1-1 By: McDonald, et al. (Senate Sponsor - Zaffirini) H.B. No. 883
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 16, 1995, read first time and referred to Committee on Health
1-4 and Human Services; May 19, 1995, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 8, Nays
1-6 0; May 19, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 883 By: Zaffirini
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of certain nursing practices.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 2(a), Article 4513, Revised Statutes, is
1-13 amended to read as follows:
1-14 (a) The members of the board shall hold office for staggered
1-15 terms of six years, with the terms of one practicing registered
1-16 nurse, one professional nurse engaged in nurse education, and one
1-17 public member expiring on January 31 of odd-numbered years. A
1-18 <The> professional nurse member <members> must be actually engaged
1-19 <employed> in the nursing profession for at least three of the five
1-20 years preceding the <before their> appointment.
1-21 SECTION 2. Section 3, Article 4518, Revised Statutes, is
1-22 amended to read as follows:
1-23 Sec. 3. Every applicant for registration as a registered
1-24 nurse shall present to the Board evidence of good professional
1-25 character, successful completion of an accredited program of
1-26 professional nursing education, and a sworn application and shall,
1-27 upon payment of required fees, be entitled to take the examination
1-28 prescribed by the Board. Upon passing the examination, the
1-29 applicant shall be entitled to receive from said Board a
1-30 certificate attested by the seal of said Board, entitling such
1-31 person to practice as a registered nurse in the State of Texas.
1-32 The Board shall determine the criteria, not to exceed the criteria
1-33 required by a majority of the states, that constitutes passing the
1-34 examination.
1-35 SECTION 3. Section 1, Article 4525b, Revised Statutes, is
1-36 amended to read as follows:
1-37 Sec. 1. DEFINITIONS. In this article:
1-38 (1) "Nursing <Professional nursing> peer review
1-39 committee" means a committee established under the authority of the
1-40 governing body of a national, state, or local <professional>
1-41 nursing association, a school of <professional> nursing, the
1-42 nursing staff of a hospital, health science center, nursing home,
1-43 home health agency, temporary nursing service, or other health-care
1-44 facility, or state agency or political subdivision for the purpose
1-45 of conducting peer review. A <professional> nursing peer review
1-46 committee includes the employees and agents of the committee,
1-47 including assistants, investigators, intervenors, attorneys, and
1-48 any other person or organization that is employed by or serves the
1-49 committee in any capacity.
1-50 (2) "Peer review" means the evaluation of
1-51 <professional> nursing services, the qualifications of
1-52 <professional> nurses, the quality of patient care rendered by
1-53 <professional> nurses, the merits of complaints concerning
1-54 <professional> nurses and <professional> nursing care, and
1-55 determinations or recommendations regarding complaints, including:
1-56 (A) the accuracy of nursing assessments and
1-57 observations;
1-58 (B) appropriateness and quality of the care
1-59 rendered by a <professional> nurse;
1-60 (C) reports made to a <professional> nursing
1-61 peer review committee concerning activities under the committee's
1-62 review authority;
1-63 (D) reports by a <professional> nursing peer
1-64 review committee to other committees or to the board as permitted
1-65 or required by law; and
1-66 (E) implementation of the duties of a
1-67 <professional> nursing peer review committee by its members,
1-68 agents, or employees.
2-1 (3) "Nurse" means a registered nurse or a licensed
2-2 vocational nurse.
2-3 (4) "Nursing" means professional nursing or vocational
2-4 nursing.
