H.B. No. 883
1-1 AN ACT
1-2 relating to the regulation of certain nursing practices.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2(a), Article 4513, Revised Statutes, is
1-5 amended to read as follows:
1-6 (a) The members of the board shall hold office for staggered
1-7 terms of six years, with the terms of one practicing registered
1-8 nurse, one professional nurse engaged in nurse education, and one
1-9 public member expiring on January 31 of odd-numbered years. A
1-10 <The> professional nurse member <members> must be actually engaged
1-11 <employed> in the nursing profession for at least three of the five
1-12 years preceding the <before their> appointment.
1-13 SECTION 2. Section 3, Article 4518, Revised Statutes, is
1-14 amended to read as follows:
1-15 Sec. 3. Every applicant for registration as a registered
1-16 nurse shall present to the Board evidence of good professional
1-17 character, successful completion of an accredited program of
1-18 professional nursing education, and a sworn application and shall,
1-19 upon payment of required fees, be entitled to take the examination
1-20 prescribed by the Board. Upon passing the examination, the
1-21 applicant shall be entitled to receive from said Board a
1-22 certificate attested by the seal of said Board, entitling such
1-23 person to practice as a registered nurse in the State of Texas.
1-24 The Board shall determine the criteria, not to exceed the criteria
2-1 required by a majority of the states, that constitutes passing the
2-2 examination.
2-3 SECTION 3. Section 1, Article 4525b, Revised Statutes, is
2-4 amended to read as follows:
2-5 Sec. 1. DEFINITIONS. In this article:
2-6 (1) "Nursing <Professional nursing> peer review
2-7 committee" means a committee established under the authority of the
2-8 governing body of a national, state, or local <professional>
2-9 nursing association, a school of <professional> nursing, the
2-10 nursing staff of a hospital, health science center, nursing home,
2-11 home health agency, temporary nursing service, or other health-care
2-12 facility, or state agency or political subdivision for the purpose
2-13 of conducting peer review. A <professional> nursing peer review
2-14 committee includes the employees and agents of the committee,
2-15 including assistants, investigators, intervenors, attorneys, and
2-16 any other person or organization that is employed by or serves the
2-17 committee in any capacity.
2-18 (2) "Peer review" means the evaluation of
2-19 <professional> nursing services, the qualifications of
2-20 <professional> nurses, the quality of patient care rendered by
2-21 <professional> nurses, the merits of complaints concerning
2-22 <professional> nurses and <professional> nursing care, and
2-23 determinations or recommendations regarding complaints, including:
2-24 (A) the accuracy of nursing assessments and
2-25 observations;
2-26 (B) appropriateness and quality of the care
2-27 rendered by a <professional> nurse;
3-1 (C) reports made to a <professional> nursing
3-2 peer review committee concerning activities under the committee's
3-3 review authority;
3-4 (D) reports by a <professional> nursing peer
3-5 review committee to other committees or to the board as permitted
3-6 or required by law; and
3-7 (E) implementation of the duties of a
3-8 <professional> nursing peer review committee by its members,
3-9 agents, or employees.
3-10 (3) "Nurse" means a registered nurse or a licensed
3-11 vocational nurse.
3-12 (4) "Nursing" means professional nursing or vocational
3-13 nursing.
