1-1 By: McDonald (Senate Sponsor - Carriker) H.B. No. 756
1-2 (In the Senate - Received from the House April 26, 1993;
1-3 April 27, 1993, read first time and referred to Committee on Health
1-4 and Human Services; May 23, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 9, Nays
1-6 0; May 23, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR H.B. No. 756 By: Wentworth
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of the practice of professional nursing.
1-22 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-23 SECTION 1. Article 4525a, Revised Statutes, is amended by
1-24 amending Sections 1, 2, 3, and 4 and adding Sections 1A, 6A, and
1-25 12A to read as follows:
1-26 Sec. 1. Each registered nurse having reasonable cause to
1-27 suspect that a registered nurse has exposed or is likely to expose
1-28 a patient or other person unnecessarily to a risk of harm, has
1-29 engaged in <because of> unprofessional conduct, has failed
1-30 <failure> to care adequately for a patient, or has failed <failure>
1-31 to conform to the minimum standards of acceptable professional
1-32 nursing practice, or that a registered nurse's practice is or is
1-33 likely to be impaired by chemical dependency <impaired status>
1-34 shall report in a signed, written report to the board the identity
1-35 <name> of the nurse <committing the violation or suspected
1-36 violation> and such additional <any other pertinent> information
1-37 <within the nurse's knowledge> as the board may require. <A
1-38 registered nurse without personal knowledge of the nurse's actions
1-39 is not required to report under this section if she or he has
1-40 reasonable cause to believe the nurse has already been reported.>
1-41 Sec. 1A. A professional nursing peer review committee
1-42 operating under Article 4525b, Revised Statutes, that finds a
1-43 registered nurse exposed or is likely to expose a patient or other
1-44 person unnecessarily to a risk of harm, engaged in unprofessional
1-45 conduct, failed to care adequately for a patient, or failed to
1-46 conform to the minimum standards of acceptable professional nursing
1-47 practice, or that a registered nurse's practice is or is likely to
1-48 be impaired by chemical dependency shall report in a signed,
1-49 written report to the board the identity of the nurse and such
1-50 additional information as the board may require. The report shall
1-51 include what corrective action was taken against the nurse and
1-52 whether the committee recommends the board take formal disciplinary
1-53 action against the nurse.
1-54 Sec. 2. (a) Each hospital, health science center, nursing
1-55 home, home health agency, other health-care facility, state agency,
1-56 political subdivision, school of professional nursing, temporary
1-57 nursing service, or person that employs, hires, or contracts for
1-58 the services of registered nurses that terminates, suspends for
1-59 more than 7 days, or takes other substantive disciplinary action as
1-60 defined by the board against a registered nurse because the
1-61 registered nurse has exposed or is likely to expose a patient or
1-62 other person <was exposed or is likely to be exposed> unnecessarily
1-63 to a risk of harm, has engaged in <because of> unprofessional
1-64 conduct, has failed <failure> to care adequately for a patient, or
1-65 has failed <failure> to conform to the minimum standards of
1-66 acceptable professional nursing practice<,> or because the
1-67 registered nurse's practice is or is likely to be impaired by
1-68 chemical dependency <impaired status> shall report in writing to
2-1 the board the identity <name> of the nurse and such additional
2-2 information as the board may require <other pertinent information
2-3 within the knowledge of the facility, agency, school, or person>.
2-4 (b) Each hospital, nursing home, health science center, home
2-5 health agency, other health-care facility, state agency, political
2-6 subdivision, school of professional nursing, temporary nursing
2-7 service, or person that regularly employs, hires, or otherwise
2-8 contracts for the services of 10 or more registered nurses shall
2-9 develop a written plan for identifying and reporting registered
2-10 nurses in its service who expose or are likely to expose patients
2-11 or other persons unnecessarily to a risk of harm, engage in
2-12 <because of> unprofessional conduct, fail <failure> to care
2-13 adequately for a patient, or fail <failure> to conform to the
2-14 minimum standards of acceptable professional nursing practice, or
2-15 whose practice is or is likely to be impaired by chemical
2-16 dependency <impaired status>. The plan must include an appropriate
2-17 process for the review of any incident reportable under this
2-18 section by a professional nursing peer review committee established
2-19 and operated under Article 4525b, Revised Statutes, and for the
2-20 affected nurse to submit rebuttal information to that committee.