2-5 SECTION 4. Section 1A, Article 4525b, Revised Statutes, is
2-6 amended to read as follows:
2-7 Sec. 1A. MEMBERSHIP OF COMMITTEE; DUE PROCESS; REBUTTAL
2-8 STATEMENT. A <professional> nursing peer review committee that
2-9 conducts a review <must>:
2-10 (1) that only involves the practice of professional
2-11 nursing shall:
2-12 (A) have registered nurses as three-fourths of
2-13 its members; and
2-14 (B) <(2)> have only registered nurses as voting
2-15 members;
2-16 (2) that involves only the practice of vocational
2-17 nursing shall:
2-18 (A) have registered nurses and licensed
2-19 vocational nurses as three-fourths of its members;
2-20 (B) <(3)> to the extent feasible, include
2-21 licensed vocational nurses as members; and
2-22 (C) have only registered nurses and licensed
2-23 vocational nurses as voting members;
2-24 (3) that involves the practice of both professional
2-25 nursing and licensed vocational nursing shall:
2-26 (A) have registered nurses and licensed
2-27 vocational nurses as four-fifths of its members;
2-28 (B) have registered nurses as three-fifths of
2-29 its members;
2-30 (C) to the extent feasible, include licensed
2-31 vocational nurses as members;
2-32 (D) have only registered nurses and licensed
2-33 vocational nurses as voting members when a licensed vocational
2-34 nurse is being reviewed; and
2-35 (E) have only registered nurses as voting
2-36 members when a registered nurse is being reviewed;
2-37 (4) to the extent feasible, shall consist of at least
2-38 one <registered> nurse who has a working familiarity with the area
2-39 of nursing practice in which the nurse being reviewed practices;
2-40 (5) shall <(4)> afford the nurse being reviewed
2-41 minimum due process, including notice and opportunity for hearing;
2-42 and
2-43 (6) shall <(5)> afford the nurse the opportunity to
2-44 file a rebuttal statement as provided by Section 3(c) of this
2-45 article.
2-46 SECTION 5. Section 1B, Article 4525b, Revised Statutes, is
2-47 amended to read as follows:
2-48 Sec. 1B. EMPLOYMENT BY TWO ENTITIES; PEER REVIEW BY BOTH. A
2-49 <registered> nurse who, as a temporary agency nurse, faculty
2-50 member, or similar personnel, practices <professional> nursing for
2-51 a person, educational institution, or health-care facility, agency,
2-52 or entity other than the one that employs or directly compensates
2-53 the nurse shall be subject to peer review by both. For the
2-54 purposes of exchange of information, the peer review committee
2-55 reviewing the nurse's conduct is considered as established under
2-56 the authority of both. The two entities may contract with respect
2-57 to which entity will conduct peer review of the nurse.
2-58 SECTION 6. Section 2, Article 4525b, Revised Statutes, is
2-59 amended to read as follows:
2-60 Sec. 2. CONFIDENTIAL NATURE OF PROCEEDINGS. (a) Except as
2-61 otherwise provided by this article, all proceedings of a
2-62 <professional> nursing peer review committee are confidential and
2-63 all communications made to a <professional> nursing peer review
2-64 committee are privileged. A member, agent, or employee of a
2-65 <professional> nursing peer review committee or a participant in
2-66 any proceeding before the committee may not disclose or be required
2-67 to disclose a communication made to the committee or a record or
2-68 proceeding of the committee.
2-69 (b) A person who attends a proceeding of a <professional>
2-70 nursing peer review committee may not disclose or be required to
3-1 disclose any information acquired in connection with or in the
3-2 course of the proceeding or disclose any opinion, recommendation,
3-3 or evaluation of the committee or any member of the committee.
3-4 (c) The members of a <professional> nursing peer review
3-5 committee and the persons who provide information to the committee
3-6 may not be questioned about their testimony before the committee or
3-7 about opinions formed as a result of the committee proceedings.
3-8 (d) Except as otherwise permitted by this article, all
3-9 information made confidential by this section is not subject to
3-10 subpoena or discovery in any civil matter, is not admissible as
3-11 evidence in any judicial or administrative proceeding, and may not
3-12 be introduced into evidence in a <professional> nursing liability
3-13 suit arising out of the provision of or a failure to provide
3-14 <professional> nursing services.
3-15 SECTION 7. Sections 3(a)-(c), Article 4525b, Revised
3-16 Statutes, are amended to read as follows:
3-17 (a) A <professional> nursing peer review committee shall
3-18 disclose on request written or oral communications made to the
3-19 committee and the records and proceedings of the committee to:
3-20 (1) the state board of registration or licensure of
3-21 any state; or
3-22 (2) a law enforcement authority investigating a
3-23 criminal matter.