3-14 SECTION 4. Section 1A, Article 4525b, Revised Statutes, is
3-15 amended to read as follows:
3-16 Sec. 1A. MEMBERSHIP OF COMMITTEE; DUE PROCESS; REBUTTAL
3-17 STATEMENT. A <professional> nursing peer review committee that
3-18 conducts a review <must>:
3-19 (1) that only involves the practice of professional
3-20 nursing shall:
3-21 (A) have registered nurses as three-fourths of
3-22 its members; and
3-23 (B) <(2)> have only registered nurses as voting
3-24 members;
3-25 (2) that involves only the practice of vocational
3-26 nursing shall:
3-27 (A) have registered nurses and licensed
4-1 vocational nurses as three-fourths of its members;
4-2 (B) <(3)> to the extent feasible, include
4-3 licensed vocational nurses as members; and
4-4 (C) have only registered nurses and licensed
4-5 vocational nurses as voting members;
4-6 (3) that involves the practice of both professional
4-7 nursing and licensed vocational nursing shall:
4-8 (A) have registered nurses and licensed
4-9 vocational nurses as four-fifths of its members;
4-10 (B) have registered nurses as three-fifths of
4-11 its members;
4-12 (C) to the extent feasible, include licensed
4-13 vocational nurses as members;
4-14 (D) have only registered nurses and licensed
4-15 vocational nurses as voting members when a licensed vocational
4-16 nurse is being reviewed; and
4-17 (E) have only registered nurses as voting
4-18 members when a registered nurse is being reviewed;
4-19 (4) to the extent feasible, shall consist of at least
4-20 one <registered> nurse who has a working familiarity with the area
4-21 of nursing practice in which the nurse being reviewed practices;
4-22 (5) shall <(4)> afford the nurse being reviewed
4-23 minimum due process, including notice and opportunity for hearing;
4-24 and
4-25 (6) shall <(5)> afford the nurse the opportunity to
4-26 file a rebuttal statement as provided by Section 3(c) of this
4-27 article.
5-1 SECTION 5. Section 1B, Article 4525b, Revised Statutes, is
5-2 amended to read as follows:
5-3 Sec. 1B. EMPLOYMENT BY TWO ENTITIES; PEER REVIEW BY BOTH. A
5-4 <registered> nurse who, as a temporary agency nurse, faculty
5-5 member, or similar personnel, practices <professional> nursing for
5-6 a person, educational institution, or health-care facility, agency,
5-7 or entity other than the one that employs or directly compensates
5-8 the nurse shall be subject to peer review by both. For the
5-9 purposes of exchange of information, the peer review committee
5-10 reviewing the nurse's conduct is considered as established under
5-11 the authority of both. The two entities may contract with respect
5-12 to which entity will conduct peer review of the nurse.
5-13 SECTION 6. Section 2, Article 4525b, Revised Statutes, is
5-14 amended to read as follows:
5-15 Sec. 2. CONFIDENTIAL NATURE OF PROCEEDINGS. (a) Except as
5-16 otherwise provided by this article, all proceedings of a
5-17 <professional> nursing peer review committee are confidential and
5-18 all communications made to a <professional> nursing peer review
5-19 committee are privileged. A member, agent, or employee of a
5-20 <professional> nursing peer review committee or a participant in
5-21 any proceeding before the committee may not disclose or be required
5-22 to disclose a communication made to the committee or a record or
5-23 proceeding of the committee.
5-24 (b) A person who attends a proceeding of a <professional>
5-25 nursing peer review committee may not disclose or be required to
5-26 disclose any information acquired in connection with or in the
5-27 course of the proceeding or disclose any opinion, recommendation,
6-1 or evaluation of the committee or any member of the committee.
6-2 (c) The members of a <professional> nursing peer review
6-3 committee and the persons who provide information to the committee
6-4 may not be questioned about their testimony before the committee or
6-5 about opinions formed as a result of the committee proceedings.
6-6 (d) Except as otherwise permitted by this article, all
6-7 information made confidential by this section is not subject to
6-8 subpoena or discovery in any civil matter, is not admissible as
6-9 evidence in any judicial or administrative proceeding, and may not
6-10 be introduced into evidence in a <professional> nursing liability
6-11 suit arising out of the provision of or a failure to provide
6-12 <professional> nursing services.
6-13 SECTION 7. Sections 3(a)-(c), Article 4525b, Revised
6-14 Statutes, are amended to read as follows:
6-15 (a) A <professional> nursing peer review committee shall
6-16 disclose on request written or oral communications made to the
6-17 committee and the records and proceedings of the committee to:
6-18 (1) the state board of registration or licensure of
6-19 any state; or
6-20 (2) a law enforcement authority investigating a
6-21 criminal matter.
