By McDonald H.B. No. 756
Substitute the following for H.B. No. 756:
By McDonald C.S.H.B. No. 756
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of professional nursing.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2, Chapter 570, Acts of the 70th
1-5 Legislature, Regular Session, 1987 (Article 4525a, Vernon's Texas
1-6 Civil Statutes), is amended by amending Secs. 1, 2, 3, and 4 to
1-7 read as follows; adding new Secs. 1, 3 and 18 to read as follows;
1-8 and renumbering the current sections accordingly.
1-9 Sec. 1. The board shall adopt rules governing reporting
1-10 required under this article to minimize unnecessary duplicative
1-11 reporting and the reporting of minor incidents. A "minor incident"
1-12 means conduct that does not indicate the nurse's continuing to
1-13 practice professional nursing poses a risk of harm to a client or
1-14 other person.
1-15 Sec. 2 <1>. Each registered nurse having reasonable cause to
1-16 suspect that a registered nurse has exposed or is likely to expose
1-17 a patient or other person unnecessarily to a risk of harm <because
1-18 of>, engaged in unprofessional conduct or failed<, failure to care
1-19 adequately for a patient, failure> to conform to the minimum
1-20 standards of acceptable professional nursing practice, or that a
1-21 registered nurse's practice is or is likely to be impaired by
1-22 chemical dependency <impaired status> shall report in a signed,
1-23 written report to the board the identity <name> of the nurse
2-1 <committing the violation or suspected violation> and such
2-2 additional <any other pertinent> information <within the nurse's
2-3 knowledge> as the board may require. <A registered nurse without
2-4 personal knowledge of the nurse's actions is not required to report
2-5 under this section if she or he has reasonable cause to believe the
2-6 nurse has already been reported.>
2-7 Sec. 3. Each Professional Nursing Peer Review Committee that
2-8 finds a registered nurse exposed or is likely to expose a patient
2-9 or other person unnecessarily to a risk of harm, engaged in
2-10 unprofessional conduct or failed to conform to the minimum
2-11 standards of acceptable professional nursing practice, or that a
2-12 registered nurse's practice is or is likely to be impaired by
2-13 chemical dependency shall report in a signed, written report to the
2-14 board the identity of the nurse and such additional information as
2-15 the board may require. The report shall include what corrective
2-16 action was taken against the nurse and whether the committee
2-17 recommends the board take formal disciplinary action against the
2-18 nurse.
2-19 Sec. 4 <2>. (a) Each hospital, health science center,
2-20 nursing home, home health agency, other health-care facility, state
2-21 agency, political subdivision, school of professional nursing,
2-22 temporary nursing service, or person that employs, hires, or
2-23 contracts for the services of registered nurses that terminates,
2-24 suspends for more than 7 days, or takes other substantive
2-25 disciplinary action as defined by the board against a registered
3-1 nurse because the registered nurse has exposed or is likely to
3-2 expose a patient or other person <was exposed or is likely to be
3-3 exposed> unnecessarily to a risk of harm <because of> the
3-4 registered nurse engaged in unprofessional conduct<, failure to
3-5 care adequately for a patient, failure> or failed to conform to the
3-6 minimum standards of acceptable professional nursing practice, or
3-7 because the registered nurse's practice is or is likely to be
3-8 impaired by chemical dependency <impaired status> shall report in
3-9 writing to the board the identity <name> of the nurse and such
3-10 additional information as the board may require <other pertinent
3-11 information within the knowledge of the facility, agency, school,
3-12 or person>.
3-13 (b) Each hospital, nursing home, health science center, home
3-14 health agency, other health-care facility, state agency, political
3-15 subdivision, school of professional nursing, temporary nursing
3-16 service, or person that regularly employs, hires, or otherwise
3-17 contracts for the services of 10 or more registered nurses shall
3-18 develop a written plan for identifying and reporting registered
3-19 nurses in its service who expose or are likely to expose patients
3-20 or other persons unnecessarily to a risk of harm <because of>,
3-21 engage in unprofessional conduct<, failure to care adequately for a
3-22 patient, failure> or fail to conform to the minimum standards of
3-23 acceptable professional nursing practice, or whose practice is or
3-24 is likely to be impaired by chemical dependency <impaired status>.
3-25 The plan must include an appropriate process for the review of any
4-1 incident reportable under this section by a professional nursing
4-2 peer review committee established and operated under Article 4525b,
4-3 Revised Statutes, and for the affected nurse to submit rebuttal
4-4 information to that committee. The board shall enter into
4-5 memoranda of understanding with any state agency that licenses,
4-6 registers, or certifies health-care facilities or agencies or
4-7 surveys such facilities or agencies with respect to professional
4-8 nursing care as to how that state agency can promote compliance
4-9 with this subsection.
