By: Nelson S.B. No. 1058
(In the Senate - Filed March 4, 2013; March 12, 2013, read
first time and referred to Committee on Health and Human Services;
March 20, 2013, reported favorably by the following vote: Yeas 9,
Nays 0; March 20, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of the practice of nursing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 301.004, Occupations
Code, is amended to read as follows:
(a) This chapter does not apply to:
(1) gratuitous nursing care of the sick that is
provided by a friend;
(2) nursing care provided during a disaster under the
state emergency management plan adopted under Section 418.042,
Government Code, if the person providing the care does not hold the
person out as a nurse unless the person is licensed in another
state;
(3) nursing care in which treatment is solely by
prayer or spiritual means;
(4) an act performed by a person under the delegated
authority of a person licensed by the Texas Medical Board;
(5) an act performed by a person licensed by another
state agency if the act is authorized by the statute under which the
person is licensed except that if the person also holds a license
under this chapter and the act is within the practice of nursing,
the board may take action against that license based on that act;
(6) the practice of nursing that is incidental to a
program of study by a student enrolled in a nursing education
program approved under Section 301.157(d) leading to an initial
license as a nurse; or
(7) the practice of nursing by a person licensed in
another state who is in this state on a nonroutine basis for a
period not to exceed 72 hours to:
(A) provide care to a patient being transported
into, out of, or through this state;
(B) provide nursing consulting services; or
(C) attend or present a continuing nursing
education program.
SECTION 2. Subsection (c), Section 301.2511, Occupations
Code, is amended to read as follows:
(c) The board by rule shall [may] develop a system for
[initiating the process of] obtaining criminal history record
information for a person accepted for enrollment in a nursing
[applicants for a license under this chapter by requiring persons
who enroll or plan to enroll in an] educational program that
prepares the [a] person for initial licensure [a license] as a
registered or vocational nurse by requiring the person to submit to
the board a set of fingerprints that meets the requirements of
Subsection (a). The board may develop a similar system for an
applicant for enrollment in a nursing educational program. The
board may require payment of a fee by a person who is required to
submit a set of fingerprints under this subsection.
SECTION 3. Section 301.257, Occupations Code, is amended by
adding Subsections (j) and (k) to read as follows:
(j) The board may file a petition under this section based
on the results of a criminal history record information check
conducted under Section 301.2511. The board by rule shall adopt
requirements for the petition and determination under this
subsection. The rules must:
(1) identify the criminal offenses that constitute
grounds for the board to file the petition; and
(2) describe the documents required by the board to
make a determination of license eligibility.
(k) The board shall make a determination of license
eligibility under Subsection (j) not later than the 120th day after
the date the person submits the required documents to the board
under that subsection.
SECTION 4. Subsection (b), Section 301.452, Occupations
Code, is amended to read as follows:
(b) A person is subject to denial of a license 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;
(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, 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 person in connection with the unauthorized practice of
nursing;
(8) revocation, suspension, or denial of, or any other
action relating to, the person's license or privilege to practice
nursing in another jurisdiction or under federal law;
(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 5. Subsection (b), Section 301.453, Occupations
Code, is amended to read as follows:
(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;
(2) participate in a program of education or
counseling prescribed by the board, including a program of remedial
education;
(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; or
(5) abstain from the consumption of alcohol or the use
of drugs and submit to random periodic screening for alcohol or drug
use.
SECTION 6. Subsection (a), Section 301.454, Occupations
Code, is amended to read as follows:
(a) Except in the case of a temporary suspension authorized
under Section 301.455 or 301.4551 or an action taken in accordance
with an agreement between the board and a license holder, the board
may not take any [initiate a] disciplinary action relating to a
license unless:
(1) the board has served notice to the license holder
of the facts or conduct alleged to warrant the intended action; and
(2) the license 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.
SECTION 7. Subsection (a), Section 301.458, Occupations
Code, is 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), the board or the board's authorized
representative shall file [initiate proceedings by filing] formal
charges against the nurse.
SECTION 8. Subsection (a), Section 301.465, Occupations
Code, is amended to read as follows:
(a) Notwithstanding Section 2001.089, Government Code, the
[The] board may request issuance of a subpoena to be served by [in
any manner authorized by law, including] personal service by a
board investigator or [and service] by certified mail.
