aides;
(8) one licensed vocational nurse with at least two
years' experience in working directly with certified nurse aides;
and
(9) one representative from the Department of Aging
and Disability Services who is familiar with certified nurse aide
training and regulation.
(c) The nurse aide advisory committee shall study and
provide recommendations to the board in the manner required by the
executive director on:
(1) improving communication between nurses and
certified nurse aides;
(2) clarifying the scope of practice of certified
nurse aides;
(3) clarifying the professional relationship between
nurses and certified nurse aides;
(4) improving the practice of certified nurse aides;
(5) improving the training for certified nurse aides
to more adequately meet the state health care system's acute and
long-term care demands;
(6) establishing the program of study and classroom
hours required for successful completion of a certified nurse aide
training program;
(7) listing the subjects to be included in the
training program curriculum to ensure the curriculum's continued
relevancy in health care, including consideration of curriculum
related to:
(A) successful strategies for dealing with
patients with dementia or other difficult patients;
(B) time management;
(C) task prioritizing;
(D) interpersonal communication skills;
(E) cultural sensitivity;
(F) teamwork training;
(G) psychosocial skills; and
(H) the aging process; and
(8) establishing the examination requirements for
issuance of a certificate of registration as a certified nurse aide
and for inclusion on the nurse aide registry.
(d) A member of the advisory committee is entitled to
reimbursement for travel expenses incurred for service on the
advisory committee as provided by the General Appropriations Act.
A member may not receive any compensation for that service.
(e) The advisory committee shall meet regularly as
necessary at the call of the presiding officer of the advisory
committee or at the call of the executive director.
(f) The board shall provide administrative support for the
advisory committee.
(g) Chapter 2110, Government Code, does not apply to the
advisory committee established under this section.
SECTION 5. Subchapter D, Chapter 301, Occupations Code, is
amended by adding Section 301.168 to read as follows:
Sec. 301.168. INTERAGENCY CONTRACT. (a) The board shall
enter into an interagency contract with the Health and Human
Services Commission and the Department of Aging and Disability
Services under which the board shall administer and maintain the
nurse aide registry established under Chapter 250, Health and
Safety Code.
(b) The interagency contract must provide that:
(1) the Department of Aging and Disability Services
has oversight authority over the nurse aide registry established
under Chapter 250, Health and Safety Code;
(2) the Department of Aging and Disability Services is
the only state agency authorized to place findings of abuse,
neglect, or exploitation in the registry as prescribed by federal
law;
(3) the board shall administer and maintain the daily
operation of the registry and receive the necessary federal funding
from the Department of Aging and Disability Services to reimburse
the board for the duties performed by the board; and
(4) the Department of Aging and Disability Services is
responsible for reimbursement provided to nursing home providers
for the cost of certified nurse aide training at the provider's
facilities.
SECTION 6. Chapter 301, Occupations Code, is amended by
adding Subchapter F-1 to read as follows:
SUBCHAPTER F-1. NURSE AIDES: REGISTRATION AND REGISTRATION
RENEWAL REQUIREMENTS
Sec. 301.281. CERTIFICATE OF REGISTRATION REQUIRED. (a) A
person may not engage in practice as a certified nurse aide or hold
out to the public that the person is a certified nurse aide or is
included on the nurse aide registry under Chapter 250, Health and
Safety Code, unless the person holds a certificate of registration
as a certified nurse aide under this chapter and is included on the
nurse aide registry under Chapter 250, Health and Safety Code.
(b) The board, in consultation with the nurse aide advisory
committee established under Section 301.1596, by rule shall:
(1) define the scope of practice of a certified nurse
aide, including the general criteria for delegation and supervision
of tasks performed by a certified nurse aide; and
(2) establish the qualifications for holding a
certificate of registration as a certified nurse aide and for
inclusion on the nurse aide registry.
(c) The qualifications established by board rule must
require a person applying to hold a certificate of registration as a
certified nurse aide and to be included on the nurse aide registry
to successfully complete:
(1) a board-approved training program that consists of
not less than 90 hours and not more than 359 hours of course work as
specified by board rule; and
(2) a competency examination on completion of the
training program.
Sec. 301.282. APPLICATION. Each person applying for a
certified nurse aide certificate of registration and for inclusion
on the nurse aide registry must submit to the board a sworn
application that demonstrates the applicant's qualifications under
this chapter, accompanied by evidence that the applicant:
(1) has good professional character;
(2) has successfully completed a training program
approved by the board; and
(3) has passed the examination approved by the board.
