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.  



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