SECTION 9. Section 301.466, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) A complaint and investigation concerning a nurse under
this subchapter, [and] all information and material compiled by the
board in connection with the complaint and investigation, and the
information described by Subsection (d) 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 holder
discipline.
(d) Notwithstanding Subsection (c), if the board orders a
nurse to participate in a peer assistance program approved by the
board under Section 467.003, Health and Safety Code, the complaint,
filing of formal charges, nature of those charges, final board
order, and disciplinary proceedings are subject to disclosure:
(1) only to the same extent as information regarding a
complaint is subject to disclosure under Subsection (b); or
(2) in a subsequent matter relating to the board order
or a subsequent violation of this chapter or a board rule.
SECTION 10. The heading to Subchapter N, Chapter 301,
Occupations Code, is amended to read as follows:
SUBCHAPTER N. CORRECTIVE ACTION PROCEEDING AND DEFERRED ACTION
SECTION 11. Section 301.651, Occupations Code, is amended
to read as follows:
Sec. 301.651. DEFINITIONS [DEFINITION]. In this
subchapter:
(1) "Corrective[, "corrective] action" means a fine or
remedial education imposed under Section 301.652.
(2) "Deferred action" means an action against a person
licensed or regulated under this chapter that is deferred by the
board as provided by this subchapter.
SECTION 12. Subsection (b), Section 301.655, Occupations
Code, is amended to read as follows:
(b) If the person does not accept the executive director's
determination and recommended corrective action as originally
proposed or as modified by the board or fails to respond in a timely
manner to the executive director's notice as provided by Section
301.654, the executive director shall:
(1) terminate corrective action proceedings [under
this subchapter]; and
(2) dispose of the matter as a complaint under
Subchapter J.
SECTION 13. Subchapter N, Chapter 301, Occupations Code, is
amended by adding Section 301.6555 to read as follows:
Sec. 301.6555. DEFERRED ACTION. (a) For any action or
complaint for which the board proposes to impose on a person a
sanction other than a reprimand or a denial, suspension, or
revocation of a license, the board may:
(1) defer the final action the board has proposed if
the person conforms to conditions imposed by the board, including
any condition the board could impose as a condition of probation
under Section 301.468; and
(2) if the person successfully meets the imposed
conditions, dismiss the complaint.
(b) Except as provided by this subsection, a deferred action
by the board is not confidential and is subject to disclosure in
accordance with Chapter 552, Government Code. If the person
successfully meets the conditions imposed by the board in deferring
final action and the board dismisses the action or complaint, the
deferred action of the board is confidential to the same extent as a
complaint is confidential under Section 301.466.
SECTION 14. Section 301.656, Occupations Code, is amended
to read as follows:
Sec. 301.656. REPORT TO BOARD. The executive director
shall report periodically to the board on the corrective or
deferred actions imposed under this subchapter, including:
(1) the number of [corrective] actions imposed; and
(2) the types of violations for which [corrective]
actions were imposed[; and
[(3) whether affected nurses accepted the corrective
actions].
SECTION 15. Section 301.657, Occupations Code, is amended
to read as follows:
Sec. 301.657. EFFECT ON ACCEPTANCE OF CORRECTIVE OR
DEFERRED ACTION. (a) Except to the extent provided by this
section, a person's acceptance of a corrective or deferred action
under this subchapter does not constitute an admission of a
violation but does constitute a plea of nolo contendere.
(b) The board may treat a person's acceptance of corrective
or deferred action as an admission of a violation if the board
imposes a sanction on the person for a subsequent violation of this
chapter or a rule or order adopted under this chapter.
(c) The board may consider a corrective or deferred action
taken against a person to be a prior disciplinary action under this
chapter when imposing a sanction on the person for a subsequent
violation of this chapter or a rule or order adopted under this
chapter.
SECTION 16. Section 301.1607, Occupations Code, is
repealed.
SECTION 17. (a) Except as provided by Subsection (b) of
this section, the changes in law made by this Act to Chapter 301,
Occupations Code, apply only to a violation that occurs on or after
the effective date of this Act. A violation that occurs before that
date is governed by the law in effect on the date the violation
occurred, and the former law is continued in effect for that
purpose.
(b) The changes in law made by this Act to Subchapter N,
Chapter 301, Occupations Code, shall apply to a violation that
occurs before the effective date of this Act if the complaint
relating to that violation remains pending on that date.
SECTION 18. This Act takes effect September 1, 2013.
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