By McDonald 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. Article 4525a, Revised Statutes is amended by
1-5 amending sections 1, 2, 3 and 4; adding new sections 1, 3, and 18;
1-6 and renumbering the current sections accordingly.
1-7 Sec. 1 The board shall adopt rules governing reporting
1-8 required under this article to minimize unnecessary duplicative
1-9 reporting and the reporting of minor incidents. A "minor incident"
1-10 means conduct that does not indicate the nurse's continuing to
1-11 practice professional nursing poses a risk of harm to a client or
1-12 other person.
1-13 Sec. <1> 2. Each registered nurse having reasonable cause to
1-14 suspect that a registered nurse has <exposed or is likely to expose
1-15 a patient or other person unnecessarily to risk of harm because of>
1-16 engaged in unprofessional conduct or failed <, failure to care
1-17 adequately for a patient, failure> to conform to the minimum
1-18 standards of acceptable professional nursing practice, or <impaired
1-19 status> that a registered nurse's practice is or is likely to be
1-20 impaired by chemical dependency or mental illness shall report in a
1-21 signed, written report to the board the <name> identity of the
1-22 nurse <committing the violation or suspected violation> and <any
1-23 other pertinent> such additional information <within the nurse's
2-1 knowledge> as the board may require. <A registered nurse without
2-2 personal knowledge of the nurse's actions is not required to report
2-3 under this section if she or he has reasonable cause to believe the
2-4 nurse has already been reported.>
2-5 Sec. 3. Each Professional Nursing Peer Review Committee that
2-6 finds a registered nurse has engaged in unprofessional conduct or
2-7 failed to conform to the minimum standards of acceptable
2-8 professional nursing practice, or that a registered nurse's
2-9 practice is or is likely to be impaired by chemical dependency or
2-10 mental illness shall report in a signed, written report to the
2-11 board the identity of the nurse and such additional information as
2-12 the board may require. The report shall include what corrective
2-13 action was taken against the nurse and whether the committee
2-14 recommends the board take formal disciplinary action against the
2-15 nurse.
2-16 Sec. <2> 4. (a) Each hospital, health science center,
2-17 nursing home, home health agency, other health-care facility, state
2-18 agency, political subdivision, school of professional nursing,
2-19 temporary nursing service, or person that employs, hires, or
2-20 contracts for the services of registered nurses that terminates,
2-21 suspends for more than 7 days, or takes other substantive
2-22 disciplinary action as defined by the board against a registered
2-23 nurse because <a patient or other person was exposed or is likely
2-24 to be exposed unnecessarily to a risk of harm because of> the
2-25 registered nurse engaged in unprofessional conduct<, failure to
3-1 care adequately for a patient, failure> or failed to conform to the
3-2 minimum standards of acceptable professional nursing practice<, or
3-3 impaired status> or because the registered nurse's practice is or
3-4 is likely to be impaired by chemical dependency or mental illness
3-5 shall report in writing to the board the <name> identity of the
3-6 nurse and such <other pertinent information within the knowledge of
3-7 the facility, agency, school, or person> additional information as
3-8 the board may require.
3-9 (b) Each hospital, nursing home, health science center, home
3-10 health agency, other health-care facility, state agency, political
3-11 subdivision, school of professional nursing, temporary nursing
3-12 service, or person that regularly employs, hires, or otherwise
3-13 contracts for the services of 10 or more registered nurses shall
3-14 develop a written plan for identifying and reporting registered
3-15 nurses in its service who <expose or are likely to expose patients
3-16 or other persons unnecessarily to a risk of harm because of> engage
3-17 in unprofessional conduct<, failure to care adequately for a
3-18 patient, failure> or fail to conform to the minimum standards of
3-19 acceptable professional nursing practice<, or impaired status> or
3-20 whose practice is or is likely to be impaired by chemical
3-21 dependency or mental illness. The plan must include an appropriate
3-22 process for the review of any incident reportable under this
3-23 section by a professional nursing peer review committee established
3-24 and operated under Article 4525b, Revised Statutes, and for the
3-25 affected nurse to submit rebuttal information to that committee.
4-1 The board shall enter into memoranda of understanding with any
4-2 state agency that licenses, registers, or certifies health-care
4-3 facilities or agencies or surveys such facilities or agencies with
4-4 respect to professional nursing care as to how that state agency
4-5 can promote compliance with this subsection.