2-21 The board shall enter into memoranda of understanding with any
2-22 state agency that licenses, registers, or certifies health-care
2-23 facilities or agencies or surveys such facilities or agencies with
2-24 respect to professional nursing care as to how that state agency
2-25 can promote compliance with this subsection.
2-26 (c) The requirement that a report to the board be reviewed
2-27 by a professional nursing peer review committee applies only to a
2-28 required report, and review by the peer review committee is only
2-29 advisory. The requirement may not be construed as subjecting an
2-30 employer's or other person's administrative decision to discipline
2-31 a registered nurse to the peer review process or as preventing an
2-32 employer or other person from taking disciplinary action before
2-33 review by the peer review committee is conducted. The review by
2-34 the peer review committee established under Subsection (b) of this
2-35 section must include a determination as to whether or not the nurse
2-36 undergoing review <engaged in conduct that> exposed or was likely
2-37 to expose a patient or other person unnecessarily to risk of harm,
2-38 engaged in <because of> unprofessional conduct, failed <failure> to
2-39 care adequately for a patient, or failed <failure> to conform to
2-40 the minimum standards of acceptable professional nursing practice,
2-41 or as to whether the registered nurse's practice is or is likely to
2-42 be impaired by chemical dependency <impaired status>. The peer
2-43 review committee's determination shall be included in the report
2-44 made to the board under Subsection (a) of this section.
2-45 Sec. 3. Each professional association of registered nurses
2-46 or any organization that conducts a certification or accreditation
2-47 program for registered nurses that expels, decertifies, or takes
2-48 any other substantive disciplinary action, as defined by the board,
2-49 against a registered nurse as a result of the registered nurse's
2-50 failure to conform to the minimum standards of acceptable
2-51 professional nursing practice shall report in writing to the board
2-52 the identity of the nurse <nurse's name> and such additional
2-53 information <other pertinent information within the organization's
2-54 knowledge> as the board may require.
2-55 Sec. 4. Each state agency that licenses, registers or
2-56 certifies <surveys> hospitals, nursing homes, health science
2-57 centers, home health agencies, or other health-care facilities or
2-58 agencies or surveys such facilities or agencies with respect to
2-59 quality of professional nursing care provided, unless otherwise
2-60 expressly prohibited by state or federal law, shall report in
2-61 writing to the board any registered nurse that it has reason to
2-62 believe exposed or is likely to expose patients or other persons
2-63 unnecessarily to a risk of harm, engaged in <because of>
2-64 unprofessional conduct, failed <failure> to care adequately for a
2-65 patient, or failed <failure> to conform to the minimum standards of
2-66 acceptable professional nursing practice, or that the registered
2-67 nurse's practice is or is likely to be impaired by chemical
2-68 dependency <impaired status>.
2-69 Sec. 6A. (a) The board by rule shall adopt rules governing
2-70 required reporting under this article to minimize:
3-1 (1) unnecessary duplicative reporting; and
3-2 (2) the reporting of minor incidents.
3-3 (b) In this section, "minor incident" means conduct that
3-4 does not indicate the nurse's continuing to practice professional
3-5 nursing poses a risk of harm to a client or other person.
3-6 Sec. 12A. (a) Except as provided by Subsections (b) and (c)
3-7 of this section, a report under this article shall be handled as a
3-8 complaint under Section (b), Article 4525, Revised Statutes.
3-9 (b) If the board determines that the conduct reported does
3-10 not indicate the reported nurse's continuing to practice
3-11 professional nursing poses a risk of harm to clients or other
3-12 persons, the board may, with the written consent of the reported
3-13 nurse and the person making the report, elect not to proceed with
3-14 an investigation or to file formal charges. In such event, the
3-15 board shall keep a record of the report and shall investigate if it
3-16 receives two or more reports involving separate incidents on a
3-17 nurse in any five-year period.
3-18 (c) The board is not required to investigate a report filed
3-19 by an insurer under Section 5 of this article, but shall maintain a
3-20 record of the report and investigate if it receives two or more
3-21 reports involving separate incidents on a nurse in any five-year
3-22 period.