Sec. 301.283. ISSUANCE AND INCLUSION; FEE. (a) The board
shall issue a certificate of registration as a certified nurse aide
to each qualified person who applies to the board on the form
prescribed by the board and include the person on the nurse aide
registry.
(b) The board may charge a fee for the issuance of a copy of
a certificate of registration.
Sec. 301.284. TERM. (a) A certificate of registration as
a certified nurse aide issued under this subchapter is valid for two
years. The board shall include the expiration date on each
certificate of registration issued under this subchapter.
(b) Inclusion on the nurse aide registry is valid until
expiration of the certificate of registration.
Sec. 301.285. RENEWAL. (a) A person may renew the
person's certificate of registration as a certified nurse aide and
renew inclusion on the nurse aide registry by:
(1) submitting a renewal application to the board on
the form prescribed by the board before the registration expires;
(2) providing proof that the person has successfully
completed during the preceding two years the continuing education
hours required by Subsection (b); and
(3) complying with any other renewal requirements
adopted by the board.
(b) A person who is registered as a certified nurse aide and
who is included on the nurse aide registry shall annually in
accordance with board rules complete at least 12 hours of
continuing education.
(c) At least 30 days before the expiration of the person's
certificate of registration, the board shall send written notice of
the impending certificate expiration to the person at the person's
last known address according to the records of the board.
SECTION 7. Subsection (b), Section 301.407, Occupations
Code, is amended to read as follows:
(b) Unless expressly prohibited by state or federal law, a
state agency that has reason to believe that a nurse or nurse aide
has engaged in conduct subject to reporting shall report the nurse
or nurse aide in writing to the board or to a nursing peer review
committee under Chapter 303.
SECTION 8. Section 301.451, Occupations Code, is amended to
read as follows:
Sec. 301.451. CERTAIN PROHIBITED PRACTICES. A person may
not:
(1) sell, fraudulently obtain, or fraudulently
furnish a nursing diploma, license, certificate, renewal license or
certificate, or record;
(2) assist another person in selling, fraudulently
obtaining, or fraudulently furnishing a nursing diploma, license,
certificate, renewal license or certificate, or record;
(3) practice nursing or practice as a nurse aide under
a diploma, license, certificate, or record that was:
(A) obtained unlawfully or fraudulently; or
(B) signed or issued unlawfully or under false
representation; or
(4) practice nursing or practice as a nurse aide in a
period in which the person's license or certificate is suspended or
revoked.
SECTION 9. Subsection (b), Section 301.452, Occupations
Code, is amended to read as follows:
(b) A person is subject to denial of a license or
certificate or to disciplinary action under this subchapter for:
(1) a violation of this chapter, a rule or regulation
not inconsistent with this chapter, or an order issued under this
chapter;
(2) fraud or deceit in procuring or attempting to
procure a license to practice professional nursing or vocational
nursing or a nurse aide certificate;
(3) a conviction for, or placement on deferred
adjudication community supervision or deferred disposition for, a
felony or for a misdemeanor involving moral turpitude;
(4) conduct that results in the revocation of
probation imposed because of conviction for a felony or for a
misdemeanor involving moral turpitude;
(5) use of a nursing license, diploma, or permit, a
nurse aide certificate, or the transcript of such a document, that
has been fraudulently purchased, issued, counterfeited, or
materially altered;
(6) impersonating or acting as a proxy for another
person in the licensing examination required under Section 301.253
or 301.255;
(7) directly or indirectly aiding or abetting an
unlicensed or uncertified person in connection with the
unauthorized practice of nursing or unauthorized practice as a
nurse aide;
(8) revocation, suspension, or denial of, or any other
action relating to, the person's license, certificate, or privilege
to practice nursing or to practice as a nurse aide in another
jurisdiction;
(9) intemperate use of alcohol or drugs that the board
determines endangers or could endanger a patient;
(10) unprofessional or dishonorable conduct that, in
the board's opinion, is likely to deceive, defraud, or injure a
patient or the public;
(11) adjudication of mental incompetency;
(12) lack of fitness to practice because of a mental or
physical health condition that could result in injury to a patient
or the public; or
(13) failure to care adequately for a patient or to
conform to the minimum standards of acceptable nursing practice in
a manner that, in the board's opinion, exposes a patient or other
person unnecessarily to risk of harm.