4-6 (c) The requirement that a report to the Board be reviewed
4-7 by a professional nursing peer review committee applies only to a
4-8 required report, and review by the peer review committee is only
4-9 advisory. The requirement may not be construed as subjecting an
4-10 employer's or other person's administrative decision to discipline
4-11 a registered nurse to the peer review process or as preventing an
4-12 employer or other person from taking disciplinary action before
4-13 review by the peer review committee is conducted. The review by
4-14 the peer review committee established under Subsection (b) of this
4-15 section must include a determination as to whether or not the nurse
4-16 undergoing review engaged in <conduct that exposed or was likely to
4-17 expose a patient or other personal unnecessarily to risk of harm
4-18 because of> unprofessional conduct<, failure to care adequately for
4-19 a patient, failure> or failed to conform to the minimum standards
4-20 of acceptable professional nursing practice<, or impaired status> if
4-21 the registered nurse's practice is or is likely to be impaired by
4-22 chemical dependency or mental illness. The peer review committee's
4-23 determination shall be included in the report made to the board
4-24 under Subsection (a) of this section.
4-25 Sec. <3> 5. Each professional association of registered
5-1 nurses or any organization that conducts a certification or
5-2 accreditation program for registered nurses that expels,
5-3 decertifies, or takes any other substantive disciplinary action, as
5-4 defined by the board, against a registered nurse as a result of the
5-5 registered nurse's failure to conform to the minimum standards of
5-6 acceptable professional nursing practice shall report in writing to
5-7 the board the nurse's name and such other pertinent information
5-8 within the organization's knowledge as the board may require.
5-9 Sec. <4> 6. Each state agency that licenses, registers or
5-10 certifies <surveys> hospitals, nursing homes, health science
5-11 centers, home health agencies, or other health-care facilities or
5-12 agencies or surveys such facilities or agencies with respect to
5-13 quality of professional nursing care provided, unless otherwise
5-14 expressly prohibited by state or federal law, shall report in
5-15 writing to the board any registered nurse that it has reason to
5-16 believe <exposed or is likely to expose patients or other persons
5-17 unnecessarily to a risk of harm because of> has engaged in
5-18 unprofessional conduct<, failure to care adequately for a patient,
5-19 failure> or failed to conform to the minimum standards of
5-20 acceptable professional nursing practice<, or impaired status> or
5-21 that the register nurse's practice is or is likely to be impaired
5-22 by chemical dependency or mental illness.
5-23 Sec. 18. A report under this article shall be handled as a
5-24 complaint under Article 4525(b) except that:
5-25 (a) If the board determines that the conduct reported does
6-1 not indicate the reported nurse's continuing to practice
6-2 professional nursing poses a risk of harm to clients or other
6-3 persons, the board may, with the written consent of the reported
6-4 nurse and the person making the report, elect not to file formal
6-5 charges. In such event, the board shall keep a record of the
6-6 report and shall investigate if it receives 2 or more reports
6-7 involving separate incidents on a nurse in any 5 year period.
6-8 (b) The board need not investigate a report filed by an
6-9 insurer under section 7 of this article, but shall maintain a
6-10 record of the report and investigate if it receives 2 or more
6-11 reports involving separate incidents on a nurse in any 5 year
6-12 period.
6-13 SECTION 2. Amend Article 4525b by amending subsections 1(1)
6-14 and 3; adding new subsections 2 and 3 to read as follows; and
6-15 renumbering the current sections accordingly:
6-16 Sec. 1. In this article:
6-17 (1) "Professional nursing peer review committee" means a
6-18 committee <composed of at least a majority of registered nurses>
6-19 established under the authority of the governing body of a
6-20 national, state, or local professional nursing association, a
6-21 school of professional nursing, the nursing staff of a hospital,
6-22 health science center, nursing home, home health agency, temporary
6-23 nursing service, or other health-care facility, or state agency or
6-24 political subdivision for the purpose of conducting peer review. A
6-25 professional nursing peer review committee includes the employees
7-1 and agents of the committee, including assistants, investigators,
7-2 intervenors, attorneys, and any other person or organization that
7-3 is employed by or services the committee in any capacity.
7-4 Sec. 2. A professional nursing peer review committee shall
7-5 comply with the following standards:
7-6 (a) three-fourths of the members shall be registered nurses;
7-7 (b) have only registered nurses as voting members;
7-8 (c) to the extent feasible, consist of at least one-fourth
7-9 registered nurses who practice in the same area of nursing practice
7-10 as the nurse being reviewed; and
7-11 (d) afford the nurse the opportunity to file a rebuttal
7-12 statement as provided for in subsection 3(c) of this article;
7-13 (e) afford the nurse being reviewed minimum due process
7-14 including notice and opportunity for hearing.