4-10 (c) The requirement that a report to the board be reviewed
4-11 by a professional nursing peer review committee applies only to a
4-12 required report, and review by the peer review committee is only
4-13 advisory. The requirement may not be construed as subjecting an
4-14 employer's or other person's administrative decision to discipline
4-15 a registered nurse to the peer review process or as preventing an
4-16 employer or other person from taking disciplinary action before
4-17 review by the peer review committee is conducted. The review by
4-18 the peer review committee established under Subsection (b) of this
4-19 section must include a determination as to whether or not the nurse
4-20 undergoing review <engaged in conduct that> exposed or was likely
4-21 to expose a patient or other person unnecessarily to risk of harm
4-22 <because of>, engaged in unprofessional conduct<, failure to care
4-23 adequately for a patient, failure> or failed to conform to the
4-24 minimum standards of acceptable professional nursing practice, or
4-25 if the registered nurse's practice is or is likely to be impaired
5-1 by chemical dependency <impaired status>. The peer review
5-2 committee's determination shall be included in the report made to
5-3 the board under Subsection (a) of this section.
5-4 Sec. 5 <3>. Each professional association of registered
5-5 nurses or any organization that conducts a certification or
5-6 accreditation program for registered nurses that expels,
5-7 decertifies, or takes any other substantive disciplinary action, as
5-8 defined by the board, against a registered nurse as a result of the
5-9 registered nurse's failure to conform to the minimum standards of
5-10 acceptable professional nursing practice shall report in writing to
5-11 the board the identity of the nurse <nurse's name> and such
5-12 additional information <other pertinent information within the
5-13 organization's knowledge> as the board may require.
5-14 Sec. 6 <4>. Each state agency that licenses, registers or
5-15 certifies <surveys> hospitals, nursing homes, health science
5-16 centers, home health agencies, or other health-care facilities or
5-17 agencies or surveys such facilities or agencies with respect to
5-18 quality of professional nursing care provided, unless otherwise
5-19 expressly prohibited by state or federal law, shall report in
5-20 writing to the board any registered nurse that it has reason to
5-21 believe exposed or is likely to expose patients or other persons
5-22 unnecessarily to a risk of harm <because of>, has engaged in
5-23 unprofessional conduct<, failure to care adequately for a patient,
5-24 failure> or failed to conform to the minimum standards of
5-25 acceptable professional nursing practice, or that the registered
6-1 nurse's practice is or is likely to be impaired by chemical
6-2 dependency <impaired status>.
6-3 Sec. 18. A report under this article shall be handled as a
6-4 complaint under Article 4525(b) except that:
6-5 (a) If the board determines that the conduct reported does
6-6 not indicate the reported nurse's continuing to practice
6-7 professional nursing poses a risk of harm to clients or other
6-8 persons, the board may, with the written consent of the reported
6-9 nurse and the person making the report, elect not to proceed with
6-10 investigation or to file formal charges. In such event, the board
6-11 shall keep a record of the report and shall investigate if it
6-12 receives 2 or more reports involving separate incidents on a nurse
6-13 in any 5 year period.
6-14 (b) The board need not investigate a report filed by an
6-15 insurer under section 7 of this article, but shall maintain a
6-16 record of the report and investigate if it receives 2 or more
6-17 reports involving separate incidents on a nurse in any 5 year
6-18 period.
6-19 SECTION 2. Section 3, Chapter 570, Acts of the 70th
6-20 Legislature, Regular Session, 1987 (Article 4525b, Vernon's Texas
6-21 Civil Statutes), is amended by amending Secs. 1(1) and 3 to read
6-22 as follows; adding new Secs. 2 and 3 to read as follows; and
6-23 renumbering the current sections accordingly:
6-24 Sec. 1. In this article:
6-25 (1) "Professional nursing peer review committee" means
7-1 a committee <composed of at least a majority of registered nurses>
7-2 established under the authority of the governing body of a
7-3 national, state, or local professional nursing association, a
7-4 school of professional nursing, the nursing staff of a hospital,
7-5 health science center, nursing home, home health agency, temporary
7-6 nursing service, or other health-care facility, or state agency or
7-7 political subdivision for the purpose of conducting peer review. A
7-8 professional nursing peer review committee includes the employees
7-9 and agents of the committee, including assistants, investigators,
7-10 intervenors, attorneys, and any other person or organization that
7-11 is employed by or serves the committee in any capacity.
