BG C.S.H.B. 1433 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 1433 By: Maxey 4-17-97 Committee Report (Substituted) BACKGROUND With the current cost-cutting emphasis in the health care delivery system, registered nurses can find themselves being requested to engage in conduct they believe is unsafe and in violation of a RN's duty to a patient. Article 4525d was added to the Nursing Practice Act in 1995 to provide protection to RNs who find themselves in such situations by prohibiting employers from terminating or disciplining a RN who refuses to engage in conduct that violates the Nursing Practice Act. However, Article 4525d provides no option to RNs who believe they are being asked to engage in conduct that violates their duty to the patient except to refuse to engage in the conduct and to seek redress if they are terminated or otherwise disciplined for their actions. Consequently, RNs still find themselves faced with the choice of whether to engage in the conduct and risk action against their license by the Board of Nurse Examiners or refuse to engage in the conduct and risk disciplinary action by their employer. The RN's dilemma is exacerbated by the fact that the question of what is a RN's duty to a patient in a particular situation can be a difficult question to answer and one on which reasonable nurses can genuinely disagree. PURPOSE CSHB 1433 promotes patient safety and improves the practice environment for RNs who may be requested to engage in conduct that they, in good faith, believe violates a RN's duty to a patient by providing the right to request a nursing peer review finding and permitting the conduct pending the peer review's finding without fear of action against their nursing license. The bill further protects RNs by requiring that a finding of inappropriate conduct relating to patient care be reportable to the Board of Nurse Examiners before it can be considered as the basis for termination or other disciplinary action. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the Board of Health in SECTION 2 (Section 241.026(a)(6), Health and Safety Code). SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 4525d, Revised Statutes, entitled "Protection for Refusal to Engage in Certain Conduct", as follows: Subsection (c) adds language to allow a nurse to request a finding by a nursing peer review committee of whether conduct violates duty to a patient as specified. Allows a nurse who in good faith requests a peer review determination as specified to engage in the conduct as specified pending the review and is not subject to reporting requirements as specified and may not be disciplined as specified. Requires the findings of the peer review committee to be considered in a disciplinary decision, but specifies that those findings are not binding as specified. Prohibits disciplining or discriminating against a nurse for making a peer review request as specified. Requires the medical staff or medical director to be requested to make a determination as to the medical reasonableness of a physician's order if the conduct for which the peer review is requested involves the medical reasonableness of an order. Establishes that a registered nurse's rights under this article may not be nullified by contract. Subsection (d) makes a conforming change. Subsection (e) adds the definition for "duty to a patient" as used in this article. Makes conforming changes. SECTION 2. Amends Section 241.026(a), Health and Safety Code by adding a new Subsection (6) to include compliance with nursing peer review under the law, as specified, and the rules of the Board of Nurse Examiners relating to peer review as an issue that must be addressed in Board of Health rules governing hospitals. SECTION 3. Effective date is September 1, 1997 SECTION 4. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE CSHB 1433 substantially revises the original bill by deleting a number of provisions and replacing them with new provisions to accomplish the bill's purpose in a different way. The listing of specific types of conduct for which a registered nurse may not be terminated or disciplined was deleted because of concerns of vagueness and ambiguity. The provision which prohibited employers from informing other employers that a registered nurse was terminated or disciplined because of inappropriate patient care unless a nursing peer review committee had found the care to be inappropriate was deleted because of concerns that it would be unworkable for small employers who did not have peer review. Also the section providing a private cause of action for the RN was deleted because of concerns expressed by employers. Because of concerns expressed about uncertainty as to the conduct covered by HB 1433 and about its application to employers not required by existing law to have nursing peer review in place, the substitute bill limits the scope of the legislation to persons who employ or utilize 10 or more RNs and to conduct required by "a RN's duty to a patient" to standards of practice and professional conduct as defined the Board of Nurse Examiners. To provide protections to RNs who find themselves being requested to engage in conduct they believe violates a RN's duty to a patient, the committee substitute adds new provisions which require persons who regularly employ or utilize 10 or more RNs to give a RN a right to request peer review if the RN believes she/he is being requested to engage in conduct that would violate a RN's duty to a patient a right; provide a safe harbor for a RN making the request for peer review in good faith by permitting the RN to engage in conduct pending the peer review's finding without being subject to having disciplinary action taken against her license for engaging in that conduct; and prohibit the RN from being disciplined for requesting peer review. The substitute bill also specifies the requirement that nursing administration consider, but not be bound by, the peer review's in any personnel decision to discipline the RN and provides for issues relating to medical reasonableness. CSHB 1433 also establishes that rights provided a RN not be nullified by contract. Because of concerns that some facilities may not be complying with existing laws governing nursing peer review, In SECTION 2, CSHB 1433 amends the Hospital Licensing Law to include compliance with laws and regulations governing nursing peer review in the areas the Board of Health must address in its rules governing hospitals. .