7-15 Sec. 3. Any educational program, facility, entity,
7-16 organization, agency or other person that employs, hires or
7-17 contracts for the services of a registered nurse and that nurse
7-18 practices professional nursing in or for another program, facility,
7-19 entity, organization or agency or person, the nurse shall be
7-20 subject to peer review by either or both persons and the peer
7-21 review committee when reviewing that nurse shall be considered as
7-22 established under the authority of both persons. The two persons
7-23 may contract with respect to which will conduct peer review of the
7-24 nurse.
7-25 Sec. <3> 4. (a) A professional nursing peer review
8-1 committee shall disclose on request written or oral communications
8-2 made to the committee and the records and proceedings of the
8-3 committee to:
8-4 (1) the state board of registration or licensure of any
8-5 state; or
8-6 (2) a law enforcement authority investigating a criminal
8-7 matter.
8-8 (b) A professional nursing peer review committee may
8-9 disclose written or oral communications made to the committee and
8-10 the records and proceedings of the committee to:
8-11 (1) the state bard of registration or licensure of any
8-12 state;
8-13 (2) a law enforcement authority investigating a criminal
8-14 matter;
8-15 (<1> 3) the association, school, agency, facility, or other
8-16 organization under whose authority the committee is established;
8-17 (<2> 4) another professional nursing peer review committee;
8-18 (<3> 5) a peer assistance program approved by the board
8-19 under Chapter 467, Health and Safety Code;
8-20 (<4> 6) appropriate state or federal agencies or accrediting
8-21 organizations which accredit health-care facilities or schools of
8-22 nursing or which survey facilities for quality of care; or
8-23 (<5> 7) persons engaged in bona fide research, if all
8-24 individual-identifying information is deleted.
8-25 (c) If a professional nursing peer review committee
9-1 discloses information under <Subsections (a) of> this section that
9-2 could result in the reprimand, suspension, termination, or other
9-3 disciplinary action of a professional nurse, or itself recommends
9-4 or takes such action, the committee shall provide the nurse with a
9-5 detailed summary of information disclosed or the basis of its
9-6 action or recommendation. The nurse shall be permitted an
9-7 opportunity to offer rebuttal information and to submit a rebuttal
9-8 statement of reasonable length. The rebuttal statement shall be
9-9 included with the information disclosed.
9-10 (d) If a committee discloses information <to a nurse> under
9-11 this section, the committee has not by that action waived the
9-12 privilege of nondisclosure of committee information and
9-13 proceedings.
9-14 SECTION 3. Amend Chapter 7, Title 71, Vernon's Texas Civil
9-15 Statutes, by adding a new Article 4524 that reads as follows:
9-16 Article 4524. Stipulations on License
9-17 The board, as a condition of initial or continued licensure,
9-18 may impose stipulations that place such limitations on a registered
9-19 nurse's practice as it determines by clear and convincing evidence
9-20 are reasonably necessary to prevent the endangering of persons
9-21 under the nurse's care. If the stipulation is based on the nurse's
9-22 having a disability, the form of the stipulation shall be that the
9-23 nurse may not practice in a certain setting, area, or manner unless
9-24 an accommodation is made that removes the need for the limitation.
9-25 Proceedings to impose stipulations shall be begun by filing a
10-1 written request with the board. Such request may be made by any
10-2 person or filed by the board on its own initiative. Upon receipt
10-3 of such a request, the board shall notify the nurse and make a
10-4 timely and appropriate investigation of the request. If the
10-5 investigation reveals probable cause to impose stipulations, the
10-6 board shall file a "Notice of Intent to Impose Stipulations" and
10-7 immediately forward a copy to the nurse. The notice shall set out
10-8 in specificity the factual basis for the alleged need to impose
10-9 stipulations on the nurse's practice. The nurse shall be entitled
10-10 to a hearing in accordance with Article 4525(b). The imposing of
10-11 stipulations under this section shall not be considered to be
10-12 disciplinary action for any purpose. Any time after six months
10-13 have elapsed, the nurse shall have the right to petition the board
10-14 to remove the stipulations by submitting a sworn statement and
10-15 supporting evidence that the basis for imposing the stipulations no
10-16 longer exists. The board shall remove the stipulations unless it
10-17 finds by clear and convincing evidence that they remain reasonably
10-18 necessary to prevent the endangering of patients under the nurse's
10-19 care.