6-22 (b) A <professional> nursing peer review committee may
6-23 disclose written or oral communications made to the committee and
6-24 the records and proceedings of the committee to:
6-25 (1) the state board of registration or licensure of
6-26 any state;
6-27 (2) a law enforcement authority investigating a
7-1 criminal matter;
7-2 (3) the association, school, agency, facility, or
7-3 other organization under whose authority the committee is
7-4 established;
7-5 (4) another <professional> nursing peer review
7-6 committee;
7-7 (5) a peer assistance program approved by the board
7-8 under Chapter 467, Health and Safety Code;
7-9 (6) appropriate state or federal agencies or
7-10 accrediting organizations which accredit health-care facilities or
7-11 schools of nursing or which survey facilities for quality of care;
7-12 or
7-13 (7) persons engaged in bona fide research, if all
7-14 individual-identifying information is deleted.
7-15 (c) If a <professional> nursing peer review committee
7-16 discloses information under Subsection (a) of this section that
7-17 could result in the reprimand, suspension, termination, or other
7-18 disciplinary action of a <professional> nurse, or itself recommends
7-19 or takes such action, the committee shall provide the nurse with a
7-20 detailed summary of information disclosed or the basis of its
7-21 action or recommendation. The nurse shall be permitted an
7-22 opportunity to offer rebuttal information and to submit a rebuttal
7-23 statement of reasonable length. The rebuttal statement shall be
7-24 included with the information disclosed.
7-25 SECTION 8. Section 4(a), Article 4525b, Revised Statutes, is
7-26 amended to read as follows:
7-27 (a) A member of a <professional> nursing peer review
8-1 committee or a person participating in peer review under this
8-2 article who is named as a defendant in a civil action or subjected
8-3 to other retaliatory action as a consequence of the person's
8-4 participation in peer review may use information that is
8-5 confidential under this article in defense of the civil action or
8-6 in a civil action based on an allegation of retaliation for the
8-7 person's participation in peer review.
8-8 SECTION 9. Section 5, Article 4525b, Revised Statutes, is
8-9 amended to read as follows:
8-10 Sec. 5. CIVIL LIABILITY. A cause of action does not accrue
8-11 against the members, agents, or employees of a <professional>
8-12 nursing peer review committee or against a school of <professional>
8-13 nursing, hospital, nursing home, home health agency, health science
8-14 center, other health-care facility, the nursing staff of such a
8-15 facility, <professional> nursing association, or other organization
8-16 from any act, statement, determination or recommendation made, or
8-17 act reported, without malice, in the course of peer review as
8-18 defined in this article. A person who, without malice, furnishes
8-19 records, information, or assistance to a <professional> nursing
8-20 peer review committee is not liable in a civil action based on the
8-21 person's participation or assistance in peer review and may not be
8-22 subjected to retaliatory action as a result of such act.
8-23 SECTION 10. Section 6, Article 4525b, Revised Statutes, is
8-24 amended to read as follows:
8-25 Sec. 6. RETALIATORY ACTIONS; COUNTERCLAIMS. A <professional>
8-26 nursing peer review committee, a person participating in peer
8-27 review, or an organization, named as a defendant in any civil
9-1 action or subjected to other retaliatory action as a result of
9-2 participation in peer review, may file a counterclaim in any
9-3 pending action or may prove a cause of action in a subsequent suit
9-4 to recover any defense costs, including court costs, reasonable
9-5 attorney's fees, and actual and punitive damages if the suit or
9-6 retaliatory action is determined to be frivolous, unreasonable,
9-7 without foundation, or taken in bad faith.
9-8 SECTION 11. Section 7(a), Article 4525b, Revised Statutes,
9-9 is amended to read as follows:
9-10 (a) A court may not enjoin the activities of a
9-11 <professional> nursing peer review committee under this article.
9-12 SECTION 12. Article 4525b, Revised Statutes, is amended by
9-13 adding Section 8 to read as follows:
9-14 Sec. 8. CONSULTATION IN ADOPTION OF RULES. In adopting
9-15 rules under this article, the board shall consult with the Board of
9-16 Vocational Nurse Examiners.
