82R6650 CJC-F
By: Thompson H.B. No. 2427
A BILL TO BE ENTITLED
AN ACT
relating to the rights and duties of hospital patients and certain
health care providers; providing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 241, Health and Safety Code, is amended
by adding Subchapter I to read as follows:
SUBCHAPTER I. HOSPITAL PATIENT PROTECTION ACT
PART 1. GENERAL PROVISIONS
Sec. 241.301. SHORT TITLE. This subchapter may be cited as
the Hospital Patient Protection Act.
Sec. 241.302. APPLICABILITY TO CHAPTER. Unless
specifically superseded by a provision of this subchapter, the
definitions and provisions of Subchapters A through G apply to this
subchapter.
Sec. 241.303. DEFINITIONS. In this subchapter:
(1) "Acuity-based patient classification system" or
"acuity system" means an established measurement tool that:
(A) predicts registered nursing care
requirements for individual patients based on the severity of
patient illness, the need for specialized equipment and technology,
the intensity of required nursing interventions, and the complexity
of clinical nursing judgment required to design, implement, and
evaluate the patient's nursing care plan consistent with
professional standards, the ability for self-care, including
motor, sensory, and cognitive deficits, and the need for advocacy
intervention;
(B) details the amount of nursing care needed and
the additional number of direct care registered nurses and other
licensed and unlicensed nursing staff the hospital must assign,
based on the independent professional judgment of a direct care
registered nurse, to meet each patient's needs at all times; and
(C) is stated in terms that can be readily used
and understood by direct care nursing staff.
(2) "Artificial life support" means a system that uses
medical technology to aid, support, or replace a vital function of
the body that has been seriously damaged.
(3) "Clinical judgment" means the application of a
direct care registered nurse's knowledge, skill, expertise, and
experience in making independent decisions about patient care.
(4) "Clinical supervision" means the assignment of
patient care tasks to other licensed nursing staff or to unlicensed
staff under the supervision of a direct care registered nurse.
(5) "Competence" means the ability of a direct care
registered nurse to act and integrate the knowledge, skills,
abilities, and independent professional judgment that form the
basis for safe, therapeutic, and effective patient care.
(6) "Critical access hospital," as defined by 42
U.S.C. Section 1395x(mm), means a health facility designated under
a Medicare rural hospital flexibility program established by this
state.
(7) "Critical care unit" or "intensive care unit"
means a nursing unit of an acute care hospital that is established
to safeguard and protect patients whose severity of illness
requires continuous monitoring, evaluation, and specialized
intervention, and to educate the patient or the patient's family or
other representative about the patient's medical condition. The
term includes an intensive care unit, a burn center, a coronary care
unit, or an acute respiratory unit.
(8) "Direct care registered nurse" or "direct care
professional nurse" means a registered nurse licensed by the Texas
Board of Nursing to engage in professional nursing under Chapter
301, Occupations Code, who has documented clinical competence and
has accepted a direct, hands-on patient care assignment to
implement medical and nursing regimens and provide related clinical
supervision of patient care while exercising independent
professional judgment at all times in the best interest of the
patient.
(9) "Health care facility" means any facility, place,
or building that is organized, maintained, and operated for the
diagnosis, care, prevention, and treatment of physical or mental
human illness, including convalescence, rehabilitation, and
antepartum and postpartum care, for one or more persons and to which
a person is generally admitted for at least a 24-hour stay. The
term includes general hospitals and special hospitals.
(10) "Hospital" has the meaning assigned by Section
241.003 and includes a critical access hospital and a long-term
acute care hospital.
(11) "Hospital unit" or "clinical patient care area"
means an intensive care or critical care unit, burn unit, labor and
delivery room, antepartum and postpartum unit, newborn nursery,
post-anesthesia service area, emergency department, operating
room, pediatric unit, step-down or intermediate care unit,
specialty care unit, telemetry unit, general medical or surgical
care unit, psychiatric unit, rehabilitation unit, or skilled
nursing facility unit.
(12) "Long-term acute care hospital" means any
hospital or health care facility that specializes in providing
acute care to medically complex patients with an anticipated length
of stay of more than 25 days. The term includes freestanding and
hospital-within-hospital models of long-term acute care
facilities.