3-24 (b) A <professional> nursing peer review committee may
3-25 disclose written or oral communications made to the committee and
3-26 the records and proceedings of the committee to:
3-27 (1) the state board of registration or licensure of
3-28 any state;
3-29 (2) a law enforcement authority investigating a
3-30 criminal matter;
3-31 (3) the association, school, agency, facility, or
3-32 other organization under whose authority the committee is
3-33 established;
3-34 (4) another <professional> nursing peer review
3-35 committee;
3-36 (5) a peer assistance program approved by the board
3-37 under Chapter 467, Health and Safety Code;
3-38 (6) appropriate state or federal agencies or
3-39 accrediting organizations which accredit health-care facilities or
3-40 schools of nursing or which survey facilities for quality of care;
3-41 or
3-42 (7) persons engaged in bona fide research, if all
3-43 individual-identifying information is deleted.
3-44 (c) If a <professional> nursing peer review committee
3-45 discloses information under Subsection (a) of this section that
3-46 could result in the reprimand, suspension, termination, or other
3-47 disciplinary action of a <professional> nurse, or itself recommends
3-48 or takes such action, the committee shall provide the nurse with a
3-49 detailed summary of information disclosed or the basis of its
3-50 action or recommendation. The nurse shall be permitted an
3-51 opportunity to offer rebuttal information and to submit a rebuttal
3-52 statement of reasonable length. The rebuttal statement shall be
3-53 included with the information disclosed.
3-54 SECTION 8. Section 4(a), Article 4525b, Revised Statutes, is
3-55 amended to read as follows:
3-56 (a) A member of a <professional> nursing peer review
3-57 committee or a person participating in peer review under this
3-58 article who is named as a defendant in a civil action or subjected
3-59 to other retaliatory action as a consequence of the person's
3-60 participation in peer review may use information that is
3-61 confidential under this article in defense of the civil action or
3-62 in a civil action based on an allegation of retaliation for the
3-63 person's participation in peer review.
3-64 SECTION 9. Section 5, Article 4525b, Revised Statutes, is
3-65 amended to read as follows:
3-66 Sec. 5. CIVIL LIABILITY. A cause of action does not accrue
3-67 against the members, agents, or employees of a <professional>
3-68 nursing peer review committee or against a school of <professional>
3-69 nursing, hospital, nursing home, home health agency, health science
3-70 center, other health-care facility, the nursing staff of such a
4-1 facility, <professional> nursing association, or other organization
4-2 from any act, statement, determination or recommendation made, or
4-3 act reported, without malice, in the course of peer review as
4-4 defined in this article. A person who, without malice, furnishes
4-5 records, information, or assistance to a <professional> nursing
4-6 peer review committee is not liable in a civil action based on the
4-7 person's participation or assistance in peer review and may not be
4-8 subjected to retaliatory action as a result of such act.
4-9 SECTION 10. Section 6, Article 4525b, Revised Statutes, is
4-10 amended to read as follows:
4-11 Sec. 6. RETALIATORY ACTIONS; COUNTERCLAIMS. A <professional>
4-12 nursing peer review committee, a person participating in peer
4-13 review, or an organization, named as a defendant in any civil
4-14 action or subjected to other retaliatory action as a result of
4-15 participation in peer review, may file a counterclaim in any
4-16 pending action or may prove a cause of action in a subsequent suit
4-17 to recover any defense costs, including court costs, reasonable
4-18 attorney's fees, and actual and punitive damages if the suit or
4-19 retaliatory action is determined to be frivolous, unreasonable,
4-20 without foundation, or taken in bad faith.
4-21 SECTION 11. Section 7(a), Article 4525b, Revised Statutes,
4-22 is amended to read as follows:
4-23 (a) A court may not enjoin the activities of a
4-24 <professional> nursing peer review committee under this article.
4-25 SECTION 12. Article 4525b, Revised Statutes, is amended by
4-26 adding Section 8 to read as follows:
4-27 Sec. 8. CONSULTATION IN ADOPTION OF RULES. In adopting
4-28 rules under this article, the board shall consult with the Board of
4-29 Vocational Nurse Examiners.