3-23 SECTION 2. Section 11(c), Article 4525a, Revised Statutes,
3-24 is amended to read as follows:
3-25 (c) A person who sues under this section has the burden of
3-26 proof, but in the event of a determination by either the board or a
3-27 court of competent jurisdiction that the report or abstract made
3-28 the subject of the cause of action was authorized or required under
3-29 Section 1, 1A, 2, 3, 4, 5, 6, 7, or 8 of this article and that it
3-30 was made without malice, it is a rebuttable presumption that a
3-31 person's employment was suspended or terminated for reporting under
3-32 this article if the person is suspended or terminated within 60
3-33 days after making the report.
3-34 SECTION 3. Sections 12(a) and (b), Article 4525a, Revised
3-35 Statutes, are amended to read as follows:
3-36 (a) The board shall notify each registered nurse who is
3-37 reported to the board under Section 1, 1A, 2, 3, 4, or 5 of this
3-38 article of the filing of the report unless doing so would
3-39 jeopardize an active investigation.
3-40 (b) The registered nurse or the nurse's authorized
3-41 representative is entitled on request to review any report
3-42 submitted to the board under Section 1, 1A, 2, 3, 4, or 5 of this
3-43 article unless doing so would jeopardize an active investigation.
3-44 The identity of the individual making or signing the report may not
3-45 be revealed.
3-46 SECTION 4. Section 1(1), Article 4525b, Revised Statutes, is
3-47 amended to read as follows:
3-48 (1) "Professional nursing peer review committee" means
3-49 a committee <composed of at least a majority of registered nurses>
3-50 established under the authority of the governing body of a
3-51 national, state, or local professional nursing association, a
3-52 school of professional nursing, the nursing staff of a hospital,
3-53 health science center, nursing home, home health agency, temporary
3-54 nursing service, or other health-care facility, or state agency or
3-55 political subdivision for the purpose of conducting peer review. A
3-56 professional nursing peer review committee includes the employees
3-57 and agents of the committee, including assistants, investigators,
3-58 intervenors, attorneys, and any other person or organization that
3-59 is employed by or serves the committee in any capacity.
3-60 SECTION 5. Article 4525b, Revised Statutes, is amended by
3-61 adding Sections 1A and 1B to read as follows:
3-62 Sec. 1A. A professional nursing peer review committee must:
3-63 (1) have registered nurses as three-fourths of its
3-64 members;
3-65 (2) have only registered nurses as voting members;
3-66 (3) to the extent feasible, consist of at least one
3-67 registered nurse who has a working familiarity with the area of
3-68 nursing practice in which the nurse being reviewed practices;
3-69 (4) afford the nurse being reviewed minimum due
3-70 process, including notice and opportunity for hearing; and
4-1 (5) afford the nurse the opportunity to file a
4-2 rebuttal statement as provided by Section 3(c) of this article.
4-3 Sec. 1B. A registered nurse who, as a temporary agency
4-4 nurse, faculty member, or similar personnel, practices professional
4-5 nursing for a person, educational institution, or health-care
4-6 facility, agency, or entity other than the one that employs or
4-7 directly compensates the nurse shall be subject to peer review by
4-8 both. For the purposes of exchange of information, the peer review
4-9 committee reviewing the nurse's conduct is considered as
4-10 established under the authority of both. The two entities may
4-11 contract with respect to which entity will conduct peer review of
4-12 the nurse.
4-13 SECTION 6. Sections 3(b) and (d), Article 4525b, Revised
4-14 Statutes, are amended to read as follows:
4-15 (b) A professional nursing peer review committee may
4-16 disclose written or oral communications made to the committee and
4-17 the records and proceedings of the committee to:
4-18 (1) the state board of registration or licensure of
4-19 any state;
4-20 (2) a law enforcement authority investigating a
4-21 criminal matter;
4-22 (3) <(1)> the association, school, agency, facility,
4-23 or other organization under whose authority the committee is
4-24 established;
4-25 (4) <(2)> another professional nursing peer review
4-26 committee;
4-27 (5) <(3)> a peer assistance program approved by the
4-28 board under Chapter 467, Health and Safety Code;
4-29 (6) <(4)> appropriate state or federal agencies or
4-30 accrediting organizations which accredit health-care facilities or
4-31 schools of nursing or which survey facilities for quality of care;
4-32 or
4-33 (7) <(5)> persons engaged in bona fide research, if
4-34 all individual-identifying information is deleted.
