By: Nelson S.B. No. 192
(Howard of Travis, Naishtat)
A BILL TO BE ENTITLED
AN ACT
relating to patient advocacy activities by nurses and certain other
persons; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 301.352, Occupations
Code, is amended to read as follows:
(a) A person may not suspend, terminate, or otherwise
discipline, [or] discriminate against, or retaliate against:
(1) a nurse who refuses to engage in an act or omission
as provided by Subsection (a-1); or
(2) a person who advises a nurse of the nurse's rights
under this section.
SECTION 2. Subchapter I, Chapter 301, Occupations Code, is
amended by adding Section 301.4011 to read as follows:
Sec. 301.4011. GOOD FAITH REPORT BY NURSE. In this
subchapter, a report is considered to be made in good faith if:
(1) the person reporting believed that the report was
required or authorized; and
(2) there was a reasonable factual or legal basis for
that belief.
SECTION 3. Section 301.402, Occupations Code, is amended by
amending Subsection (f) and adding Subsection (g) to read as
follows:
(f) A person may not suspend or terminate the employment of,
or otherwise discipline, [or] discriminate against, or retaliate
against, a person who:
(1) reports in good faith[, without malice,] under
this section; or
(2) advises a nurse of the nurse's rights and
obligations under this section.
(g) A violation of Subsection (f) [this subsection] is
subject to Section 301.413.
SECTION 4. Section 301.4025, Occupations Code, is amended
by amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) A person may not suspend or terminate the employment of,
or otherwise discipline, [or] discriminate against, or retaliate
against, a person who:
(1) reports in good faith[, without malice,] under
this section; or
(2) advises a nurse of the nurse's right to report
under this section.
(d) A violation of Subsection (c) [this subsection] is
subject to Section 301.413.
SECTION 5. Section 301.412, Occupations Code, is amended to
read as follows:
Sec. 301.412. REPORTING IMMUNITY. A person who in good
faith[, without malice,] makes a report required or authorized [,
or reasonably believed to be required or authorized,] under this
subchapter, or a person who advises a nurse of the nurse's right or
obligation to report under this subchapter:
(1) is immune from civil and criminal liability that,
in the absence of the immunity, might result from making the report
or giving the advice; and
(2) may not be subjected to other retaliatory action
as a result of making the report or giving the advice.
SECTION 6. Section 301.413, Occupations Code, is amended by
amending Subsections (a), (b), (c), and (e) and adding Subsection
(b-1) to read as follows:
(a) A person [named as a defendant in a civil action or
subjected to other retaliatory action as a result of filing a report
required, authorized, or reasonably believed to be required or
authorized under this subchapter as a result of refusing to engage
in conduct as authorized by Section 301.352, or as a result of
requesting in good faith a nursing peer review determination under
Section 303.005,] may file a counterclaim in a [the] pending action
or prove a cause of action in a subsequent suit to recover defense
costs, including reasonable attorney's fees and actual and punitive
damages, if:
(1) the person is named as a defendant in a civil
action or subjected to other retaliatory action as a result of:
(A) filing a report required or authorized, or
reasonably believed to be required or authorized, under this
subchapter as a result of refusing to engage in conduct as
authorized by Section 301.352;
(B) requesting in good faith a nursing peer
review committee determination under Section 303.005; or
(C) providing advice to a person regarding:
(i) filing a report required or authorized,
or reasonably believed to be required or authorized, under this
subchapter as a result of refusing to engage in conduct as
authorized by Section 301.352; or
(ii) requesting in good faith a nursing
peer review committee determination under Section 303.005; and
(2) the suit or retaliatory action is determined to be
frivolous, unreasonable, or taken in bad faith.
(b) A person may not suspend, terminate, or otherwise
discipline, [or] discriminate against, or retaliate against a
person who:
(1) reports in good faith[, without malice,] under
this subchapter;
(2) requests, in good faith, a nursing peer review
committee determination under Section 303.005; [or]
(3) refuses to engage in conduct as authorized by
Section 301.352; or
(4) advises a nurse of the nurse's right to:
(A) report under this subchapter;
(B) request a nursing peer review committee
determination under Section 303.005; or
(C) refuse to engage in conduct as authorized by
Section 301.352.