9-17 SECTION 13. Chapter 7, Title 71, Revised Statutes, is
9-18 amended by adding Article 4525d to read as follows:
9-19 Art. 4525d. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
9-20 CONDUCT. (a) A person may not suspend, terminate, or otherwise
9-21 discipline or discriminate against a registered nurse who refuses
9-22 to engage in an act or omission relating to patient care that would
9-23 constitute grounds for reporting the nurse to the board under
9-24 Article 4525a, Revised Statutes, if the nurse notifies the person
9-25 at the time of the refusal that the reason for refusing is that the
9-26 act or omission constitutes grounds for reporting the nurse to the
9-27 board or is a violation of this chapter or a rule of the board.
10-1 (b) An act by a person under Subsection (a) does not
10-2 constitute a violation of this article if:
10-3 (1) a nursing peer review committee under Article
10-4 4525b, Revised Statutes, finds that the act or omission the nurse
10-5 refused to commit was not conduct that is reportable to the board
10-6 under Section 1A, Article 4525a, Revised Statutes; or
10-7 (2) a nursing peer review committee under Article
10-8 4525b, Revised Statutes, finds that the act or omission the nurse
10-9 refused to commit was conduct that is reportable to the board and
10-10 the person rescinds any disciplinary or discriminatory action taken
10-11 against the nurse, compensates the nurse for lost wages, and
10-12 restores to the nurse any lost benefits.
10-13 (c) An appropriate licensing agency may take action against
10-14 a person who violates this article.
10-15 (d) In this article, "person" includes an individual,
10-16 organization, agency, facility, or other entity.
10-17 SECTION 14. Subsection (a), Article 4527d, Revised Statutes,
10-18 is amended to read as follows:
10-19 (a) The board may impose an administrative penalty against a
10-20 person licensed or regulated under this chapter <article> who
10-21 violates this chapter <article> or a rule or order adopted under
10-22 this chapter <article>.
10-23 SECTION 15. Section 5, Chapter 118, Acts of the 52nd
10-24 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
10-25 Civil Statutes), is amended by amending Subsection (g) and adding
10-26 Subsection (u) to read as follows:
10-27 (g) The Board shall employ a full-time Director of
11-1 Education, who shall have had at least five (5) years experience in
11-2 teaching nursing in an accredited school of nursing or an approved
11-3 program in vocational nursing. The Board may select either a
11-4 Licensed Vocational Nurse or a Registered Nurse as the Director of
11-5 Education. The duties of the Director of Education shall be to
11-6 visit and inspect all schools of vocational nursing to determine
11-7 whether the Board's minimum requirements for vocational nursing
11-8 programs are being met. The Board, by rule, may establish a
11-9 separate fee for the survey of approved programs, which may be
11-10 allocated to cover the cost of implementing the survey. The Board
11-11 shall prescribe such methods and rules of visiting, and such
11-12 methods of reporting as may in its judgment be deemed proper.
11-13 (u) The Board shall disseminate, at least twice a year and
11-14 at other times as determined necessary by the Board, information
11-15 that is of significant interest to Licensed Vocational Nurses and
11-16 employers of Licensed Vocational Nurses in this state. The
11-17 information shall include summaries of final disciplinary action
11-18 taken against Licensed Vocational Nurses by the Board since its
11-19 last dissemination of information.
11-20 SECTION 16. Sections 6(a) and (d), Chapter 118, Acts of the
11-21 52nd Legislature, Regular Session, 1951 (Article 4528c, Vernon's
11-22 Texas Civil Statutes), are amended to read as follows:
11-23 (a) Except as provided in Section 7 of this Act, every
11-24 person desiring to be licensed as a Licensed Vocational Nurse or
11-25 use the abbreviation L.V.N. in the State of Texas, shall be
11-26 required to pass the examination approved by the Board of
11-27 Vocational Nurse Examiners. The applicant shall make application
12-1 by presenting to the Board, on forms furnished by the Board,
12-2 satisfactory sworn evidence that the applicant holds a high school
12-3 diploma issued by an accredited secondary <has had at least two (2)
12-4 years of high> school <education> or <its> equivalent educational
12-5 credentials and has completed an approved course in an approved
12-6 school for educating vocational nurses. An approved school as used
12-7 herein shall mean one approved by the Board or by another state.