4-35 (d) If a committee discloses information <to a nurse> under
4-36 this section, the committee has not by that action waived the
4-37 privilege of nondisclosure of committee information and
4-38 proceedings.
4-39 SECTION 7. Section (c), Article 4523, Revised Statutes, is
4-40 amended to read as follows:
4-41 (c) To allow a nurse to satisfy a requirement imposed by the
4-42 board <under Article 4526, Revised Statutes,> to renew an expired
4-43 <a> license <expired for two years or more or a requirement imposed
4-44 under Article 4526b, Revised Statutes>, to reactivate an inactive
4-45 <a nursing> license <from inactive status>, or to reissue a
4-46 suspended, revoked, or surrendered license, the board may issue a
4-47 temporary permit to practice professional nursing for the limited
4-48 purpose of satisfying the requirement. A permit issued under this
4-49 subsection expires on the earlier of the receipt of a permanent
4-50 license or six months from the date of issuance.
4-51 SECTION 8. Subsections (a), (b), and (c), Article 4525,
4-52 Revised Statutes, are amended to read as follows:
4-53 (a) The board <of nurse examiners> may refuse to admit
4-54 persons to the licensing examination <its examinations>, <may
4-55 refuse> to issue or renew a license, <or certificate of
4-56 registration> or <to issue a certificate of re-registration, may
4-57 refuse> to issue a temporary permit for any of the reasons for
4-58 which the board may take disciplinary action against a registered
4-59 nurse under Subsection (b) of this article. If the board proposes
4-60 to refuse to admit a person to the examination, to issue or renew a
4-61 license, or to issue a temporary permit, the board shall notify the
4-62 person of the basis for its decision. A person who is refused
4-63 admittance to the examination or the renewal or issuance of a
4-64 license or temporary permit is entitled to a hearing before an
4-65 administrative law judge of the State Office of Administrative
4-66 Hearings.
4-67 (b) The board may take disciplinary action against a
4-68 registered nurse<, may issue a warning or reprimand with or without
4-69 stipulations, may suspend for any period not to exceed 5 years, or
4-70 may revoke the license or certificate of any practitioner of
5-1 professional nursing,> for any of the following reasons:
5-2 (1) The violation of any of the provisions of this
5-3 law, any rule, regulation not inconsistent with this law, or order
5-4 issued hereinunder.
5-5 (2) Fraud <Is guilty of fraud> or deceit in procuring
5-6 or attempting to procure a license to practice professional
5-7 nursing.
5-8 (3) Conviction of a crime of the grade of felony, or a
5-9 crime of lesser grade which involves moral turpitude, or any
5-10 conduct resulting in the revocation of probation imposed pursuant
5-11 to such conviction.
5-12 (4) The use of any nursing license, certificate,
5-13 diploma or permit, or transcript of such license, certificate,
5-14 diploma or permit, which has been fraudulently purchased, issued,
5-15 counterfeited, or materially altered.
5-16 (5) The impersonation of, or the acting as a proxy
5-17 for, another in any examination required by law to obtain a license
5-18 to practice professional nursing.
5-19 (6) Aiding or abetting, directly or indirectly, or in
5-20 any manner whatsoever, any unlicensed person in connection with the
5-21 unauthorized practice of professional nursing.
5-22 (7) Revocation, suspension, or denial of or any other
5-23 action relating to the license to practice nursing in another
5-24 jurisdiction. Certified copy of the order of denial, suspension,
5-25 revocation, or any other action shall be conclusive evidence
5-26 thereof.
5-27 (8) Intemperate use of alcohol or drugs that the board
5-28 determines endangers or could endanger patients. Intemperate use
5-29 includes but is not limited to practicing professional nursing or
5-30 being on duty or call while under the influence of alcohol or
5-31 drugs.