SECTION 10. Section 301.453, Occupations Code, is amended
to read as follows:
Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
DISCIPLINE. (a) If the board determines that a person has
committed an act listed in Section 301.452(b), the board shall
enter an order imposing one or more of the following:
(1) denial of the person's application for a license or
certificate, license or certificate renewal, or temporary permit;
(2) issuance of a written warning;
(3) administration of a public reprimand;
(4) limitation or restriction of the person's license
or certificate, including:
(A) limiting to or excluding from the person's
practice one or more specified activities of nursing or as a nurse
aide; or
(B) stipulating periodic board review;
(5) suspension of the person's license or certificate
for a period not to exceed five years;
(6) revocation of the person's license or certificate;
or
(7) assessment of a fine.
(b) In addition to or instead of an action under Subsection
(a), the board, by order, may require the person to:
(1) submit to care, counseling, or treatment by a
health provider designated by the board as a condition for the
issuance or renewal of a license or certificate;
(2) participate in a program of education or
counseling prescribed by the board;
(3) practice for a specified period under the
direction of a registered nurse or vocational nurse designated by
the board; or
(4) perform public service the board considers
appropriate.
(c) The board may probate any penalty imposed on a nurse or
nurse aide and may accept the voluntary surrender of a license or
certificate. The board may not reinstate a surrendered license or
certificate unless it determines that the person is competent to
resume practice.
(d) If the board suspends, revokes, or accepts surrender of
a license or certificate, the board may impose conditions for
reinstatement that the person must satisfy before the board may
issue an unrestricted license or certificate.
SECTION 11. Subsection (c), Section 301.4531, Occupations
Code, is amended to read as follows:
(c) In the case of a person described by:
(1) Subsection (b)(1)(A), the board shall consider
taking a more severe disciplinary action, including revocation of
the person's license or certificate, than the disciplinary action
that would be taken for a single violation; and
(2) Subsection (b)(1)(B), the board shall consider
taking a more severe disciplinary action, including revocation of
the person's license or certificate, than the disciplinary action
that would be taken for a person who has not previously been the
subject of disciplinary action by the board.
SECTION 12. Section 301.4535, Occupations Code, is amended
to read as follows:
Sec. 301.4535. REQUIRED SUSPENSION, REVOCATION, OR REFUSAL
OF LICENSE OR CERTIFICATE FOR CERTAIN OFFENSES. (a) The board
shall suspend a nurse's license or a nurse aide's certificate or
refuse to issue a license or certificate to an applicant on proof
that the nurse, nurse aide, or applicant has been initially
convicted of:
(1) murder under Section 19.02, Penal Code, capital
murder under Section 19.03, Penal Code, or manslaughter under
Section 19.04, Penal Code;
(2) kidnapping or unlawful restraint under Chapter 20,
Penal Code, and the offense was punished as a felony or state jail
felony;
(3) sexual assault under Section 22.011, Penal Code;
(4) aggravated sexual assault under Section 22.021,
Penal Code;
(5) continuous sexual abuse of young child or children
under Section 21.02, Penal Code, or indecency with a child under
Section 21.11, Penal Code;
(6) aggravated assault under Section 22.02, Penal
Code;
(7) intentionally, knowingly, or recklessly injuring
a child, elderly individual, or disabled individual under Section
22.04, Penal Code;
(8) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(9) aiding suicide under Section 22.08, Penal Code,
and the offense was punished as a state jail felony;
(10) an offense under Section 25.07, Penal Code,
punished as a felony;
(11) an offense under Section 25.071, Penal Code,
punished as a felony;
(12) an agreement to abduct a child from custody under
Section 25.031, Penal Code;
(13) the sale or purchase of a child under Section
25.08, Penal Code;
(14) robbery under Section 29.02, Penal Code;
(15) aggravated robbery under Section 29.03, Penal
Code;
(16) an offense for which a defendant is required to
register as a sex offender under Chapter 62, Code of Criminal
Procedure; or
(17) an offense under the law of another state,
federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an
offense listed in this subsection.
(b) On final conviction or a plea of guilty or nolo
contendere for an offense listed in Subsection (a), the board, as
appropriate, may not issue a license or certificate to an
applicant, shall refuse to renew a license or certificate, or shall
revoke a license or certificate if the applicant or license or
certificate holder did not previously disclose the conviction or
plea and the fifth anniversary of the date the person successfully
completed community supervision or parole has not occurred.