12-8 <Application for examination by the Board or its delegate shall be
12-9 made at least thirty (30) days prior to the date set for the
12-10 examination.>
12-11 (d) If an applicant has graduated from an approved
12-12 educational program in vocational nursing in this state, another
12-13 state, or the District of Columbia, or successfully completed an
12-14 acceptable level of education in a professional nursing program in
12-15 this state, another state, or the District of Columbia, the Board
12-16 may issue to the applicant, pending the results of the licensing
12-17 examination, a temporary permit to practice vocational nursing
12-18 under the direct supervision of a licensed vocational nurse,
12-19 registered professional nurse, or licensed physician. A permit
12-20 issued to an applicant who fails the examination expires on the
12-21 date the examination result is reported to the Board <indicated on
12-22 the permit>. A permit issued to an applicant who passes the
12-23 examination expires on the applicant's receipt of a permanent
12-24 license from the Board. A permit may not be issued to an applicant
12-25 who has previously failed an examination administered by the Board
12-26 or by another state.
12-27 SECTION 17. Section 7, Chapter 118, Acts of the 52nd
13-1 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
13-2 Civil Statutes), is amended to read as follows:
13-3 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
13-4 qualify for a temporary license to practice as a licensed
13-5 vocational nurse by endorsement, an applicant for licensing must:
13-6 (1) submit to the Board an application fee as
13-7 determined by the Board and a completed application given under
13-8 oath, in the form prescribed by the Board;
13-9 (2) have possessed at the time of initial licensing as
13-10 a licensed vocational nurse the qualifications necessary to have
13-11 been eligible for licensing at that time in this state; and
13-12 (3) have presented to the Board proof of initial
13-13 licensing by examination and proof that the current active license
13-14 and other license or licenses granted to the applicant by any other
13-15 state have not been suspended, revoked, canceled, surrendered, or
13-16 otherwise restricted for any reason<; and>
13-17 <(4) submit to the Board a notice of sponsorship of
13-18 the applicant by the holder of a Texas health care professional
13-19 license under whom the applicant will practice>.
13-20 (b) A holder of a temporary license under this section shall
13-21 receive a permanent license if the applicant:
13-22 (1) has submitted official verification of the
13-23 academic and professional credentials of the applicant; and
13-24 (2) satisfies any other requirement set by statute.
13-25 (c) The Board shall either grant or deny an application for
13-26 a permanent license within 180 days after the date of the Board's
13-27 receipt of all required forms or information. The Board may extend
14-1 the 180-day deadline to allow for the receipt and tabulation of
14-2 pending examination results.
14-3 (d) <The Board shall adopt rules relating to the conditions
14-4 of sponsorship under Subsection (a)(4) of this section, including
14-5 waiver of the requirement in the event of a hardship.>
14-6 <(e)> The Board shall specify training, education, or
14-7 examination requirements that an applicant may complete in lieu of
14-8 the requirements of Subsection (a)(2) of this section.
14-9 (e) The Board shall adopt rules to address the practice of
14-10 vocational nursing by a vocational nurse who holds a license issued
14-11 by another state who is in this state on a nonroutine basis for a
14-12 period not to exceed five days or 120 hours to provide care to a
14-13 patient who is being transported into, out of, or through this
14-14 state.
14-15 SECTION 18. Section 10, Chapter 118, Acts of the 52nd
14-16 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
14-17 Civil Statutes), is amended by adding Subsection (h) to read as
14-18 follows:
14-19 (h) Article 6252-13c, Revised Statutes, applies to the
14-20 Board, and the Board is a licensing agency for purposes of that
14-21 article.