10-20 SECTION 4. Article 4525, Revised Statutes, is amended by
10-21 adding a new Subsection (k) to read as follows:
10-22 (k) A nurse may petition the board to seal its records
10-23 relating to any disciplinary action the board has taken against the
10-24 nurse, other than revocation of license, if 1) neither the board
10-25 nor another jurisdiction has taken any disciplinary action against
11-1 the nurse for at least five years, 2) the nurse has not been on
11-2 probation from the board or another jurisdiction for at least five
11-3 years, and 3) neither the board nor another jurisdiction has any
11-4 complaint, charge or investigation pending against the nurse. The
11-5 board shall deny the petition if it finds that sealing the records
11-6 would not be in the public interest. If the board proposes to deny
11-7 the petition, the nurse shall be entitled to a hearing in
11-8 accordance with Article 4525(b). If a complaint, charge or
11-9 investigation is pending against the nurse at the time the petition
11-10 is filed or one is subsequently initiated, the board shall delay or
11-11 suspend action on the petition until that complaint, charge or
11-12 investigation has been resolved. If the complaint, charge or
11-13 investigation results in disciplinary action, the board shall deny
11-14 the petition. If no disciplinary action results, the board shall
11-15 proceed with action on the petition. Any record sealed under this
11-16 section shall be automatically unsealed upon the subsequent filing
11-17 of formal charges against the nurse by the board under section (b)
11-18 of this article or upon receipt of a certified copy of formal
11-19 charges filed or disciplinary action taken by another jurisdiction.
11-20 If the charges do not result in any disciplinary action against the
11-21 nurse, the board may reseal the records. Any information in a
11-22 licensee's record sealed under this section, shall be confidential
11-23 and not subject to disclosure under Chapter 424, Acts of the 63rd
11-24 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
11-25 Texas Civil Statutes), and not subject to disclosure, discovery,
12-1 subpoena or other means of legal compulsion for their release to
12-2 anyone other than the board or its employees or agents except that
12-3 the information may be disclosed to:
12-4 1. persons involved with the board in a disciplinary action
12-5 against the nurse;
12-6 2. professional nursing licensing or disciplinary boards in
12-7 other jurisdictions;
12-8 3. peer assistance programs approved by the board under
12-9 Chapter 701, Acts of the 69th Legislature, Regular Session, 1985
12-10 (Chapter 467, Health and Safety Code);
12-11 4. law enforcement agencies; and
12-12 5. persons engaged in bona fide research provided all
12-13 individual-identifying information has been deleted.
12-14 6. to other persons pursuant to an order of a court of
12-15 competent jurisdiction that finds, after an in camera review of the
12-16 record, that denial of access to such persons is not in the public
12-17 interest. The court may impose any limitations on redisclosure
12-18 that it determines are in the public interest.
12-19 SECTION 5. Subsection 5(c) of Article 4518, Revised
12-20 Statutes, is amended to read:
12-21 (c) in the administration of medications or treatments as
12-22 ordered by <a licensed physician, including a podiatric physician
12-23 licensed by the Texas State Board of Podiatry Examiners, or
12-24 dentist> a person authorized to order such medications or
12-25 treatments under the laws of this State;
13-1 SECTION 6. Subsection (c), Article 4523, Revised Statutes,
13-2 is amended to read as follows:
13-3 (c) To allow a nurse to satisfy a requirement imposed 1)
13-4 under Article 4526, Revised Statutes, to renew a license expired
13-5 for two years or more, 2) <or a requirement imposed> under Article
13-6 4526b, Revised Statutes, to reactivate a nursing license from
13-7 inactive status, or 3) under Article 4525(c), Revised Statutes, to
13-8 reissue a suspended or revoked license, the board may issue a
13-9 temporary permit to practice professional nursing for the limited
13-10 purpose of satisfying the requirement. A permit issued under this
13-11 subsection expires on the earlier of the receipt of a permanent
13-12 license or six months from the date of issuance.
13-13 SECTION 7. Subsection (b), Article 4525, Revised Statutes,
13-14 is amended to read.
13-15 (b) Proceedings under this article shall be governed by the
13-16 following:
13-17 (1) Proceedings shall be begun by filing a written complaint
13-18 with the board <of nurse examiners>. Such complaint may be made by
13-19 any person or filed by the board on its own initiative.
13-20 (2) Upon filing a complaint, the board may conduct a
13-21 preliminary investigation into the identity of the person(s) named
13-22 or described in the complaint. Thereafter, unless it would
13-23 jeopardize an investigation, the board shall notify the registered
13-24 nurse that a complaint has been filed and the nature of the
13-25 complaint.