5-32 (9) Unprofessional or dishonorable conduct which, in
5-33 the opinion of the board, is likely to deceive, defraud, or injure
5-34 patients or the public.
5-35 (10) Adjudication of mental incompetency.
5-36 (11) Lack of fitness to practice by reason of mental
5-37 or physical health that could result in injury to patients or the
5-38 public.
5-39 (12) Failing to care adequately for patients or to
5-40 conform to the minimum standards of acceptable professional nursing
5-41 practice that, in the opinion of the board, exposes a patient or
5-42 other person unnecessarily to risk of harm.
5-43 <(b) Proceedings under this article shall be begun by filing
5-44 a written complaint with the board of nurse examiners. Such
5-45 complaint may be made by any person or filed by the board on its
5-46 own initiative. Unless it would jeopardize an investigation, the
5-47 board shall notify the registered nurse that a complaint has been
5-48 filed and the nature of the complaint. An information file about
5-49 each complaint filed relating to a licensee shall be maintained by
5-50 the board. If a written complaint is filed with the board relating
5-51 to a licensee, the board at least as frequently as quarterly and
5-52 until final disposition of the complaint, shall notify the party
5-53 that filed the complaint of the status of the file unless notice
5-54 would jeopardize an investigation. The board shall make a timely
5-55 and appropriate preliminary investigation of the complaint and may
5-56 issue a warning or reprimand to the person against whom the
5-57 complaint was filed. If the investigation reveals probable cause
5-58 to take further disciplinary action, the board shall file formal
5-59 charges against the registered nurse stating the provisions of this
5-60 chapter or the board's rules that are alleged to have been violated
5-61 and a brief description of the acts or omissions that constituted
5-62 the violation. If the board proposes to refuse to admit a person
5-63 to its examination, to refuse to issue a temporary permit, license,
5-64 certificate of registration, certificate of re-registration, or to
5-65 suspend or revoke a person's permit, license, or certificate, the
5-66 person is entitled to a hearing before the board. The hearing may
5-67 be before a subcommittee of the board, a majority of which is
5-68 composed of registered nurses. The person shall on request be
5-69 granted a hearing before the entire board. Proceedings for a
5-70 disciplinary action are governed by the Administrative Procedure
6-1 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-2 Statutes). The board may assess a person found to have violated
6-3 any provision of this chapter the administrative costs of
6-4 conducting a hearing to determine that violation. If a licensed
6-5 professional nurse voluntarily surrenders his or her license to the
6-6 board and executes a sworn statement that he or she no longer
6-7 desires to be licensed, the board may revoke his or her license
6-8 without the necessity of formal charges, notice, or opportunity of
6-9 hearing.>
6-10 (c)(1) Any person against whom the board has taken adverse
6-11 action under this chapter <whose license or certificate to practice
6-12 professional nursing has been revoked or suspended by the board or
6-13 who has been otherwise disciplined by the board> may take an appeal
6-14 to any of the district courts in the county of residence or in
6-15 Travis County, but the decision of the board shall not be enjoined
6-16 or stayed except on application to such district courts after
6-17 notice to the board.
6-18 (2) Upon application the board may reissue a license
6-19 or certificate to practice professional nursing to a person whose
6-20 license has been revoked, <or> suspended, or surrendered, but such
6-21 application, in case of revocation, shall not be made prior to one
6-22 year after the revocation was issued and shall be made in such
6-23 manner and form as the board may require. At the time the board
6-24 denies an application for reinstatement, it may set a reasonable
6-25 period that must lapse before the applicant may reapply for
6-26 reinstatement.