14-22 SECTION 19. Chapter 118, Acts of the 52nd Legislature,
14-23 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
14-24 Statutes), is amended by adding Section 10G to read as follows:
14-25 Sec. 10G. TEMPORARY SUSPENSION OF LICENSE. (a) If the
14-26 majority of the Board or a three-member committee of Board members
14-27 designated by the Board determines from the evidence or information
15-1 presented to it that a licensed vocational nurse, by continuation
15-2 in the practice of vocational nursing, would constitute a
15-3 continuing and imminent threat to the public welfare, the Board or
15-4 the three-member committee shall temporarily suspend the license of
15-5 the licensed vocational nurse.
15-6 (b) A license may be suspended under this section without
15-7 notice or hearing on the complaint if:
15-8 (1) proceedings for a hearing before the State Office
15-9 of Administrative Hearings are initiated simultaneously with the
15-10 temporary suspension; and
15-11 (2) a hearing is held as soon as practicable under
15-12 this Act and Chapter 2001, Government Code (Administrative
15-13 Procedure Act).
15-14 (c) The State Office of Administrative Hearings shall
15-15 conduct a preliminary hearing not later than the 21st day after the
15-16 date of the temporary suspension order to determine if probable
15-17 cause exists that a continuing and imminent threat to the public
15-18 welfare is still occurring. That office shall conduct a final
15-19 hearing on the matter not later than the 91st day after the date of
15-20 the temporary suspension order.
15-21 SECTION 20. Chapter 118, Acts of the 52nd Legislature,
15-22 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
15-23 Statutes), is amended by adding Section 10H to read as follows:
15-24 Sec. 10H. INFORMATION; SUBPOENAS. (a) Each person shall
15-25 respond promptly and fully to any request for information from the
15-26 Board and to any subpoena issued by the Board and may not refuse,
15-27 deny, or resist the request or subpoena unless the request or
16-1 subpoena requests information subject to the attorney-client
16-2 privilege of confidentiality. No other privilege applies to a
16-3 proceeding of the Board.
16-4 (b) Each subpoena issued by the Board may be served
16-5 personally by a Board investigator, by certified mail, or by any
16-6 other manner authorized by law.
16-7 (c) The Board may pay a reasonable fee for photocopies
16-8 subpoenaed at the request of the Board in an amount not to exceed
16-9 the amount that the Board charges for a copy of a Board record.
16-10 (d) To the extent possible, the Board shall protect the
16-11 identity of patients named in information received by the Board.
16-12 SECTION 21. Chapter 118, Acts of the 52nd Legislature,
16-13 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
16-14 Statutes), is amended by adding Section 10I to read as follows:
16-15 Sec. 10I. PEER REVIEW. A vocational nurse licensed under
16-16 this Act is subject to peer review under Article 4525b, Revised
16-17 Statutes.
16-18 SECTION 22. (a) Section 6, Chapter 118, Acts of the 52nd
16-19 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
16-20 Civil Statutes), as amended by this Act, applies only to an
16-21 application for a license as a licensed vocational nurse that is
16-22 filed with the Board of Vocational Nurse Examiners on or after
16-23 September 1, 1995. An application filed before that date is
16-24 governed by the law in effect on the date the application was
16-25 filed, and the former law is continued in effect for that purpose.
16-26 (b) Sections 10G and 10H, Chapter 118, Acts of the 52nd
16-27 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
17-1 Civil Statutes), as added by this Act, take effect January 1, 1996.
17-2 Not later than December 31, 1995, the Board of Vocational Nurse
17-3 Examiners shall adopt rules as necessary to implement those
17-4 sections.
17-5 SECTION 23. The importance of this legislation and the
17-6 crowded condition of the calendars in both houses create an
17-7 emergency and an imperative public necessity that the
17-8 constitutional rule requiring bills to be read on three several
17-9 days in each house be suspended, and this rule is hereby suspended,
17-10 and that this Act take effect and be in force from and after its
17-11 passage, and it is so enacted.