7-12 Sec. 2. A professional nursing peer review committee shall
7-13 comply with the following standards:
7-14 (a) three-fourths of the members shall be registered nurses;
7-15 (b) have only registered nurses as voting members;
7-16 (c) to the extent feasible, consist of at least one
7-17 registered nurse who has a working familiarity with the area of
7-18 nursing practice in which the nurse being reviewed practices;
7-19 (d) afford the nurse being reviewed minimum due process
7-20 including notice and opportunity for hearing; and
7-21 (e) afford the nurse the opportunity to file a rebuttal
7-22 statement as provided for in subsection 5(c) of this article.
7-23 Sec. 3. Any registered nurse who, as a temporary agency
7-24 nurse, faculty member or similar personnel, practices professional
7-25 nursing for a person, educational institution or health care
8-1 facility, agency or entity other than the one that employs or
8-2 directly compensates him or her shall be subject to peer review by
8-3 both and for the purposes of exchange of information, the peer
8-4 review committee reviewing the nurse's conduct shall be considered
8-5 as established under the authority of both. The two may contract
8-6 with respect to which will conduct peer review of the nurse.
8-7 Sec. 5 <3>. (a) A professional nursing peer review
8-8 committee shall disclose on request written or oral communications
8-9 made to the committee and the records and proceedings of the
8-10 committee to:
8-11 (1) the state board of registration or licensure of
8-12 any state; or
8-13 (2) a law enforcement authority investigating a
8-14 criminal matter.
8-15 (b) A professional nursing peer review committee may
8-16 disclose written or oral communications made to the committee and
8-17 the records and proceedings of the committee to:
8-18 (1) the state board of registration or licensure of
8-19 any state;
8-20 (2) a law enforcement authority investigating a
8-21 criminal matter;
8-22 (3 <1>) the association, school, agency, facility, or
8-23 other organization under whose authority the committee is
8-24 established;
8-25 (4 <2>) another professional nursing peer review
9-1 committee;
9-2 (5 <3>) a peer assistance program approved by the
9-3 board under Chapter 467, Health and Safety Code;
9-4 (6 <4>) appropriate state or federal agencies or
9-5 accrediting organizations which accredit health-care facilities or
9-6 schools of nursing or which survey facilities for quality of care;
9-7 or
9-8 (7 <5>) persons engaged in bona fide research, if all
9-9 individual-identifying information is deleted.
9-10 (c) If a professional nursing peer review committee
9-11 discloses information under Subsections (a) of this section that
9-12 could result in the reprimand, suspension, termination, or other
9-13 disciplinary action of a professional nurse, or itself recommends
9-14 or takes such action, the committee shall provide the nurse with a
9-15 detailed summary of information disclosed or the basis of its
9-16 action or recommendation. The nurse shall be permitted an
9-17 opportunity to offer rebuttal information and to submit a rebuttal
9-18 statement of reasonable length. The rebuttal statement shall be
9-19 included with the information disclosed.
9-20 (d) If a committee discloses information <to a nurse> under
9-21 this section, the committee has not by that action waived the
9-22 privilege of nondisclosure of committee information and
9-23 proceedings.
9-24 SECTION 3. Section (c), Article 4523, Revised Statutes, is
9-25 amended to read as follows:
10-1 (c) To allow a nurse to satisfy a requirement imposed 1)
10-2 under Article 4526, Revised Statutes, to renew a license expired
10-3 for two years or more, 2) <or a requirement imposed> under Article
10-4 4526b, Revised Statutes, to reactivate a nursing license from
10-5 inactive status, or 3) under Article 4525(c), Revised Statutes, to
10-6 reissue a suspended or revoked license, the board may issue a
10-7 temporary permit to practice professional nursing for the limited
10-8 purpose of satisfying the requirement. A permit issued under this
10-9 subsection expires on the earlier of the receipt of a permanent
10-10 license or six months from the date of issuance.
10-11 SECTION 4. Section (b), Article 4525, Revised Statutes, is
10-12 amended to read.
10-13 (b) Proceedings under this article shall be governed by the
10-14 following:
10-15 (1) Proceedings shall be begun by filing a written
10-16 complaint with the board <of nurse examiners>. Such complaint may
10-17 be made by any person or filed by the board on its own initiative.
10-18 (2) Upon filing a complaint, the board may conduct a
10-19 preliminary investigation into the identity of the person(s) named
10-20 or described in the complaint. Thereafter, unless it would
10-21 jeopardize an investigation, the board shall notify the registered
10-22 nurse that a complaint has been filed and the nature of the
10-23 complaint.