(13) "Medical or surgical unit" means a unit
established to safeguard and protect patients whose severity of
illness requires continuous monitoring, assessment, and
specialized intervention and to educate the patient or the
patient's family or other representative about the patient's
medical condition. The term may include units:
(A) in which patients require less than intensive
care or step-down care and receive 24-hour inpatient general
medical care, post-surgical care, or both inpatient general medical
and post-surgical care; and
(B) with mixed patient populations of diverse
diagnoses and diverse age groups excluding pediatric patients.
(14) "Nurse" has the meaning provided by Section
301.002, Occupations Code.
(15) "Patient assessment" means the direct care
registered nurse's use of critical thinking in an intellectually
disciplined process that includes actively and skillfully
interpreting, applying, analyzing, synthesizing, and evaluating
data obtained through the direct care registered nurse's direct
observation and communication with others.
(16) "Professional judgment" means the intellectual,
educated, informed, and experienced process that the direct care
registered nurse exercises in forming an opinion and reaching a
clinical decision, in the patient's best interest, based on
analysis of data, information, and scientific evidence.
(17) "Rehabilitation unit" means a functional
clinical unit that provides rehabilitation services that restore an
ill or injured patient to the highest level of self-sufficiency or
gainful employment of which the patient is capable in the shortest
possible time, compatible with the patient's physical,
intellectual, and emotional or psychological capabilities and in
accordance with planned goals and objectives.
(18) "Skilled nursing facility" means a functional
clinical unit that provides:
(A) skilled nursing care and supportive care to
patients whose primary need is for skilled nursing care on a
long-term basis and who are admitted after at least a 48-hour period
of continuous inpatient care; and
(B) medical, nursing, dietary, and
pharmaceutical services and an activity program.
(19) "Specialty care unit" means a unit that:
(A) is established to safeguard and protect
patients whose severity of illness requires continuous monitoring,
assessment, and specialized intervention and to educate the patient
or the patient's family or other representative about the patient's
medical condition;
(B) provides comprehensive care for a specific
condition or disease that is not available in medical or surgical
units; and
(C) is not otherwise covered by the definitions
in this section.
(20) "Step-down or intermediate intensive care unit"
means a unit established to:
(A) safeguard and protect patients whose
severity of illness requires continuous monitoring, assessment,
and specialized intervention and to educate the patient or the
patient's family or other representative about the patient's
medical condition; and
(B) provide care to patients with moderate or
potentially severe physiologic instability requiring technical
support but not necessarily artificial life support.
(21) "Technical support" means the use of specialized
equipment by a direct care registered nurse for invasive
monitoring, telemetry, and mechanical ventilation for the
immediate amelioration or remediation of severe pathology for those
patients requiring less care than intensive care but more than
medical or surgical care.
(22) "Telemetry unit" means a unit that:
(A) is established to safeguard and protect
patients whose severity of illness requires continuous monitoring,
assessment, and specialized intervention and to educate the patient
or the patient's family or other representative about the patient's
medical condition; and
(B) is designated for the electronic monitoring,
recording, retrieval, and display of cardiac electrical signals.
[Sections 241.304-241.350 reserved for expansion]
PART 2. HOSPITAL NURSING PRACTICE STANDARDS
Sec. 241.351. COMPETENCY REQUIRED. (a) A hospital must
document, for each direct care registered nurse employed by the
hospital, that the nurse:
(1) understands the statutory duties and
responsibilities of registered nurses prescribed by Chapter 301,
Occupations Code, and the rules adopted under that chapter; and
(2) has been provided with and understands the
standards required by this part that are specific to each hospital
unit in the hospital.
(b) A hospital may not assign a direct care registered nurse
to a nursing unit or clinical area until the hospital complies with
Subsection (a) in relation to that nurse.
Sec. 241.352. GENERAL REQUIREMENTS RELATED TO STAFFING
RATIOS. (a) Each hospital shall implement a nurse staffing policy
that includes:
(1) the minimum staffing by direct care registered
nurses as determined in accordance with the requirements prescribed
by Sections 241.353, 241.354, 241.355, and 241.356;
(2) the clinical unit direct care registered
nurse-to-patient ratios prescribed by Section 241.357; and
(3) an acuity-based patient classification system to
determine minimum staffing requirements for patient care tasks not
requiring a direct care registered nurse.
