Texas 2011 - 82nd Regular

Texas Senate Bill SB192 Compare Versions

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1	1	By: Nelson S.B. No. 192
2	2	(Howard of Travis, Naishtat)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to patient advocacy activities by nurses and certain other
8	8	persons; providing an administrative penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subsection (a), Section 301.352, Occupations
11	11	Code, is amended to read as follows:
12	12	(a) A person may not suspend, terminate, or otherwise
13	13	discipline, [or] discriminate against, or retaliate against:
14	14	(1) a nurse who refuses to engage in an act or omission
15	15	as provided by Subsection (a-1); or
16	16	(2) a person who advises a nurse of the nurse's rights
17	17	under this section.
18	18	SECTION 2. Subchapter I, Chapter 301, Occupations Code, is
19	19	amended by adding Section 301.4011 to read as follows:
20	20	Sec. 301.4011. GOOD FAITH REPORT BY NURSE. In this
21	21	subchapter, a report is considered to be made in good faith if:
22	22	(1) the person reporting believed that the report was
23	23	required or authorized; and
24	24	(2) there was a reasonable factual or legal basis for
25	25	that belief.
26	26	SECTION 3. Section 301.402, Occupations Code, is amended by
27	27	amending Subsection (f) and adding Subsection (g) to read as
28	28	follows:
29	29	(f) A person may not suspend or terminate the employment of,
30	30	or otherwise discipline, [or] discriminate against, or retaliate
31	31	against, a person who:
32	32	(1) reports in good faith[, without malice,] under
33	33	this section; or
34	34	(2) advises a nurse of the nurse's rights and
35	35	obligations under this section.
36	36	(g) A violation of Subsection (f) [this subsection] is
37	37	subject to Section 301.413.
38	38	SECTION 4. Section 301.4025, Occupations Code, is amended
39	39	by amending Subsection (c) and adding Subsection (d) to read as
40	40	follows:
41	41	(c) A person may not suspend or terminate the employment of,
42	42	or otherwise discipline, [or] discriminate against, or retaliate
43	43	against, a person who:
44	44	(1) reports in good faith[, without malice,] under
45	45	this section; or
46	46	(2) advises a nurse of the nurse's right to report
47	47	under this section.
48	48	(d) A violation of Subsection (c) [this subsection] is
49	49	subject to Section 301.413.
50	50	SECTION 5. Section 301.412, Occupations Code, is amended to
51	51	read as follows:
52	52	Sec. 301.412. REPORTING IMMUNITY. A person who in good
53	53	faith[, without malice,] makes a report required or authorized [,
54	54	or reasonably believed to be required or authorized,] under this
55	55	subchapter, or a person who advises a nurse of the nurse's right or
56	56	obligation to report under this subchapter:
57	57	(1) is immune from civil and criminal liability that,
58	58	in the absence of the immunity, might result from making the report
59	59	or giving the advice; and
60	60	(2) may not be subjected to other retaliatory action
61	61	as a result of making the report or giving the advice.
62	62	SECTION 6. Section 301.413, Occupations Code, is amended by
63	63	amending Subsections (a), (b), (c), and (e) and adding Subsection
64	64	(b-1) to read as follows:
65	65	(a) A person [named as a defendant in a civil action or
66	66	subjected to other retaliatory action as a result of filing a report
67	67	required, authorized, or reasonably believed to be required or
68	68	authorized under this subchapter as a result of refusing to engage
69	69	in conduct as authorized by Section 301.352, or as a result of
70	70	requesting in good faith a nursing peer review determination under
71	71	Section 303.005,] may file a counterclaim in a [the] pending action
72	72	or prove a cause of action in a subsequent suit to recover defense
73	73	costs, including reasonable attorney's fees and actual and punitive
74	74	damages, if:
75	75	(1) the person is named as a defendant in a civil
76	76	action or subjected to other retaliatory action as a result of:
77	77	(A) filing a report required or authorized, or
78	78	reasonably believed to be required or authorized, under this
79	79	subchapter as a result of refusing to engage in conduct as
80	80	authorized by Section 301.352;
81	81	(B) requesting in good faith a nursing peer
82	82	review committee determination under Section 303.005; or
83	83	(C) providing advice to a person regarding:
84	84	(i) filing a report required or authorized,
85	85	or reasonably believed to be required or authorized, under this
86	86	subchapter as a result of refusing to engage in conduct as
87	87	authorized by Section 301.352; or
88	88	(ii) requesting in good faith a nursing
89	89	peer review committee determination under Section 303.005; and
90	90	(2) the suit or retaliatory action is determined to be
91	91	frivolous, unreasonable, or taken in bad faith.
92	92	(b) A person may not suspend, terminate, or otherwise
93	93	discipline, [or] discriminate against, or retaliate against a
94	94	person who:
95	95	(1) reports in good faith[, without malice,] under
96	96	this subchapter;
97	97	(2) requests, in good faith, a nursing peer review
98	98	committee determination under Section 303.005; [or]
99	99	(3) refuses to engage in conduct as authorized by
100	100	Section 301.352; or
101	101	(4) advises a nurse of the nurse's right to:
102	102	(A) report under this subchapter;
103	103	(B) request a nursing peer review committee
104	104	determination under Section 303.005; or
105	105	(C) refuse to engage in conduct as authorized by
106	106	Section 301.352.