4-30 SECTION 13. Chapter 7, Title 71, Revised Statutes, is
4-31 amended by adding Article 4525d to read as follows:
4-32 Art. 4525d. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
4-33 CONDUCT. (a) A person may not suspend, terminate, or otherwise
4-34 discipline or discriminate against a registered nurse who refuses
4-35 to engage in an act or omission relating to patient care that would
4-36 constitute grounds for reporting the nurse to the board under
4-37 Article 4525a, Revised Statutes, if the nurse notifies the person
4-38 at the time of the refusal that the reason for refusing is that the
4-39 act or omission constitutes grounds for reporting the nurse to the
4-40 board or is a violation of this chapter or a rule of the board.
4-41 (b) An act by a person under Subsection (a) does not
4-42 constitute a violation of this article if:
4-43 (1) a nursing peer review committee under Article
4-44 4525b, Revised Statutes, finds that the act or omission the nurse
4-45 refused to commit was not conduct that is reportable to the board
4-46 under Section 1A, Article 4525a, Revised Statutes; or
4-47 (2) a nursing peer review committee under Article
4-48 4525b, Revised Statutes, finds that the act or omission the nurse
4-49 refused to commit was conduct that is reportable to the board and
4-50 the person rescinds any disciplinary or discriminatory action taken
4-51 against the nurse, compensates the nurse for lost wages, and
4-52 restores to the nurse any lost benefits.
4-53 (c) An appropriate licensing agency may take action against
4-54 a person who violates this article.
4-55 (d) In this article, "person" includes an individual,
4-56 organization, agency, facility, or other entity.
4-57 SECTION 14. Subsection (a), Article 4527d, Revised Statutes,
4-58 is amended to read as follows:
4-59 (a) The board may impose an administrative penalty against a
4-60 person licensed or regulated under this chapter <article> who
4-61 violates this chapter <article> or a rule or order adopted under
4-62 this chapter <article>.
4-63 SECTION 15. Section 5, Chapter 118, Acts of the 52nd
4-64 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
4-65 Civil Statutes), is amended by amending Subsection (g) and adding
4-66 Subsection (u) to read as follows:
4-67 (g) The Board shall employ a full-time Director of
4-68 Education, who shall have had at least five (5) years experience in
4-69 teaching nursing in an accredited school of nursing or an approved
4-70 program in vocational nursing. The Board may select either a
5-1 Licensed Vocational Nurse or a Registered Nurse as the Director of
5-2 Education. The duties of the Director of Education shall be to
5-3 visit and inspect all schools of vocational nursing to determine
5-4 whether the Board's minimum requirements for vocational nursing
5-5 programs are being met. The Board, by rule, may establish a
5-6 separate fee for the survey of approved programs, which may be
5-7 allocated to cover the cost of implementing the survey. The Board
5-8 shall prescribe such methods and rules of visiting, and such
5-9 methods of reporting as may in its judgment be deemed proper.
5-10 (u) The Board shall disseminate, at least twice a year and
5-11 at other times as determined necessary by the Board, information
5-12 that is of significant interest to Licensed Vocational Nurses and
5-13 employers of Licensed Vocational Nurses in this state. The
5-14 information shall include summaries of final disciplinary action
5-15 taken against Licensed Vocational Nurses by the Board since its
5-16 last dissemination of information.
5-17 SECTION 16. Sections 6(a) and (d), Chapter 118, Acts of the
5-18 52nd Legislature, Regular Session, 1951 (Article 4528c, Vernon's
5-19 Texas Civil Statutes), are amended to read as follows:
5-20 (a) Except as provided in Section 7 of this Act, every
5-21 person desiring to be licensed as a Licensed Vocational Nurse or
5-22 use the abbreviation L.V.N. in the State of Texas, shall be
5-23 required to pass the examination approved by the Board of
5-24 Vocational Nurse Examiners. The applicant shall make application
5-25 by presenting to the Board, on forms furnished by the Board,
5-26 satisfactory sworn evidence that the applicant holds a high school
5-27 diploma issued by an accredited secondary <has had at least two (2)
5-28 years of high> school <education> or <its> equivalent educational
5-29 credentials and has completed an approved course in an approved
5-30 school for educating vocational nurses. An approved school as used
5-31 herein shall mean one approved by the Board or by another state.