(b) Except as provided by Section 241.359, the direct care
registered nurse-to-patient ratios required by this part represent
the maximum number of patients that a hospital may assign to one
direct care registered nurse at any time.
Sec. 241.353. RESTRICTIONS ON AVERAGING AND MANDATORY
OVERTIME; RELIEF DURING ROUTINE ABSENCES; LAYOFFS. (a) A hospital
may not average the number of patients and the total number of
direct care registered nurses assigned to patients in a clinical
unit during any one shift or over any period for the purposes of
meeting the requirements prescribed by this part.
(b) A hospital may not impose mandatory overtime
requirements to meet the hospital unit direct care registered
nurse-to-patient ratios required by this part.
(c) A hospital shall ensure that only a direct care
registered nurse may relieve another direct care registered nurse
during breaks, meals, and routine absences from a clinical unit.
(d) A hospital may not impose layoffs of licensed practical
nurses, licensed psychiatric technicians, certified nursing
assistants, or other ancillary support staff to meet the clinical
unit direct care registered nurse-to-patient ratios required by
this part.
Sec. 241.354. EMERGENCY CARE; NEWBORN INTENSIVE CARE. (a)
Only direct care registered nurses may be assigned to triage or
critical trauma patients.
(b) The direct care registered nurse-to-patient ratio for
critical care patients in an emergency department shall be one to
two or fewer at all times.
(c) At least two direct care registered nurses must be
physically present in an emergency department when a patient is
present.
(d) Triage, radio, or specialty or flight registered nurses
may not be counted in the calculation of direct care registered
nurse-to-patient ratios.
(e) Triage registered nurses may not be assigned the
responsibility for the base radio.
(f) Only a direct care registered nurse may be assigned to
an intensive care newborn nursery service unit.
(g) The direct care nurse-to-patient ratio for newborns in
intensive care newborn nursery service units shall be one to two or
fewer at all times.
Sec. 241.355. LABOR AND DELIVERY; ANTEPARTUM AND POSTPARTUM
CARE; NURSERIES. (a) The direct care nurse-to-patient ratio shall
be:
(1) one to one for active labor patients and patients
with medical or obstetrical complications during the initiation of
epidural anesthesia and circulation for cesarean delivery;
(2) one to three or fewer for antepartum patients who
are not in active labor;
(3) one to four or fewer for postpartum women or
post-surgical gynecological patients;
(4) one to five for patients in a well-baby nursery;
(5) one to one for unstable newborns and newborns in
the resuscitation period; and
(6) one to four or fewer for recently born infants.
(b) In the event of cesarean delivery, the total number of
mothers plus infants assigned to a direct care registered nurse may
not exceed four.
(c) In the event of multiple births, the total number of
mothers plus infants assigned to a direct care registered nurse may
not exceed six.
Sec. 241.356. CONSCIOUS SEDATION. The direct care
registered nurse-to-patient ratio for patients receiving conscious
sedation shall be one to one or fewer at all times.
Sec. 241.357. MINIMUM DIRECT CARE REGISTERED
NURSE-TO-PATIENT RATIOS GENERALLY. A hospital's staffing policy
shall provide that, at all times during each shift within a unit of
the hospital, a direct care registered nurse is assigned to not more
than the following number of patients per unit:
(1) one patient in trauma or emergency units;
(2) one patient in operating room units, with at least
one direct care registered nurse assigned to the duties of the
circulating registered nurse and a minimum of one additional person
as a scrub assistant for each patient-occupied operating room;
(3) two patients in critical care units, including
neonatal intensive care units, emergency critical care and
intensive care units, labor and delivery units, coronary care
units, acute respiratory care units, post-anesthesia units
regardless of the type of anesthesia received, burn units, and
immediate postpartum patients;
(4) three patients in emergency room units, step-down
or intermediate intensive care units, pediatric units, telemetry
units, and combined labor, delivery, and postpartum units;
(5) four patients in medical-surgical units,
antepartum units, intermediate care nursery units, psychiatric
units, and pre-surgical and other specialty care units;
(6) five patients in rehabilitation units and skilled
nursing units;
(7) six patients in well-baby nursery units; and
(8) three couplets in postpartum units.