(c) A person is not eligible for an initial license or
certificate or for reinstatement or endorsement of a license to
practice nursing or a certificate as a nurse aide in this state
before the fifth anniversary of the date the person successfully
completed and was dismissed from community supervision or parole
for an offense described by Subsection (a).
SECTION 13. Subsections (a), (c), and (e), Section 301.454,
Occupations Code, are amended to read as follows:
(a) Except in the case of a temporary suspension authorized
under Section 301.455 or an action taken in accordance with an
agreement between the board and a license or certificate holder,
the board may not initiate a disciplinary action relating to a
license or certificate unless:
(1) the board has served notice to the license or
certificate holder of the facts or conduct alleged to warrant the
intended action; and
(2) the license or certificate holder has been given
an opportunity, in writing or through an informal meeting, to show
compliance with all requirements of law for the retention of the
license or certificate.
(c) A person is entitled to a hearing conducted by the State
Office of Administrative Hearings if the board proposes to:
(1) refuse to admit the person to examination;
(2) refuse to issue a license, certificate, or
temporary permit;
(3) refuse to renew a license or certificate; or
(4) suspend or revoke the person's license,
certificate, or permit.
(e) Notwithstanding Subsection (a), a person is not
entitled to a hearing on a refusal to renew a license or certificate
if the person:
(1) fails to submit a renewal application; or
(2) submits an application that:
(A) is incomplete;
(B) shows on its face that the person does not
meet the renewal requirements; or
(C) is not accompanied by the correct fee.
SECTION 14. The heading of Section 301.455, Occupations
Code, is amended to read as follows:
Sec. 301.455. TEMPORARY LICENSE OR CERTIFICATE SUSPENSION
OR RESTRICTION.
SECTION 15. Subsections (a) and (b), Section 301.455,
Occupations Code, are amended to read as follows:
(a) The license of a nurse or the certificate of a nurse aide
shall be temporarily suspended or restricted on a determination by
a majority of the board or a three-member committee of board members
designated by the board that, from the evidence or information
presented, the continued practice of the nurse or nurse aide would
constitute a continuing and imminent threat to the public welfare.
(b) A license or certificate may be temporarily suspended or
restricted under this section without notice or hearing on the
complaint if:
(1) institution of proceedings for a hearing before
the State Office of Administrative Hearings is initiated
simultaneously with the temporary suspension or determination to
restrict; and
(2) a hearing is held as soon as possible under this
chapter and Chapter 2001, Government Code.
SECTION 16. The heading of Section 301.457, Occupations
Code, is amended to read as follows:
Sec. 301.457. COMPLAINT AND INVESTIGATION RELATED TO
NURSES.
SECTION 17. Subchapter J, Chapter 301, Occupations Code, is
amended by adding Section 301.4571 to read as follows:
Sec. 301.4571. COMPLAINT AND INVESTIGATION RELATED TO NURSE
AIDES. (a) The board or any person may initiate a proceeding under
this subchapter by filing with the board a complaint against a nurse
aide. The complaint must be in writing and signed by the
complainant.
(b) Except as otherwise provided by this section, the board
or a person authorized by the board shall conduct each
investigation. Each complaint against a nurse aide that requires a
determination of competency shall be reviewed by a board member,
consultant, or employee with a nursing background the board
considers sufficient.
(c) On the filing of a complaint, the board:
(1) may conduct a preliminary investigation into the
identity of the nurse aide named or described in the complaint;
(2) shall make a timely and appropriate preliminary
investigation of the complaint; and
(3) may issue a warning or reprimand to the nurse aide.
(d) After any preliminary investigation to determine the
identity of the subject of the complaint, unless it would
jeopardize an investigation, the board shall notify the nurse aide
that a complaint has been filed and the nature of the complaint. If
the investigation reveals probable cause to take further
disciplinary action, the board shall either attempt an informal
disposition of the complaint or file a formal charge against the
nurse aide stating the provision of this chapter or board rule that
is alleged to have been violated and a brief description of each act
or omission that constitutes the violation.
(e) The board shall conduct an investigation of the
complaint to determine:
(1) whether the nurse aide's continued practice poses
a risk of harm to clients or other persons; and
(2) whether probable cause exists that a nurse aide
committed an act listed in Section 301.452(b) or that violates
other law.