107	107	(b-1) A person suspected of violating Subsection (b) may be
108	108	reported to the appropriate licensing agency and, notwithstanding
109	109	any other provision, that agency may impose an administrative
110	110	penalty not to exceed $25,000 against the person if the agency finds
111	111	a violation of Subsection (b). An administrative penalty imposed
112	112	under this subsection is in addition to other penalties the agency
113	113	is authorized to impose and is subject to the procedural
114	114	requirements applicable to the appropriate licensing agency.
115	115	(c) A person who reports under this subchapter, refuses to
116	116	engage in conduct as authorized by Section 301.352, or requests a
117	117	nursing peer review committee determination under Section 303.005,
118	118	or a person who advises a nurse of the nurse's right to report under
119	119	this subchapter, refuse to engage in conduct as authorized by
120	120	Section 301.352, or request a nursing peer review committee
121	121	determination under Section 303.005, has a cause of action against
122	122	a person who violates Subsection (b), and may recover:
123	123	(1) the greater of:
124	124	(A) actual damages, including damages for mental
125	125	anguish even if no other injury is shown; or
126	126	(B) $5,000;
127	127	(2) exemplary damages;
128	128	(3) court costs; and
129	129	(4) reasonable attorney's fees.
130	130	(e) A person who brings an action under this section has the
131	131	burden of proof. It is a rebuttable presumption that the person was
132	132	suspended, terminated, or otherwise disciplined, [or]
133	133	discriminated against, or retaliated against for reporting under
134	134	this subchapter, for refusing to engage in conduct as authorized by
135	135	Section 301.352, [or] for requesting a peer review committee
136	136	determination under Section 303.005, or for providing advice to a
137	137	person regarding reporting under this subchapter, refusing to
138	138	engage in conduct as authorized by Section 301.352, or requesting a
139	139	peer review committee determination under Section 303.005 if:
140	140	(1) the person was suspended, terminated, or otherwise
141	141	disciplined, [or] discriminated against, or retaliated against
142	142	within 60 days after the date the report, refusal, or request was
143	143	made or the advice was given; and
144	144	(2) the board or a court determines that:
145	145	(A) the report that is the subject of the cause of
146	146	action was:
147	147	(i) authorized or required under Section
148	148	301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
149	149	301.409, or 301.410; and
150	150	(ii) made in good faith [without malice];
151	151	(B) the request for a peer review committee
152	152	determination that is the subject of the cause of action was:
153	153	(i) authorized under Section 303.005; and
154	154	(ii) made in good faith; [or]
155	155	(C) the refusal to engage in conduct was
156	156	authorized by Section 301.352; or
157	157	(D) the advice that is the subject of the cause of
158	158	action was given in good faith.
159	159	SECTION 7. Subdivision (5), Section 303.001, Occupations
160	160	Code, is amended to read as follows:
161	161	(5) "Peer review" means the evaluation of nursing
162	162	services, the qualifications of a nurse, the quality of patient
163	163	care rendered by a nurse, the merits of a complaint concerning a
164	164	nurse or nursing care, and a determination or recommendation
165	165	regarding a complaint. The term includes:
166	166	(A) the evaluation of the accuracy of a nursing
167	167	assessment and observation and the appropriateness and quality of
168	168	the care rendered by a nurse;
169	169	(B) a report made to a nursing peer review
170	170	committee concerning an activity under the committee's review
171	171	authority;
172	172	(C) a report made by a nursing peer review
173	173	committee to another committee or to the board as permitted or
174	174	required by law; [and]
175	175	(D) implementation of a duty of a nursing peer
176	176	review committee by a member, an agent, or an employee of the
177	177	committee; and
178	178	(E) the provision of information, advice, and
179	179	assistance to nurses and other persons relating to:
180	180	(i) the rights and obligations of and
181	181	protections for nurses who raise care concerns or report under
182	182	Chapter 301 or other state or federal law;
183	183	(ii) the rights and obligations of and
184	184	protections for nurses who request nursing peer review under this
185	185	chapter;
186	186	(iii) nursing practice and patient care
187	187	concerns; and
188	188	(iv) the resolution of workplace and
189	189	practice questions relating to nursing and patient care.
190	190	SECTION 8. Subsection (a-1), Section 303.005, Occupations
191	191	Code, is amended to read as follows:
192	192	(a-1) For purposes of this section, a nurse or nurse
193	193	administrator acts [does not act] in good faith in connection with a
194	194	request made or an action taken by the nurse or nurse administrator
195	195	if there is [not] a reasonable factual or legal basis for the
196	196	request or action.
197	197	SECTION 9. (a) Subsection (b-1), Section 301.413,
198	198	Occupations Code, as added by this Act, and Sections 301.352,
199	199	301.402, and 301.4025 and Subsection (b), Section 301.413,
200	200	Occupations Code, as amended by this Act, apply only to a violation
201	201	that occurs on or after the effective date of this Act. A violation
202	202	that occurs before the effective date of this Act is covered by the
203	203	law in effect on the date the violation occurred, and the former law
204	204	is continued in effect for that purpose.
205	205	(b) Section 301.412, Occupations Code, as amended by this
206	206	Act, applies only to a report made on or after the effective date of
207	207	this Act. A report made before the effective date of this Act is
208	208	covered by the law in effect on the date the report was made, and the
209	209	former law is continued in effect for that purpose.
210	210	(c) Subsections (a), (c), and (e), Section 301.413,
211	211	Occupations Code, as amended by this Act, apply only to an action
212	212	commenced on or after the effective date of this Act. An action
213	213	commenced before the effective date of this Act is covered by the
214	214	law in effect on the date the action was commenced, and the former
215	215	law is continued in effect for that purpose.
216	216	SECTION 10. This Act takes effect September 1, 2011.