Sec. 241.358. ADDITIONAL CONDITIONS AND RESTRICTIONS. (a)
Identifying a unit or clinical patient care area by a name other
than those used in this subchapter does not affect a requirement to
staff at the direct care registered nurse-to-patient ratios
established by this part.
(b) Patients may be cared for only in units or clinical
patient care areas where the type of care and direct care registered
nurse-to-patient ratios meet the requirements and needs of each
patient. The use of patient acuity-adjustable units is strictly
prohibited.
(c) Video cameras, remote monitoring, or any form of
electronic visualization of a patient may not be used as a
substitute for direct observation and care provided by a direct
care registered nurse as required by this subchapter.
(d) A hospital may not assign unlicensed personnel to
perform a task that requires the clinical assessment, judgment, and
skill of a licensed registered nurse, including:
(1) nursing activities that require nursing
assessment and judgment during implementation;
(2) physical, psychological, and social assessments
that require nursing judgment, intervention, referral, or
follow-up;
(3) formulation of a plan of nursing care and an
evaluation of the patient's response to the care provided,
including administration of medication, venipuncture or
intravenous therapy, or parenteral or tube feedings;
(4) invasive procedures, including inserting
nasogastric tubes, inserting catheters, or tracheal suctioning;
and
(5) educating patients and their families concerning
the patient's medical condition, including post-discharge care.
(e) A hospital may not assign unlicensed staff to perform a
direct care registered nurse function under the clinical
supervision of a direct care registered nurse.
Sec. 241.359. EXCEPTION IN EMERGENCY. The requirements
established by this part do not apply during a declared state of
emergency if a hospital is requested or expected to provide an
exceptional level of emergency or other medical services.
Sec. 241.360. ACUITY-BASED PATIENT CLASSIFICATION SYSTEM.
(a) In addition to the direct care registered nurse-to-patient
ratio requirements established by this part, each hospital shall
implement an acuity-based patient classification system to
determine the additional nursing staff necessary to meet patient
care needs in each unit.
(b) In this section, "additional nursing staff" means
licensed vocational nurses, licensed psychiatric technicians, and
certified nursing assistants.
Sec. 241.361. TRANSPARENCY. (a) An acuity-based patient
classification system adopted by a hospital under this part must:
(1) disclose the methodology used to predict nurse
staffing;
(2) identify each factor, assumption, and value used
in applying that methodology;
(3) explain the scientific and empirical basis for
each assumption and value; and
(4) include a certification, executed by the chief
nursing officer, that the disclosures made under this section are
true and complete.
(b) The classification system required by Subsection (a)
shall be submitted to the department by a hospital as a mandatory
condition of hospital licensure.
(c) A hospital's acuity-based patient classification system
shall be available for public inspection in its entirety in
accordance with procedures established by appropriate
administrative rules promulgated by the department consistent with
the purposes of this subchapter.
Sec. 241.362. WRITTEN NURSE STAFFING PLAN. The chief
nursing officer or the chief nursing officer's designee shall
develop a written nurse staffing plan for each patient care unit in
the hospital. The plan must specify an adequate number of direct
care registered nurses necessary in each unit to serve patient care
needs. The plan may not specify a staffing level for direct care
registered nurses that falls below the requirements prescribed by
Sections 241.353, 241.354, 241.355, 241.356, and 241.357.
Sec. 241.363. NURSE STAFFING POLICY DEVELOPMENT COMMITTEE.
(a) Except as provided by Subsection (c), the chief nursing officer
of each hospital shall appoint a nurse staffing policy development
committee to develop a nurse staffing policy for the hospital.
(b) The committee must consist of 10 members. Five of the
members must be direct care registered nurses.
(c) Where direct care registered nurses are represented for
collective bargaining purposes, the collective bargaining agent
for the direct care registered nurses may appoint five members of
the committee.
(d) This section may not be construed to permit conduct
prohibited under the National Labor Relations Act (29 U.S.C.
Section 151 et seq.) or the federal Labor Management Relations Act,
1947 (29 U.S.C. Section 141 et seq.).