(f) In making a determination under Subsection (e), the
board shall review the evidence to determine the extent to which a
deficiency in care by the nurse aide was the result of deficiencies
in the nurse aide's judgment, knowledge, training, or skill rather
than other factors beyond the nurse aide's control. A
determination that a deficiency in care is attributable to a nurse
aide must be based on the extent to which the nurse aide's conduct
was the result of a deficiency in the nurse aide's judgment,
knowledge, training, or skill.
(g) If the board determines after investigating a complaint
under Subsection (e) that there is reason to believe that a nurse
aide's deficiency in care was the result of a factor beyond the
nurse aide's control, the board shall report that determination to
the patient safety committee at the facility where the nurse aide's
deficiency in care occurred or, if the facility does not have a
patient safety committee, to the chief nursing officer.
(h) The board and the Department of Aging and Disability
Services shall share investigation information, including files,
reports, witness lists, findings, and any other pertinent
information related to the investigation of a nurse aide by the
board or department.
SECTION 18. Subsections (a) and (c), Section 301.458,
Occupations Code, are amended to read as follows:
(a) Unless there is an agreed disposition of the complaint
under Section 301.463, and if probable cause is found under Section
301.457(e)(2) or Section 301.4571(e)(2), the board or the board's
authorized representative shall initiate proceedings by filing
formal charges against the nurse or nurse aide.
(c) A copy of the formal charge shall be served on the nurse
or nurse aide, or on the nurse's or nurse aide's counsel of record.
SECTION 19. Subsection (b), Section 301.459, Occupations
Code, is amended to read as follows:
(b) In any hearing under this section, a nurse or nurse aide
is entitled to appear in person or by counsel.
SECTION 20. Subsection (a), Section 301.460, Occupations
Code, is amended to read as follows:
(a) Except for good cause shown for delay and subject to any
other privilege or restriction set forth by statute, rule, or legal
precedent, the board shall, not later than the 30th day after the
date the board receives a written request from a license or
certificate holder who is the subject of a formal charge filed under
Section 301.458 or from the license or certificate holder's counsel
of record, provide the license or certificate holder with access
to:
(1) all known exculpatory information in the board's
possession; and
(2) information in the board's possession that the
board intends to offer into evidence in presenting its case in chief
at the contested hearing on the complaint.
SECTION 21. Section 301.462, Occupations Code, is amended
to read as follows:
Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE OR
CERTIFICATE. (a) The board may revoke a nurse's license without
formal charges, notice, or opportunity of hearing if the nurse
voluntarily surrenders the nurse's license to the board and
executes a sworn statement that the nurse does not desire to be
licensed.
(b) The board may revoke a nurse aide's certificate without
formal charges, notice, or opportunity of hearing if the nurse aide
voluntarily surrenders the nurse aide's certificate to the board
and executes a sworn statement that the nurse aide does not desire
to be certified.
SECTION 22. Subsection (b), Section 301.464, Occupations
Code, is amended to read as follows:
(b) Rules adopted under this section must:
(1) provide the complainant and the license or
certificate holder an opportunity to be heard; and
(2) require the presence of a representative of the
board's legal staff or of the attorney general to advise the board
or the board's employees.
SECTION 23. Section 301.466, Occupations Code, is amended
to read as follows:
Sec. 301.466. CONFIDENTIALITY. (a) A complaint and
investigation concerning a nurse or nurse aide under this
subchapter and all information and material compiled by the board
in connection with the complaint and investigation are:
(1) confidential and not subject to disclosure under
Chapter 552, Government Code; and
(2) not subject to disclosure, discovery, subpoena, or
other means of legal compulsion for release to anyone other than the
board or a board employee or agent involved in license or
certificate holder discipline.
(b) Notwithstanding Subsection (a), information regarding a
complaint and an investigation may be disclosed to:
(1) a person involved with the board in a disciplinary
action against the nurse or nurse aide;
(2) a nursing licensing, certifying, or disciplinary
board in another jurisdiction;
(3) a peer assistance program approved by the board
under Chapter 467, Health and Safety Code;
(4) a law enforcement agency; or
(5) a person engaged in bona fide research, if all
information identifying a specific individual has been deleted.
(c) The filing of formal charges against a nurse or nurse
aide by the board, the nature of those charges, disciplinary
proceedings of the board, and final disciplinary actions, including
warnings and reprimands, by the board are not confidential and are
subject to disclosure in accordance with Chapter 552, Government
Code.