10-24 (3) An information file about each complaint filed
10-25 relating to a licensee shall be maintained by the board. <If a
11-1 written complaint is filed with the board relating to a licensee,
11-2 the> The board, at least as frequently as every four months
11-3 <quarterly> and until final disposition of the complaint, shall
11-4 notify the complainant and the person being complained against
11-5 <party that filed the complaint> of the status of the file unless
11-6 notice would jeopardize an investigation.
11-7 (4) The board shall make a timely and appropriate
11-8 preliminary investigation of the complaint and may, upon written
11-9 waiver of notice and hearing and agreement of the licensee, enter
11-10 orders containing the full range of disciplinary actions <issue a
11-11 warning or reprimand to the person against whom the complaint was
11-12 filed>. If the investigation reveals probable cause to take
11-13 further disciplinary action, the board may <shall> file formal
11-14 charges against the registered nurse stating the provisions of this
11-15 chapter or the board's rules that are alleged to have been violated
11-16 and a brief description of the acts or omissions that constituted
11-17 the violation. <If the board proposes to refuse to admit a person
11-18 to its examination, to refuse to issue a temporary permit, license,
11-19 certificate of registration, certificate of re-registration, or to
11-20 suspend or revoke a person's permit, license, or certificate, the
11-21 person is entitled to a hearing before the board. The hearing may
11-22 be before a subcommittee of the board, a majority of which is
11-23 composed of registered nurses. The person shall on request be
11-24 granted a hearing before the entire board.>
11-25 (5) Proceedings under this article shall be <for a
12-1 disciplinary action are> governed by the Administrative Procedure
12-2 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
12-3 Statutes).
12-4 (6) The board may assess a person found to have
12-5 violated any provision of this chapter the administrative costs of
12-6 conducting a hearing to determine that violation.
12-7 (7) If a registered <licensed professional> nurse
12-8 voluntarily surrenders his or her license to the board and executes
12-9 a sworn statement that he or she no longer desires to be licensed,
12-10 the board may revoke his or her license without the necessity of
12-11 formal charges, notice, or opportunity of hearing.
12-12 (8) At the time of suspending or revoking a license,
12-13 the board may impose conditions on reinstatement which the nurse
12-14 must satisfy before being re-issued an unencumbered license.
12-15 SECTION 5. Section (c), Article 4525, Revised Statutes, to
12-16 read as follows:
12-17 (c) Any person against whom the board has taken adverse
12-18 action under this article <whose license or certificate to practice
12-19 professional nursing has been revoked or suspended by the board or
12-20 who has been otherwise disciplined by the board> may take an appeal
12-21 to any of the district courts in the county of residence or in
12-22 Travis County, but the decision of the board shall not be enjoined
12-23 or stayed except on application to such district courts after
12-24 notice to the board. Upon application the board may reissue a
12-25 license or certificate to practice professional nursing to a person
13-1 whose license has been revoked or suspended but such application,
13-2 in the case of revocation, shall not be made prior to one year
13-3 after the revocation was issued and shall be made in such manner
13-4 and form as the board may require. At the time of denying an
13-5 application, the board may set a reasonable period of time that
13-6 must lapse before the applicant can re-apply for reinstatement.
13-7 SECTION 6. Section 9, Chapter 590, Acts of the 66th
13-8 Legislature, Regular Session, 1979 (Article 4526b, Vernon's Texas
13-9 Civil Statutes), is amended to read as follows:
13-10 Article 4526b. Inactive Status List
13-11 Any nurse licensed under the provisions of this law, not
13-12 actively or actually engaged in the practice of professional
13-13 nursing, at the expiration of any such license upon written request
13-14 to the board in such form and manner as the board shall determine
13-15 may be placed on an inactive status list which shall be maintained
13-16 by the board. No professional nurse on such inactive status list
13-17 shall perform any professional nursing services or work or violate
13-18 any of the provisions of this law or any rule or regulation of the
13-19 board so long as on such inactive status. At any time such person
13-20 desires to reenter the active practice of professional nursing or
13-21 again begin performing or offering to perform professional nursing
13-22 services, such person shall notify the board and upon payment of
13-23 appropriate fees and meeting requirements as determined by the
13-24 board shall be removed from the inactive status list. The board
13-25 shall adopt rules permitting a nurse on inactive status under this
14-1 section who is sixty-five or older to use the title "Registered
14-2 Nurse Retired" or "RN Retired."