Sec. 241.364. NURSE STAFFING POLICY. (a) The nurse
staffing policy development committee shall develop a written nurse
staffing policy.
(b) In developing the nurse staffing policy, the committee:
(1) shall give significant consideration to the nurse
staffing plan developed under Section 241.362;
(2) may not specify a staffing level for direct care
registered nurses that falls below the requirements prescribed by
Sections 241.353, 241.354, 241.355, 241.356, and 241.357; and
(3) must consider:
(A) the number and acuity level of patients as
determined by the application of an acuity system on a
shift-by-shift basis;
(B) the anticipated admissions, discharges, and
transfers of patients during each shift that impact direct patient
care;
(C) specialized experience required of direct
care registered nurses assigned to a particular unit;
(D) staffing levels and services provided by
other health care personnel in meeting patient care needs that are
not performed by direct care registered nurses;
(E) the efficacy of technology available that
affects the delivery of patient care;
(F) the level of familiarity with hospital
practices, policies, and procedures by temporary agency direct care
registered nurses used during a shift; and
(G) obstacles to efficiency in the delivery of
patient care presented by the hospital's physical layout.
(c) The chief nursing officer of the hospital shall deliver
the nurse staffing policy to the governing body of the hospital.
Sec. 241.365. ADOPTION, IMPLEMENTATION, AND ENFORCEMENT OF
NURSE STAFFING POLICY. The governing body of a hospital shall
adopt, implement, and enforce the nurse staffing policy developed
under Section 241.364.
Sec. 241.366. ANNUAL REEVALUATION OF POLICY AND
ACUITY-BASED PATIENT CLASSIFICATION SYSTEM. (a) In January of
each year, the governing body of a hospital shall evaluate:
(1) the reliability of the acuity-based patient
classification system for validating staffing requirements to
determine whether the system accurately measures individual
patient care needs and accurately predicts nurse staffing
requirements based exclusively on individual patient needs; and
(2) the validity of the patient classification system.
(b) The governing body of a hospital shall update its
staffing plan and acuity system based on the annual evaluation
described by Subsection (a). If the review reveals that
adjustments are necessary to ensure accuracy in measuring patient
care needs, those adjustments must be implemented not later than
the 30th day after the date that determination is made.
Sec. 241.367. SUBMISSION OF POLICY AND REEVALUATION. The
governing body of a hospital shall submit the nurse staffing policy
adopted under Section 241.365 and the written results of the annual
review of that policy under Section 241.366 to the department not
later than January 31 of each year.
[Sections 241.368-241.400 reserved for expansion]
PART 3. UNIFORM ACUITY-BASED PATIENT CLASSIFICATION SYSTEM
Sec. 241.401. DEVELOPMENT OF STANDARDS FOR A UNIFORM
ACUITY-BASED PATIENT CLASSIFICATION SYSTEM. (a) The department
shall appoint a committee to develop models of standard acuity
tools for patient classification for use by hospitals in this
state. The standard acuity tools developed by the committee must
provide a method for establishing nurse staffing requirements above
the hospital unit or clinical patient care area direct care
registered nurse-to-patient ratios required by Sections 241.353,
241.354, 241.355, 241.356, and 241.357.
(b) The committee must consist of 20 members, at least 11 of
which are licensed registered nurses employed as direct care
registered nurses by a hospital. The remaining nine members must
include at least three technical or scientific experts in the
specialized fields involved in the design and development of
acuity-based patient classification systems.
(c) A person who has any employment, commercial,
proprietary, financial, or other personal interest in the
development, marketing, or use by a hospital of any privately
developed patient classification system or related methodology,
technology, or component system may not serve on the development
committee.
(d) A candidate for appointment to the development
committee may not be confirmed as a member of the committee until
the individual files a disclosure of interest statement with the
department that provides all information determined by the
department to be necessary to demonstrate the absence of actual or
potential conflict of interest. The filing is public information.
Sec. 241.402. ADOPTION OF STANDARD ACUITY TOOL FOR UNIFORM
PATIENT CLASSIFICATION. (a) The development committee shall
provide a written report to the department that describes the
various standard acuity tools for hospital patient classification
developed by the committee. The report must include sufficient
explanation and justification to allow for competent review by the
department. The executive commissioner of the Health and Human
Services Commission by rule shall adopt a standard acuity tool for
patient classification for use in hospitals in this state from the
options included in the report described by this section.