6-27 SECTION 9. Chapter 7, Title 71, Revised Statutes, is amended
6-28 by adding Articles 4525.1-4525.6 to read as follows:
6-29 Art. 4525.1. PENALTIES AND SANCTIONS. (a) If the board
6-30 finds a person has committed any act set forth in Subsection (b),
6-31 Article 4525, Revised Statutes, or has violated any provision of
6-32 this chapter or a rule or order of the board, it shall enter an
6-33 order imposing one or more of the following:
6-34 (1) deny the person's application for a license,
6-35 license renewal, or temporary permit;
6-36 (2) issue a written warning;
6-37 (3) administer a public reprimand;
6-38 (4) limit, or restrict the registered nurse's license,
6-39 including limiting the registered nurse's practice to, or excluding
6-40 it from, one or more specified activities of professional nursing
6-41 or stipulating periodic board review;
6-42 (5) suspend the registered nurse's license;
6-43 (6) revoke the registered nurse's license;
6-44 (7) require the registered nurse to submit to care,
6-45 counseling, or treatment of health providers designated by the
6-46 board as a condition for the issuance or renewal of a license;
6-47 (8) require the registered nurse to participate in a
6-48 program of education or counseling prescribed by the board;
6-49 (9) require the registered nurse to practice under the
6-50 direction of a registered nurse designated by the board for a
6-51 specified period of time;
6-52 (10) require the registered nurse to perform public
6-53 service considered appropriate by the board; or
6-54 (11) assess a monetary fine.
6-55 (b) The board may probate any penalty imposed on the
6-56 registered nurse.
6-57 (c) The board in its discretion may accept the voluntary
6-58 surrender of a license. The board may not reinstate a surrendered
6-59 license unless it determines the registered nurse is competent to
6-60 resume practice.
6-61 (d) When the board suspends, revokes, or accepts surrender
6-62 of a license, it may impose conditions for reinstatement that the
6-63 person must satisfy before the board may issue an unrestricted
6-64 license.
6-65 (e) The schedule of sanctions adopted by the board by rule
6-66 shall be used by the State Office of Administrative Hearings for
6-67 any sanction imposed as the result of a hearing conducted by that
6-68 office.
6-69 Art. 4525.2. COMPLAINT AND INVESTIGATION. (a) Any person
6-70 may file a complaint against a registered nurse with the board, or
7-1 the board may file a complaint on its own initiative. The
7-2 complaint shall be in writing and signed by the complainant.
7-3 (b) Except as otherwise provided by this article, all
7-4 investigations shall be conducted by the board or persons
7-5 authorized by the board to conduct them. Each complaint against a
7-6 registered nurse that requires a determination of professional
7-7 nursing competency shall be reviewed by a board member, consultant,
7-8 or employee with professional nursing background considered
7-9 sufficient by the board.
7-10 (c) On the filing of a complaint, the board may conduct a
7-11 preliminary investigation into the identity of the person named or
7-12 described in the complaint. After the preliminary investigation,
7-13 unless it would jeopardize an investigation, the board shall notify
7-14 the registered nurse that a complaint has been filed and the nature
7-15 of the complaint. The board shall make an initial investigation of
7-16 the complaint to determine if formal charges should be filed
7-17 charging the registered nurse with having committed an act or acts
7-18 prohibited by Subsection (b), Article 4525, Revised Statutes, or
7-19 that violate a statute, board rule, or board order. The first
7-20 consideration of the board shall be whether the registered nurse's
7-21 continuing to practice professional nursing poses a risk of harm to
7-22 clients or other persons.
7-23 Art. 4525.3. AGREED DISPOSITION. (a) The board may, unless
7-24 precluded by law or this chapter, make a disposition of any
7-25 complaint by stipulation, agreed settlement, agreed order, or
7-26 dismissal.
7-27 (b) An agreed disposition is considered a disciplinary order
7-28 for purposes of reporting under this chapter and of administrative
7-29 hearings and proceedings by state and federal regulatory agencies
7-30 regarding the practice of professional nursing. An agreed order is
7-31 a public record. In civil or criminal litigation, an agreed
7-32 disposition is a settlement agreement under Rule 408, Texas Rules
7-33 of Civil Evidence, and Rule 408, Texas Rules of Criminal Evidence.
7-34 (c) This article does not apply to a licensee who has
7-35 previously entered into an agreed disposition with the board of a
7-36 different disciplinary matter or whose license the board is seeking
7-37 to revoke.
7-38 Art. 4525.4. RIGHTS OF REGISTERED NURSE. (a) Except in the
7-39 case of a temporary suspension authorized under this chapter or
7-40 action taken in accordance with the terms of an agreement between
7-41 the board and a licensee, a revocation, suspension, or other
7-42 disciplinary action relating to a license is not effective unless,
7-43 before board proceedings are instituted:
7-44 (1) the board has served notice to the registered
7-45 nurse of the facts or conduct alleged to warrant the intended
7-46 action; and
7-47 (2) the registered nurse was given an opportunity to
7-48 show compliance with all requirements of law for the retention of
7-49 the license whether in writing or through informal meeting.