5-32 <Application for examination by the Board or its delegate shall be
5-33 made at least thirty (30) days prior to the date set for the
5-34 examination.>
5-35 (d) If an applicant has graduated from an approved
5-36 educational program in vocational nursing in this state, another
5-37 state, or the District of Columbia, or successfully completed an
5-38 acceptable level of education in a professional nursing program in
5-39 this state, another state, or the District of Columbia, the Board
5-40 may issue to the applicant, pending the results of the licensing
5-41 examination, a temporary permit to practice vocational nursing
5-42 under the direct supervision of a licensed vocational nurse,
5-43 registered professional nurse, or licensed physician. A permit
5-44 issued to an applicant who fails the examination expires on the
5-45 date the examination result is reported to the Board <indicated on
5-46 the permit>. A permit issued to an applicant who passes the
5-47 examination expires on the applicant's receipt of a permanent
5-48 license from the Board. A permit may not be issued to an applicant
5-49 who has previously failed an examination administered by the Board
5-50 or by another state.
5-51 SECTION 17. Section 7, Chapter 118, Acts of the 52nd
5-52 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
5-53 Civil Statutes), is amended to read as follows:
5-54 Sec. 7. QUALIFICATION FOR LICENSING BY ENDORSEMENT. (a) To
5-55 qualify for a temporary license to practice as a licensed
5-56 vocational nurse by endorsement, an applicant for licensing must:
5-57 (1) submit to the Board an application fee as
5-58 determined by the Board and a completed application given under
5-59 oath, in the form prescribed by the Board;
5-60 (2) have possessed at the time of initial licensing as
5-61 a licensed vocational nurse the qualifications necessary to have
5-62 been eligible for licensing at that time in this state; and
5-63 (3) have presented to the Board proof of initial
5-64 licensing by examination and proof that the current active license
5-65 and other license or licenses granted to the applicant by any other
5-66 state have not been suspended, revoked, canceled, surrendered, or
5-67 otherwise restricted for any reason<; and>
5-68 <(4) submit to the Board a notice of sponsorship of
5-69 the applicant by the holder of a Texas health care professional
5-70 license under whom the applicant will practice>.
6-1 (b) A holder of a temporary license under this section shall
6-2 receive a permanent license if the applicant:
6-3 (1) has submitted official verification of the
6-4 academic and professional credentials of the applicant; and
6-5 (2) satisfies any other requirement set by statute.
6-6 (c) The Board shall either grant or deny an application for
6-7 a permanent license within 180 days after the date of the Board's
6-8 receipt of all required forms or information. The Board may extend
6-9 the 180-day deadline to allow for the receipt and tabulation of
6-10 pending examination results.
6-11 (d) <The Board shall adopt rules relating to the conditions
6-12 of sponsorship under Subsection (a)(4) of this section, including
6-13 waiver of the requirement in the event of a hardship.>
6-14 <(e)> The Board shall specify training, education, or
6-15 examination requirements that an applicant may complete in lieu of
6-16 the requirements of Subsection (a)(2) of this section.
6-17 (e) The Board shall adopt rules to address the practice of
6-18 vocational nursing by a vocational nurse who holds a license issued
6-19 by another state who is in this state on a nonroutine basis for a
6-20 period not to exceed five days or 120 hours to provide care to a
6-21 patient who is being transported into, out of, or through this
6-22 state.
6-23 SECTION 18. Section 10, Chapter 118, Acts of the 52nd
6-24 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
6-25 Civil Statutes), is amended by adding Subsection (h) to read as
6-26 follows:
6-27 (h) Article 6252-13c, Revised Statutes, applies to the
6-28 Board, and the Board is a licensing agency for purposes of that
6-29 article.