SECTION 24. Subsections (a) and (b), Section 301.467,
Occupations Code, are amended to read as follows:
(a) On application, the board may reinstate:
(1) a license to practice professional nursing or
vocational nursing to a person whose license has been revoked,
suspended, or surrendered; or
(2) a certificate of a nurse aide to a person whose
certificate has been revoked, suspended, or surrendered.
(b) An application to reinstate a revoked license or
certificate:
(1) may not be made before the first anniversary of the
date of the revocation; and
(2) must be made in the manner and form the board
requires.
SECTION 25. Section 301.468, Occupations Code, is amended
by amending Subsections (a) and (c) and adding Subsections (a-1)
and (a-2) to read as follows:
(a) The board may determine that an order denying a license
or certificate application or suspending a license or certificate
be probated.
(a-1) A person subject to a probation order under Subsection
(a) related to a license shall conform to each condition the board
sets as the terms of probation, including a condition:
(1) limiting the practice of the person to, or
excluding, one or more specified activities of professional nursing
or vocational nursing; or
(2) requiring the person to submit to supervision,
care, counseling, or treatment by a practitioner designated by the
board.
(a-2) A person subject to a probation order under Subsection
(a) related to a certificate shall conform to each condition the
board sets as the terms of probation, including a condition:
(1) limiting the practice of the person to, or
excluding, one or more specified activities performed by nurse
aides; or
(2) requiring the person to submit to supervision,
care, counseling, or treatment by a practitioner designated by the
board.
(c) At any time while the person remains subject to the
probation order, the board may hold a hearing and rescind the
probation and enforce the board's original action in denying or
suspending the license or certificate. The hearing shall be called
by the presiding officer of the board, who shall issue a notice to
be served on the person or the person's counsel not later than the
20th day before the date scheduled for the hearing that:
(1) sets the time and place for the hearing; and
(2) contains the charges or complaints against the
probationer.
SECTION 26. Section 301.469, Occupations Code, is amended
to read as follows:
Sec. 301.469. NOTICE OF FINAL ACTION. If the board takes a
final disciplinary action, including a warning or reprimand,
against a nurse or nurse aide under this subchapter, the board shall
immediately send a copy of the board's final order to the nurse or
nurse aide and to the last known employer of the nurse or nurse
aide.
SECTION 27. Section 301.470, Occupations Code, is amended
to read as follows:
Sec. 301.470. REFUND. (a) Subject to Subsection (b), the
board may order a license or certificate holder to pay a refund to a
consumer as provided in an agreement resulting from an informal
settlement conference instead of or in addition to imposing an
administrative penalty under this chapter.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to a nurse or nurse aide for a
service regulated by this chapter or the actual amount stolen or
defrauded from a patient by the nurse or nurse aide. The board may
not require payment of other damages or estimate harm in a refund
order.
SECTION 28. Section 301.471, Occupations Code, is amended
by adding Subsection (a-1) and amending Subsection (b) to read as
follows:
(a-1) If it appears to the board that a person who is not
certified as a nurse aide under this chapter is violating this
chapter, a rule adopted under this chapter, or another state
statute or rule relating to the practice of a nurse aide and the
board determines that the unauthorized activity constitutes a
clear, imminent, or continuing threat to the public health and
safety, the board may:
(1) issue an emergency cease and desist order
prohibiting the person from engaging in the activity; and
(2) report the activity to a local law enforcement
agency or the attorney general for prosecution.
(b) An order issued under Subsection (a) or (a-1) must:
(1) be delivered on issuance to the person affected by
the order by personal delivery or registered or certified mail,
return receipt requested, to the person's last known address;
(2) state the acts or practices alleged to be an
unauthorized activity and require the person immediately to cease
and desist from the unauthorized activity; and
(3) contain a notice that a request for hearing may be
filed under this section.
SECTION 29. Section 301.552, Occupations Code, is amended
to read as follows:
Sec. 301.552. MONITORING OF LICENSE OR CERTIFICATE HOLDER.
The board by rule shall develop a system for monitoring the
compliance of license and certificate holders with the requirements
of this chapter. Rules adopted under this section must include
procedures to:
(1) monitor for compliance a license or certificate
holder who is ordered by the board to perform certain acts; and
(2) identify and monitor each license or certificate
holder who represents a risk to the public.