7-50 (b) If an informal meeting is held, any board member, staff
7-51 member, or representative of the board in attendance at the meeting
7-52 shall be considered to have participated in the hearing of the case
7-53 for the purposes of ex parte communications under Section 17 of
7-54 the Administrative Procedure and Texas Register Act (Article
7-55 6252-13a, Vernon's Texas Civil Statutes).
7-56 Art. 4525.5. INITIATION OF FORMAL CHARGES. (a) If the
7-57 board's initial investigation reveals probable cause that the
7-58 registered nurse committed an act or acts prohibited by Subsection
7-59 (b), Article 4525, Revised Statutes, or that violate a statute,
7-60 board rule, or board order, proceedings shall be initiated against
7-61 the registered nurse unless there is an agreed disposition of the
7-62 complaint under Article 4525.3, Revised Statutes. Proceedings
7-63 shall be initiated by the board or its duly authorized
7-64 representative by filing formal charges against the registered
7-65 nurse. A copy of the formal charges shall be served on the
7-66 registered nurse or the nurse's counsel of record.
7-67 (b) Formal charges shall be in writing and shall allege with
7-68 reasonable certainty the specific act or acts relied on by the
7-69 board to constitute a violation of a specific statute, board rule,
7-70 or board order. The formal charges shall be specific enough to
8-1 enable a person of common understanding to know what is meant by
8-2 the formal charges and shall contain a degree of certainty that
8-3 will give the person who is the subject of the formal charges
8-4 notice of the particular act or acts alleged to be a violation of a
8-5 specific statute, board rule, or board order.
8-6 (c) The board shall adopt reasonable rules to promote
8-7 discovery by all parties to contested cases.
8-8 Art. 4525.6. HEARINGS. (a) The board by rule shall adopt
8-9 procedures governing formal disposition of a contested case under
8-10 the Administrative Procedure and Texas Register Act (Article
8-11 6252-13a, Vernon's Texas Civil Statutes). A formal hearing shall
8-12 be conducted by the State Office of Administrative Hearings.
8-13 (b) Not later than the 30th day after receiving a written
8-14 request from a licensee who is the subject of formal charges filed
8-15 under Article 4525.5, Revised Statutes, or from the licensee's
8-16 counsel of record and subject to any other privileges or
8-17 restrictions set forth by rule, statute, or legal precedent, and
8-18 unless good cause is shown for delay, the board shall provide the
8-19 licensee with access to all known exculpatory information in its
8-20 possession and all information in its possession that the board
8-21 intends to offer into evidence in presenting its case in chief at
8-22 the contested hearing on the complaint. However, the board is not
8-23 required to provide board investigative reports or investigative
8-24 memoranda, the identity of nontestifying complainants,
8-25 attorney-client communications, attorney-work product, or other
8-26 materials covered by a privilege as recognized by the Texas Rules
8-27 of Civil Procedure or the Texas Rules of Civil Evidence. The
8-28 furnishing of information does not constitute a waiver of privilege
8-29 or confidentiality under this article, this chapter, or other
8-30 applicable law.
8-31 (c) In all hearings under this article, the registered nurse
8-32 shall have the right to appear either personally or by counsel or
8-33 both.
8-34 SECTION 10. Article 4526b, Revised Statutes, is amended to
8-35 read as follows:
8-36 Art. 4526b. INACTIVE STATUS LIST. Any nurse licensed under
8-37 the provisions of this law, not actively or actually engaged in the
8-38 practice of professional nursing, at the expiration of any such
8-39 license upon written request to the board in such form and manner
8-40 as the board shall determine may be placed on an inactive status
8-41 list which shall be maintained by the board. No professional nurse
8-42 on such inactive status list shall perform any professional nursing
8-43 services or work or violate any of the provisions of this law or
8-44 any rule or regulation of the board so long as on such inactive
8-45 status. At any time such person desires to reenter the active
8-46 practice of professional nursing or again begin performing or
8-47 offering to perform professional nursing services, such person
8-48 shall notify the board and upon payment of appropriate fees and
8-49 meeting requirements as determined by the board shall be removed
8-50 from the inactive status list. The board shall adopt rules
8-51 permitting a nurse on inactive status under this section who is 65
8-52 or older to use the title "Registered Nurse Retired" or "RN
8-53 Retired."