6-30 SECTION 19. Chapter 118, Acts of the 52nd Legislature,
6-31 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
6-32 Statutes), is amended by adding Section 10G to read as follows:
6-33 Sec. 10G. TEMPORARY SUSPENSION OF LICENSE. (a) If the
6-34 majority of the Board or a three-member committee of Board members
6-35 designated by the Board determines from the evidence or information
6-36 presented to it that a licensed vocational nurse, by continuation
6-37 in the practice of vocational nursing, would constitute a
6-38 continuing and imminent threat to the public welfare, the Board or
6-39 the three-member committee shall temporarily suspend the license of
6-40 the licensed vocational nurse.
6-41 (b) A license may be suspended under this section without
6-42 notice or hearing on the complaint if:
6-43 (1) proceedings for a hearing before the State Office
6-44 of Administrative Hearings are initiated simultaneously with the
6-45 temporary suspension; and
6-46 (2) a hearing is held as soon as practicable under
6-47 this Act and Chapter 2001, Government Code (Administrative
6-48 Procedure Act).
6-49 (c) The State Office of Administrative Hearings shall
6-50 conduct a preliminary hearing not later than the 21st day after the
6-51 date of the temporary suspension order to determine if probable
6-52 cause exists that a continuing and imminent threat to the public
6-53 welfare is still occurring. That office shall conduct a final
6-54 hearing on the matter not later than the 91st day after the date of
6-55 the temporary suspension order.
6-56 SECTION 20. Chapter 118, Acts of the 52nd Legislature,
6-57 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
6-58 Statutes), is amended by adding Section 10H to read as follows:
6-59 Sec. 10H. INFORMATION; SUBPOENAS. (a) Each person shall
6-60 respond promptly and fully to any request for information from the
6-61 Board and to any subpoena issued by the Board and may not refuse,
6-62 deny, or resist the request or subpoena unless the request or
6-63 subpoena requests information subject to the attorney-client
6-64 privilege of confidentiality. No other privilege applies to a
6-65 proceeding of the Board.
6-66 (b) Each subpoena issued by the Board may be served
6-67 personally by a Board investigator, by certified mail, or by any
6-68 other manner authorized by law.
6-69 (c) The Board may pay a reasonable fee for photocopies
6-70 subpoenaed at the request of the Board in an amount not to exceed
7-1 the amount that the Board charges for a copy of a Board record.
7-2 (d) To the extent possible, the Board shall protect the
7-3 identity of patients named in information received by the Board.
7-4 SECTION 21. Chapter 118, Acts of the 52nd Legislature,
7-5 Regular Session, 1951 (Article 4528c, Vernon's Texas Civil
7-6 Statutes), is amended by adding Section 10I to read as follows:
7-7 Sec. 10I. PEER REVIEW. A vocational nurse licensed under
7-8 this Act is subject to peer review under Article 4525b, Revised
7-9 Statutes.
7-10 SECTION 22. (a) Section 6, Chapter 118, Acts of the 52nd
7-11 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
7-12 Civil Statutes), as amended by this Act, applies only to an
7-13 application for a license as a licensed vocational nurse that is
7-14 filed with the Board of Vocational Nurse Examiners on or after
7-15 September 1, 1995. An application filed before that date is
7-16 governed by the law in effect on the date the application was
7-17 filed, and the former law is continued in effect for that purpose.
7-18 (b) Sections 10G and 10H, Chapter 118, Acts of the 52nd
7-19 Legislature, Regular Session, 1951 (Article 4528c, Vernon's Texas
7-20 Civil Statutes), as added by this Act, take effect January 1, 1996.
7-21 Not later than December 31, 1995, the Board of Vocational Nurse
7-22 Examiners shall adopt rules as necessary to implement those
7-23 sections.
7-24 SECTION 23. The importance of this legislation and the
7-25 crowded condition of the calendars in both houses create an
7-26 emergency and an imperative public necessity that the
7-27 constitutional rule requiring bills to be read on three several
7-28 days in each house be suspended, and this rule is hereby suspended,
7-29 and that this Act take effect and be in force from and after its
7-30 passage, and it is so enacted.
7-31 * * * * *