(b) The department shall review the standard acuity tool for
patient classification adopted under this section annually. If the
review reveals that adjustments are necessary to assure accuracy in
measuring patient care needs, the executive commissioner of the
Health and Human Services Commission shall develop proposed rules
implementing those adjustments not later than the 30th day after
the date that determination is made.
Sec. 241.403. ADOPTION, IMPLEMENTATION, AND ENFORCEMENT OF
STANDARD ACUITY TOOL FOR PATIENT CLASSIFICATION BY HOSPITALS. (a)
Each hospital shall adopt, implement, and enforce the standard
acuity tool adopted by the department under Section 241.402 and
must provide staffing based on that tool.
(b) Additional direct care registered nurse staffing above
the hospital unit or clinical patient care area direct care
registered nurse-to-patient ratios described by Sections 241.353,
241.354, 241.355, 241.356, and 241.357 shall be assigned in a
manner determined by the standard acuity tool.
SECTION 2. Section 161.0315, Health and Safety Code, is
amended by adding Subsections (a-1) and (a-2) to read as follows:
(a-1) The authority granted by this section does not include
authority to form, establish, sponsor, sanction, recognize,
support, or assist any committee, whether formal or informal,
perpetual or ad hoc, that purports to directly or indirectly
perform any peer review or other evaluative function with respect
to the competent, safe, or lawful practice of direct care
registered or professional nurses, or that undertakes any activity
that is intended to serve or has the effect of serving as an
evaluative function with respect to the licensure, employment, or
professional practice of a direct care registered or professional
nurse.
(a-2) A committee formed under this section may not
undertake any activity that is intended to have or has the effect of
serving as an evaluative function with respect to the licensure,
employment, or professional practice of a direct care registered or
professional nurse.
SECTION 3. Section 241.026, Health and Safety Code, is
amended by amending Subsections (a) and (c) and adding Subsections
(g) and (h) to read as follows:
(a) The board shall adopt and enforce rules to further the
purposes of this chapter. The rules at a minimum shall address:
(1) minimum requirements for staffing by physicians
[and nurses];
(2) hospital services relating to patient care;
(3) fire prevention, safety, and sanitation
requirements in hospitals;
(4) patient care and a patient bill of rights;
(5) compliance with other state and federal laws
affecting the health, safety, and rights of hospital patients; and
(6) implementation and enforcement of the minimum
requirements and standards for nurse staffing and competent
practice by nurses prescribed by this chapter, [compliance with
nursing peer review under] Subchapter I, Chapter 301, and Chapter
303, Occupations Code, and the rules of the Texas Board of Nursing
[relating to peer review].
(c) Except as provided by Subsections (g) and (h), on [Upon]
the recommendation of the hospital licensing director and the
council, the board by order may waive or modify the requirement of a
particular provision of this Act or minimum standard adopted by
board rule under this section to a particular general or special
hospital if the board determines that the waiver or modification
will facilitate the creation or operation of the hospital and that
the waiver or modification is in the best interests of the
individuals served or to be served by the hospital.
(g) Except as provided by Subsection (h), the department may
not grant a waiver of or exception to the requirements prescribed by
Sections 241.353, 241.354, 241.355, 241.356, and 241.357. A waiver
granted under Subsection (c) has no legal effect to the extent that
the waiver directly or indirectly operates as a waiver of,
exception to, or excuse for noncompliance with a requirement
prescribed by Sections 241.353, 241.354, 241.355, 241.356, and
241.357.
(h) The department may grant a critical access hospital a
waiver of the requirements prescribed by Sections 241.353, 241.354,
241.355, 241.356, and 241.357 for not more than one year to prepare
for compliance with those provisions. After that date, requests
for waivers of the requirements prescribed by Sections 241.353,
241.354, 241.355, 241.356, and 241.357 may not be granted except on
the express written order of the executive commissioner of the
Health and Human Services Commission, issued after public notice
and reasonable opportunity for public comment, based on express
findings supported by a written record that the requested waiver
does not jeopardize the health, safety, and well-being of patients
affected and is needed for increased operational efficiency.