8-54 SECTION 11. Article 4527, Revised Statutes, is amended by
8-55 adding Section 3 to read as follows:
8-56 Sec. 3. The Board may charge a fee in the amount necessary
8-57 to produce and disseminate to its licensees the information
8-58 required under Section 16(a), Article 4525a, Revised Statutes.
8-59 Such fees shall be expended for a periodic newsletter. Any balance
8-60 remaining from this fee at the end of a fiscal year will be carried
8-61 forward for the purposes stated.
8-62 SECTION 12. Section 5, Article 4518, Revised Statutes, is
8-63 amended to read as follows:
8-64 Sec. 5. Insofar as any of the following acts require
8-65 substantial specialized judgment and skill and insofar as the
8-66 proper performance of any of the following acts is based upon
8-67 knowledge and application of the principles of biological,
8-68 physical, and social science as acquired by a completed course in
8-69 an approved school of professional nursing, "Professional Nursing"
8-70 shall be defined as the performance for compensation of any nursing
9-1 act (a) in the observation, assessment, intervention, evaluation,
9-2 rehabilitation, care and counsel and health teachings of persons
9-3 who are ill, injured or infirm or experiencing changes in normal
9-4 health processes; (b) in the maintenance of health or prevention of
9-5 illness; (c) in the administration of medications or treatments as
9-6 ordered by a licensed physician, including a podiatric physician
9-7 licensed by the Texas State Board of Podiatry Examiners, or
9-8 dentist; (d) in the supervision or teaching of nursing; (e) in the
9-9 administration, supervision, and evaluation of nursing practices,
9-10 policies, and procedures; or (f) in the requesting, receiving, and
9-11 signing for professional samples and distributing the samples to
9-12 patients at a site serving underserved populations, as provided by
9-13 Section 3.06(d)(5), Medical Practice Act (Article 4495b, Vernon's
9-14 Texas Civil Statutes), and rules implementing that section. The
9-15 foregoing shall not be deemed to include acts of medical diagnosis
9-16 or prescription of therapeutic or corrective measures. Nothing in
9-17 this section shall be construed as prohibiting a registered nurse
9-18 recognized by the board as having the specialized education and
9-19 training required under Section 7, Article 4514, Revised Statutes,
9-20 and functioning under adequate physician supervision from carrying
9-21 out prescription drug orders or treatments under physician's
9-22 orders, standing medical orders, standing delegation orders, or
9-23 other orders or protocols.
9-24 SECTION 13. This Act takes effect September 1, 1993.
9-25 SECTION 14. The importance of this legislation and the
9-26 crowded condition of the calendars in both houses create an
9-27 emergency and an imperative public necessity that the
9-28 constitutional rule requiring bills to be read on three several
9-29 days in each house be suspended, and this rule is hereby suspended.
9-30 * * * * *
9-31 Austin,
9-32 Texas
9-33 May 23, 1993
9-34 Hon. Bob Bullock
9-35 President of the Senate
9-36 Sir:
9-37 We, your Committee on Health and Human Services to which was
9-38 referred H.B. No. 756, have had the same under consideration, and I
9-39 am instructed to report it back to the Senate with the
9-40 recommendation that it do not pass, but that the Committee
9-41 Substitute adopted in lieu thereof do pass and be printed.
9-42 Zaffirini,
9-43 Chair
9-44 * * * * *
9-45 WITNESSES
9-46 FOR AGAINST ON
9-47 ___________________________________________________________________
9-48 Name: James Willman x
9-49 Representing: Tx Nurses Asso
9-50 City: Austin
9-51 -------------------------------------------------------------------
9-52 Name: Betty S. Kaggs x
9-53 Representing: Tx Nurses Asso
9-54 City: Austin
9-55 -------------------------------------------------------------------