(b-1) A person suspected of violating Subsection (b) may be
reported to the appropriate licensing agency and, notwithstanding
any other provision, that agency may impose an administrative
penalty not to exceed $25,000 against the person if the agency finds
a violation of Subsection (b). An administrative penalty imposed
under this subsection is in addition to other penalties the agency
is authorized to impose and is subject to the procedural
requirements applicable to the appropriate licensing agency.
(c) A person who reports under this subchapter, refuses to
engage in conduct as authorized by Section 301.352, or requests a
nursing peer review committee determination under Section 303.005,
or a person who advises a nurse of the nurse's right to report under
this subchapter, refuse to engage in conduct as authorized by
Section 301.352, or request a nursing peer review committee
determination under Section 303.005, has a cause of action against
a person who violates Subsection (b), and may recover:
(1) the greater of:
(A) actual damages, including damages for mental
anguish even if no other injury is shown; or
(B) $5,000;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(e) A person who brings an action under this section has the
burden of proof. It is a rebuttable presumption that the person was
suspended, terminated, or otherwise disciplined, [or]
discriminated against, or retaliated against for reporting under
this subchapter, for refusing to engage in conduct as authorized by
Section 301.352, [or] for requesting a peer review committee
determination under Section 303.005, or for providing advice to a
person regarding reporting under this subchapter, refusing to
engage in conduct as authorized by Section 301.352, or requesting a
peer review committee determination under Section 303.005 if:
(1) the person was suspended, terminated, or otherwise
disciplined, [or] discriminated against, or retaliated against
within 60 days after the date the report, refusal, or request was
made or the advice was given; and
(2) the board or a court determines that:
(A) the report that is the subject of the cause of
action was:
(i) authorized or required under Section
301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
301.409, or 301.410; and
(ii) made in good faith [without malice];
(B) the request for a peer review committee
determination that is the subject of the cause of action was:
(i) authorized under Section 303.005; and
(ii) made in good faith; [or]
(C) the refusal to engage in conduct was
authorized by Section 301.352; or
(D) the advice that is the subject of the cause of
action was given in good faith.
SECTION 7. Subdivision (5), Section 303.001, Occupations
Code, is amended to read as follows:
(5) "Peer review" means the evaluation of nursing
services, the qualifications of a nurse, the quality of patient
care rendered by a nurse, the merits of a complaint concerning a
nurse or nursing care, and a determination or recommendation
regarding a complaint. The term includes:
(A) the evaluation of the accuracy of a nursing
assessment and observation and the appropriateness and quality of
the care rendered by a nurse;
(B) a report made to a nursing peer review
committee concerning an activity under the committee's review
authority;
(C) a report made by a nursing peer review
committee to another committee or to the board as permitted or
required by law; [and]
(D) implementation of a duty of a nursing peer
review committee by a member, an agent, or an employee of the
committee; and
(E) the provision of information, advice, and
assistance to nurses and other persons relating to:
(i) the rights and obligations of and
protections for nurses who raise care concerns or report under
Chapter 301 or other state or federal law;
(ii) the rights and obligations of and
protections for nurses who request nursing peer review under this
chapter;
(iii) nursing practice and patient care
concerns; and
(iv) the resolution of workplace and
practice questions relating to nursing and patient care.
SECTION 8. Subsection (a-1), Section 303.005, Occupations
Code, is amended to read as follows:
(a-1) For purposes of this section, a nurse or nurse
administrator acts [does not act] in good faith in connection with a
request made or an action taken by the nurse or nurse administrator
if there is [not] a reasonable factual or legal basis for the
request or action.
SECTION 9. (a) Subsection (b-1), Section 301.413,
Occupations Code, as added by this Act, and Sections 301.352,
301.402, and 301.4025 and Subsection (b), Section 301.413,
Occupations Code, as amended by this Act, apply only to a violation
that occurs on or after the effective date of this Act. A violation
that occurs before the effective date of this Act is covered by the
law in effect on the date the violation occurred, and the former law
is continued in effect for that purpose.
(b) Section 301.412, Occupations Code, as amended by this
Act, applies only to a report made on or after the effective date of
this Act. A report made before the effective date of this Act is
covered by the law in effect on the date the report was made, and the
former law is continued in effect for that purpose.
(c) Subsections (a), (c), and (e), Section 301.413,
Occupations Code, as amended by this Act, apply only to an action
commenced on or after the effective date of this Act. An action
commenced before the effective date of this Act is covered by the
law in effect on the date the action was commenced, and the former
law is continued in effect for that purpose.
SECTION 10. This Act takes effect September 1, 2011.