14-3 SECTION 7. Section 2, Article 4527, Revised Statutes, is
14-4 amended to read as follows:
14-5 Sec. 2. The Board shall not maintain unnecessary fund
14-6 balances, and fee amounts shall be set in accordance with this
14-7 requirement. The Board shall set and collect a sales charge for
14-8 copies of any paper or record in the office of the Board and for
14-9 any printed material published by the Board. The charges are to be
14-10 in an amount considered sufficient to reimburse the Board for its
14-11 actual expenses. All fees received by said Board under this law
14-12 shall be placed in the State Treasury to the credit of a special
14-13 fund to be known as the "Professional Nurse Registration Fund" and
14-14 the Comptroller shall upon requisition of the Board from time to
14-15 time draw warrants upon the State Treasurer for the amounts
14-16 specified in such requisition; provided, however, all fees
14-17 collected by the Board and deposited in the Professional Nurse
14-18 Registration Fund shall be expended as specified by itemized
14-19 appropriation in the General Appropriations Act and shall be used
14-20 by the Board, and under its direction, only for purposes of
14-21 carrying out this Act. The Board may use any of the fees and
14-22 charges collected by it, as necessary, to retain, hire, or contract
14-23 for additional prosecutors, hearing examiners, investigators, and
14-24 support staff as necessary to aid in the investigation of
14-25 complaints and the prosecution of persons subject to the Board's
15-1 jurisdiction. This provision shall apply to all fees of whatsoever
15-2 nature as permitted by law. The Board may charge a fee in the
15-3 amount necessary to produce and disseminate to its licensees the
15-4 information required under sec. 16(a) of Article 4525a, Revised
15-5 Statutes. Such fees shall be expended for a periodic newsletter.
15-6 Any balance remaining from this fee at the end of a fiscal year
15-7 will be carried forward for the purposes stated. The financial
15-8 transactions of the Board are subject to audit by the state auditor
15-9 in accordance with Chapter 321, Government Code.
15-10 SECTION 8. Article 4517, Revised Statutes, is amended to
15-11 read as follows:
15-12 Article 4517. Executive Director <Secretary and Bonds>
15-13 Section 1. The Board shall employ a qualified executive
15-14 director <secretary>, who shall not be a member of the board.
15-15 Under the direction of the board, the executive director
15-16 <secretary> shall perform duties required by this Act and duties
15-17 designated by the board. Also, the board shall employ all other
15-18 persons necessary to carry on the work of the board. <The
15-19 executive secretary shall upon employment execute a bond in the sum
15-20 of One Thousand Dollars payable to the Governor. The bond is
15-21 conditioned that the executive secretary shall faithfully perform
15-22 the duties of his or her office and shall account for funds coming
15-23 into his or her hands as executive secretary. The bond shall be
15-24 signed by two or more sufficient sureties or by a surety company
15-25 authorized to do business in this state and approved by the
16-1 president of the board.>
16-2 Sec. 2. The executive director <secretary> or his designee
16-3 shall develop a system of annual performance evaluations based on
16-4 measurable job tasks. All merit pay authorized by the executive
16-5 director <secretary> must be based on the system established under
16-6 this section.
16-7 SECTION 9. Article 4516, Revised Statutes, is repealed.
16-8 SECTION 10. Section 1, Chapter 374, Acts of the 72nd
16-9 Legislature, Regular Session, 1971 (Article 4519a, Vernon's Texas
16-10 Civil Statutes), is amended by renumbering sections (a) and (b) as
16-11 Secs. 1 and 2.
16-12 SECTION 11. Article 4523, Revised Statutes, is amended by
16-13 renumbering sections (a)-(d) as Secs. 1-4.
16-14 SECTION 12. Article 4525, Revised Statutes, is amended by
16-15 renumbering subsections (a)-(j) as Secs. 1-10, renumbering
16-16 subdivisions (1)-(12) of section (a) as (a)-(1), renumbering
16-17 subdivisions (1)-(5) of section (g) as subdivisions (a)-(e),
16-18 renumbering subdivisions (1)-(3) of section (j) as subdivisions
16-19 (a)-(c) and amending subdivision (4) of section (j) to read as
16-20 follows:
16-21 (d <4>) conduct resulting in revocation of probation imposed
16-22 under a conviction for conduct or an offense listed in Subdivision
16-23 (a (1)), (b (2)), or (c (3)) of this section <subsection>.
16-24 SECTION 13. This Act takes effect September 1, 1993.
16-25 SECTION 14. The importance of this legislation and the
17-1 crowded condition of the calendars in both houses create an
17-2 emergency and an imperative public necessity that the
17-3 constitutional rule requiring bills to be read on three several
17-4 days in each house be suspended, and this rule is hereby suspended.