14-1 (3) An information file about each complaint filed relating
14-2 to a licensee shall be maintained by the board. <If a written
14-3 complaint is filed with the board relating to a licensee,> The
14-4 board, at least as frequently as <quarterly> every four months and
14-5 until final disposition of the complaint, shall notify the <party
14-6 that filed the complaint> the complainant and the person being
14-7 complained against of the status of the file unless notice would
14-8 jeopardize an investigation.
14-9 (4) The board shall make a timely and appropriate
14-10 investigation of the complaint and may <issue a warning or reprimand
14-11 to the person against whom the complaint was filed>, upon written
14-12 waiver of notice and hearing and agreement of the licensee, enter
14-13 orders containing the full range of disciplinary actions. If the
14-14 investigation reveals probable cause to take further disciplinary
14-15 action, the board <shall> may file formal charges against the
14-16 registered nurse stating the provisions in this chapter or the
14-17 board's rules that are alleged to have been violated and a brief
14-18 description of the acts or omissions that constituted the
14-19 violation. <If the board proposes to refuse to admit a person to
14-20 its examination, to refuse to issue a temporary permit, license,
14-21 certificate of registration, certificate or re-registration, or to
14-22 suspend or revoke a person's permit, license, or certificate, the
14-23 person is entitled to a hearing before the board. The hearing may
14-24 be before a subcommittee of the board, a majority of which is
14-25 composed of registered nurses. The person shall on request be
15-1 granted a hearing before the entire board.>
15-2 (5) Proceedings under this article shall be governed by the
15-3 Administrative Procedures and Texas Register Act, Article 6252-13a,
15-4 Revised Statutes.
15-5 (6) The board may assess a person found to have violated any
15-6 provision of this chapter, the administrative costs of conducting a
15-7 hearing to determine that violation.
15-8 (7) If a <licensed professional> registered nurse voluntarily
15-9 surrenders his or her license to the board and executes a sworn
15-10 statement that he or she no longer desires to be licensed, the
15-11 board may revoke his or her license without the necessity of
15-12 formal, charges, notice, or opportunity of hearing.
15-13 (8) At the time of suspending or revoking a license, the
15-14 board may impose conditions on reinstatement which the nurse must
15-15 satisfy before being re-issued an unencumbered license.
15-16 SECTION 8. Amend subsection c of Article 4525, Revised
15-17 Statutes, to read:
15-18 (c) Any person <whose license or certificate to practice
15-19 professional nursing has been revoked or suspended by the board or
15-20 who has been otherwise disciplined by the board> against whom the
15-21 board has taken adverse action under this article may take an
15-22 appeal to any of the district courts in the county of residence or
15-23 in Travis County, but the decision of the board shall not be
15-24 enjoined or stayed except on application to such district courts
15-25 after notice to the board. Upon application, the board may reissue
16-1 a license or certificate to practice professional nursing to a
16-2 person whose license has been revoked or suspended but such
16-3 application, in the case of revocation, shall not be made prior to
16-4 one year after the revocation was issued and shall be made in such
16-5 manner as the board may require. At the time of denying an
16-6 application, the board may set a reasonable period of time that
16-7 must lapse before the applicant can re-apply for reinstatement.
16-8 SECTION 9. Article 4526b, Revised Statutes, is amended to
16-9 read:
16-10 Any nurse licensed under the provisions of this law, not
16-11 actively or actually engaged in the practice of professional
16-12 nursing, at the expiration of any such license upon written request
16-13 to the board in such form and manner as the board shall determine
16-14 may be placed on an inactive status list which shall be maintained
16-15 by the board. No professional nurse on such inactive status list
16-16 shall perform any of the professional nursing services or work or
16-17 violate any of the provisions of this law or any rule or regulation
16-18 of the board so long as on such inactive status. At any time such
16-19 person desires to reenter the active practice of professional
16-20 nursing or again begin performing or offering to perform
16-21 professional nursing services, such person shall notify the board
16-22 and upon payment of appropriate fees and meeting requirements as
16-23 determined by the board shall be removed from the inactive status
16-24 list. The board shall adopt rules permitting a nurse on inactive
16-25 status under this section who is sixty-five or older to use the
17-1 title "Registered Nurse Retired" or "RN Retired."
17-2 SECTION 10. This Act takes effect September 1, 1993.
17-3 SECTION 11. The importance of this legislation and the
17-4 crowded condition of the calendars in both houses create an
17-5 emergency and an imperative public necessity that the
17-6 constitutional rule requiring bills to be read on three several
17-7 days in each house be suspended, and this rule is hereby suspended.