SECTION 30. Section 250.001, Health and Safety Code, is
amended by amending Subdivisions (1) and (3) and adding Subdivision
(6) to read as follows:
(1) "Nurse aide registry" means a list of certified
nurse aides maintained and administered by the Texas Board of
Nursing as provided by Chapter 301, Occupations Code, under the
oversight of the [Texas] Department of Aging and Disability [Human]
Services and maintained in compliance with [of nurse aides under]
the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
100-203).
(3) "Facility" means:
(A) a nursing home, custodial care home, or other
institution licensed by the department [Texas Department of Human
Services] under Chapter 242;
(B) an assisted living facility licensed by the
department [Texas Department of Human Services] under Chapter 247;
(C) a home and community support services agency
licensed under Chapter 142;
(D) an adult day care facility licensed by the
department [Texas Department of Human Services] under Chapter 103,
Human Resources Code;
(E) a facility for persons with mental
retardation licensed under Chapter 252;
(F) an adult foster care provider that contracts
with the department [Texas Department of Human Services];
(G) a facility that provides mental health
services and that is operated by or contracts with the [Texas]
Department of State [Mental] Health Services [and Mental
Retardation];
(H) a local mental health or mental retardation
authority designated under Section 533.035; or
(I) a person exempt from licensing under Section
142.003(a)(19).
(6) "Department" means the Department of Aging and
Disability Services.
SECTION 31. Chapter 250, Health and Safety Code, is amended
by adding Section 250.0011 to read as follows:
Sec. 250.0011. NURSE AIDE REGISTRY. (a) The department
shall establish a registry of certified nurse aides.
(b) The department shall oversee the nurse aide registry
administered and maintained by the Texas Board of Nursing under
Chapter 301, Occupations Code, and under the interagency contract
between the department, the Health and Human Services Commission,
and the board.
(c) The department shall place any finding of abuse,
neglect, or exploitation by a certified nurse aide in the registry
and in the employee misconduct registry maintained under Chapter
253.
SECTION 32. (a) Not later than October 1, 2009, the
executive director of the Texas Board of Nursing shall appoint the
members to the nurse aide advisory committee established by Section
301.1596, Occupations Code, as added by this Act.
(b) Not later than January 1, 2010, the Texas Board of
Nursing, the Health and Human Services Commission, and the
Department of Aging and Disability Services shall enter into an
interagency contract as required by Section 301.168, Occupations
Code, as added by this Act.
(c) Not later than May 1, 2010, the Texas Board of Nursing
shall:
(1) establish the qualifications for issuance of a
certificate of registration and renewal of a certificate of
registration as a certified nurse aide; and
(2) adopt the rules necessary to implement the changes
in law made by this Act.
SECTION 33. (a) A person listed as a certified nurse aide
on the nurse aide registry under Chapter 250, Health and Safety
Code, on the effective date of this Act is entitled to renew a
certificate of registration as a certified nurse aide and renew
inclusion on the nurse aide registry without fulfilling any
additional educational training or examination requirements
established by the Texas Board of Nursing under Chapter 301,
Occupations Code, as amended by this Act, if the person has the
other qualifications required by the board and Chapter 301,
Occupations Code, and if, before August 31, 2010, the person
submits a renewal application as required by Chapter 301.
(b) Chapter 301, Occupations Code, as amended by this Act,
applies only to the issuance of a certificate of registration or
renewal of a certificate of registration as a certified nurse aide
and the inclusion or renewal of inclusion on the nurse aide registry
under Chapter 250, Health and Safety Code, as amended by this Act,
on or after September 1, 2010.
(c) Except as provided by Subsection (d) of this section, an
application for issuance of a certificate of registration or
renewal of a certificate of registration as a certified nurse aide
under Chapter 301, Occupations Code, as amended by this Act, and the
inclusion or renewal of inclusion on the nurse aide registry under
Chapter 250, Health and Safety Code, as amended by this Act, before
the effective date of this Act is covered by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
(d) The Department of Aging and Disability Services shall
include the expiration date, as required by Chapter 301,
Occupations Code, as amended by this Act, on each certified nurse
aide certificate of registration issued or renewed by the
department on or after the effective date of this Act. A certified
nurse aide certificate of registration issued by the Department of
Aging and Disability Services before the effective date of this Act
expires on the earlier of the second anniversary of the date of
issuance of the certificate or August 31, 2011.
SECTION 34. This Act takes effect September 1, 2009.