SECTION 4. Section 241.051(a), Health and Safety Code, is
amended to read as follows:
(a) The department may make any inspection, survey, or
investigation that it considers necessary. A representative of the
department may enter the premises of a hospital at any [reasonable]
time, with or without advance notice, to make an inspection, a
survey, or an investigation to assure compliance with or prevent a
violation of this chapter, the rules adopted under this chapter, an
order or special order of the commissioner of health, a special
license provision, a court order granting injunctive relief, or
other enforcement procedures. The department shall maintain the
confidentiality of hospital records as applicable under state or
federal law.
SECTION 5. Section 241.052, Health and Safety Code, is
amended to read as follows:
Sec. 241.052. COMPLIANCE WITH RULES AND STANDARDS. (a) A
hospital that is in operation when an applicable rule or minimum
standard is adopted under this chapter, on application to the
department and for good cause shown, must be given a reasonable
period within which to comply with the rule or standard.
(b) Except as provided by Subsection (c), the [The] period
for compliance may not exceed six months, except that the
department may extend the period beyond six months if the hospital
sufficiently shows the department that it requires additional time
to complete compliance with the rule or standard.
(c) The department may not extend the period for compliance
with the requirements prescribed by Sections 241.353, 241.354,
241.355, 241.356, and 241.357 beyond the six-month period allowed
under Subsection (b).
SECTION 6. Sections 241.054(e) and (i), Health and Safety
Code, are amended to read as follows:
(e) The district court shall assess the civil penalty
authorized by Section 241.055 or 241.0551, grant injunctive relief,
or both, as warranted by the facts. The injunctive relief may
include any prohibitory or mandatory injunction warranted by the
facts, including a temporary restraining order, temporary
injunction, or permanent injunction.
(i) The injunctive relief and civil penalty authorized by
this section and Section 241.055 or 241.0551 are in addition to any
other civil, administrative, or criminal penalty provided by law.
SECTION 7. Section 241.055(b), Health and Safety Code, is
amended to read as follows:
(b) Except as provided by Section 241.0551, a [A] hospital
that violates Subsection (a), another provision of this chapter, or
a rule adopted or enforced under this chapter is liable for a civil
penalty of not more than $1,000 for each day of violation and for
each act of violation. A hospital that violates this chapter or a
rule or order adopted under this chapter relating to the provision
of mental health, chemical dependency, or rehabilitation services
is liable for a civil penalty of not more than $25,000 for each day
of violation and for each act of violation.
SECTION 8. Subchapter C, Chapter 241, Health and Safety
Code, is amended by adding Section 241.0551 to read as follows:
Sec. 241.0551. REMEDIES FOR CERTAIN VIOLATIONS. (a) A
hospital found to have violated or aided and abetted the violation
of any provision of Subchapter I, or any provision of Section
161.0315, 241.026, 241.051, or 241.052 of this code or Section
301.352, 301.402, 301.413, or 301.452, Occupations Code, relating
to nurses, shall be subject, in addition to any other penalties that
may be prescribed by law, to a civil penalty of not more than
$25,000 for each day of violation and an additional $10,000 per
nursing unit shift until the violation is corrected.
(b) The civil penalties authorized by this section and
Section 241.055 may be assessed by either the department in
administrative proceedings under Section 241.059 or by the courts
in a civil action brought by a person harmed by those violations as
provided by Section 241.056.
(c) All amounts assessed and recovered under this section
and Section 241.055 by the state in relation to nurse staffing shall
be deposited to the credit of a special account in the general
revenue fund that may be appropriated only to the department to
compensate nurses, patients, or other persons who have been
adversely affected or exposed to risk of harm or have participated
in disclosing the conduct and assisting the investigation and
prosecution of the complaint on which the civil penalties are
assessed. The award of these civil penalties to patient victims and
their advocates constitutes equitable compensation, restitution,
and reimbursement for unlawful conduct that adversely affected
those claimants. The department shall order an allocation and
distribution of the proceeds of civil penalties obtained under this
section among the claimants, based on equitable principles.
Amounts assessed and collected by a court shall be allocated as
compensation in the same manner and for the same purpose.
(d) The court or department may award, order, or impose any
other remedies or sanctions, or require corrective actions, as are
considered necessary or appropriate to remedy the violations and
prevent those violations in the future.
(e) The court or the department may order payment of costs
and reasonable attorney's fees to a complaining party who prevails
in a complaint proceeding.
(f) In determining the amount of a penalty assessed under
this section, the court or department shall consider:
(1) the hospital's degree of culpability and history
of previous offenses;
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(3) whether the health and safety of the public was
threatened by the violation;
(4) any actual harm or injury caused or threatened by
the violation, including exposure of licensed personnel to breaches
of professional responsibility, license suspension or revocation,
or malpractice liability;
(5) the effort and expense incurred by the person
presenting or providing essential information or assistance in
presenting the claims;
(6) the amount necessary to deter future violations;
and
(7) other matters as justice may require.
SECTION 9. Section 241.056, Health and Safety Code, is
amended by amending Subsection (a) and by adding Subsections (d),
(e), (f), and (g) to read as follows:
(a) A person who is harmed by a violation under Section
241.028 or 241.055 or Subchapter I, including any nurse, patient,
or other person who is adversely affected or exposed to risk of harm
or has suffered actual harm caused in whole or substantial part by
the violation, may petition a district court for appropriate
injunctive relief.
(d) A nurse whose rights and duties as a patient advocate
are denied, obstructed, or interfered with, or who suffers
retaliatory action or other harm as a result of a hospital's
violation of any provision of Subchapter I, has a cause of action
against any person who violates or aids and abets in that violation
and may recover in a civil action under this section:
(1) the greater of:
(A) actual damages, including damages for mental
anguish even if no other injury is shown; or
(B) $10,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(e) In addition to any amount recovered under Subsection
(d), a nurse whose employment is suspended or terminated in
violation of law is entitled to:
(1) reinstatement to the employee's former position or
severance pay in an amount equal to three months of the employee's
most recent salary; and
(2) compensation for wages lost during the period of
suspension or termination.
(f) A nurse who brings an action under this section alleging
retaliation for acts or omissions taken by the nurse under a claim
of professional authority and duty has the burden of proving that:
(1) the nurse had reasonable cause to suspect that:
(A) unless the nurse engaged in the act or
omission at issue, a patient would be exposed to unsafe conditions
and risk of harm or injury;
(B) failure of the nurse to act would not be in
the interests of the affected patient;
(C) the hospital's acts or omissions would
constitute grounds for reporting the hospital to the department
under Subchapter I; or
(D) the chief nursing officer's acts or omissions
would constitute grounds for reporting the chief nursing officer
under Subchapter I of this chapter or Chapter 301, Occupations
Code, or would violate a rule adopted by the Texas Board of Nursing;
and
(2) the nurse's action was a substantial factor in a
hospital's decision to take adverse personnel action against the
nurse.
(g) In an action brought under Subsection (d), there is a
rebuttable presumption that any adverse personnel action taken
against a nurse was for the nurse's exercise of protected rights and
obligations if the adverse action was taken not later than the 60th
day after the date of the action the nurse alleged as the subject of
retaliation.
SECTION 10. Section 241.059(a), Health and Safety Code, is
amended to read as follows:
(a) The commissioner of health may assess an administrative
penalty against a hospital that violates this chapter, a rule
adopted pursuant to this chapter, a special license provision, an
order or emergency order issued by the commissioner or the
commissioner's designee, or another enforcement procedure
permitted under this chapter. The commissioner shall assess an
administrative penalty against a hospital that violates Section
166.004. The penalties authorized by this section are cumulative
and may not be assessed instead of or as any set-off or credit
against penalties authorized by Section 241.055 or 241.0551.
SECTION 11. Section 241.055(d), Health and Safety Code, is
repealed.
SECTION 12. The committee created under Section 241.401,
Health and Safety Code, as added by this Act, shall submit its
written report proposing standard acuity tools for patient
classification for use by hospitals in this state to the Department
of State Health Services not later than September 1, 2012.
SECTION 13. The executive commissioner of the Health and
Human Services Commission shall adopt the standard acuity tool
required by Section 241.402, Health and Safety Code, as added by
this Act, not later than January 1, 2013.
SECTION 14. This Act takes effect September 1, 2011.