SRC-TJG, MLC S.B. 241 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 241
78R1911 SMH-FBy: Shapleigh
Health and Human Services
2/17/2003
As Filed


DIGEST AND PURPOSE 

Currently, the Board of Vocational Nurse Examiners (BVNE) may only state
what it believes is appropriate regarding whether a licensed vocational
nurses (LVN) may perform certain tasks under specific settings because
LVNs are licensed under a "title-control" act.  As proposed, S.B. 241
would convert the Vocational Nurse Act (Chapter 302, Occupations Code)
from a  "title-control" act to a "practice-control" act, thereby allowing
BVNE to define what type of direct patient care may be performed by an LVN
and in which settings.  Also, a practice-control act conveys the legal
protection of "safe harbor," a right provided to registered nurses,
medical doctors, and other licensed healthcare professionals, which allows
the professional to refuse to perform a task that he or she has not been
trained to perform. 

RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Board of Vocational Nurse
Examiners is modified in SECTION 4 (Section 302.151, Occupations Code) of
this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 302A, Occupations Code, by adding Section
302.0001, as follows: 

Sec. 302.0001.  SHORT TITLE.  Authorizes this chapter to be cited as the
Licensed Vocational Nursing Practice Act. 

SECTION 2.  Amends Section 302.003, Occupations Code, as follows:

Sec. 302.003.  APPLICATION OF CHAPTER. (a)  Provides that this chapter
does not apply to certain types of nursing care, including:  

(1)  gratuitous nursing care of the sick that is provided by a friend,
rather than nursing of the sick provided without charge by a friend; 

(2)  nursing care provided by a registered nurse licensed under Chapter
301 (Registered Nurses); 

(3)  nursing care provided during a disaster under the state emergency
management plan under Section 418.042 (State Emergency Management Plan),
Government Code, if the person providing the care does not represent
himself or herself as a licensed vocational nurse (LVN), unless that
person is licensed in another state; 

(4)  nursing care in which treatment is provided exclusively by prayer or
spiritual means; 

(5)  an act performed by a person under the control or supervision of or
at the instruction of a person licensed by the Texas State Board of
Medical Examiners; 

 (6)  an act performed by a person licensed by another state agency
provided that the act is authorized by the statute under which the person
is licensed; 

(7)  nursing practice that is incidental to a program of study being
undertaken by a student enrolled in a vocational nurse education program
that is accredited by the Board of Vocational Nurse Examiners (board) and
if the program of study is leading to an initial license as an LVN; or 

(8)  nursing practice by an LVN or licensed practical nurse who is
licensed in another state and who is in this state on a nonroutine basis
for up to 120 hours for the purpose of providing certain types of care.
Creates Subsection (a) from existing text and adds and amends proposed
language.   

(b)  Provides that this chapter does not authorize the practice of
medicine as defined by Chapter 151 (General Provisions).  Creates
Subsection (b) from existing text, deletes existing text, and adds new
language.   

SECTION 3.  Amends Section 302.056(b), Occupations Code, to authorize a
board member to receive reimbursement for travel expenses as provided by
the General Appropriations Act.  Deletes existing text prohibiting a board
member from receiving reimbursement for travel expenses other than
transportation expenses.   

SECTION 4.  Amends Section 302.151(b), Occupations Code, to authorize the
board to adopt and enforce, rather than adopt, rules in accordance with
this chapter and necessary to perform its duties; to regulate the practice
of vocational nursing; to establish standards of professional conduct for
certain nursing professionals; and to determine whether an act constitutes
the practice of vocational nursing. Deletes existing text authorizing the
board to implement the purposes of this chapter.  Makes nonsubstantive
changes.  

SECTION 5.  Amends Section 302.255(a), Occupations Code, to require either
the director of education (director) or the director's designee, rather
than just the director, to visit and survey each vocational nursing
institution for the purpose of determining whether the certain board
requirements are being met.   

SECTION 6.  Amends Section 302.256(a), Occupations Code, to require the
director or the director's designee, rather than the board, to survey
periodically each vocational nurse education program in Texas.   

SECTION 7.  Amends Section 302.301(a), Occupations Code, to prohibit a
person from practicing vocational nursing unless the person holds a
license under this chapter.   

SECTION 8.  Amends Section 302.307(b), Occupations Code, to provide that a
temporary permit expires on the date the board notifies the applicant that
he or she has failed the examination.  Deletes existing text providing
that a temporary permit expires on the date a failing examination result
for the applicant is reported to the board. 

SECTION 9.  Amends Chapter 302G, Occupations Code, by adding Section
302.312, as follows: 

Sec. 302.312.  PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT. (a)
Prohibits a person from suspending, terminating, or otherwise
discriminating against or disciplining an LVN who refuses to engage in an
act or omission relating to patient care that would constitute ground for
disciplinary action under Section 302.403 (Disciplinary Authority of
Board; Methods of Discipline), if the LVN notifies the person at the time
of the refusal that the reason for the refusal is that the act or omission
either constitutes a ground for disciplinary action by the board or is a
violation of this chapter or a rule of the board.   
 
(b)  Provides that an act by a person under Subsection (a) does not
constitute a violation of this section if a nursing peer review committee
under Chapter 303 (Nursing Peer Review) determines that the act or
omission the LVN refused to engage in was not a ground for a disciplinary
action under Section 302.403, or that the act or omission the LVN refused
to engage in was a ground for disciplinary action under Section 302.403
and the person rescinds any disciplinary or discriminatory action taken
against the LVN, compensates the LVN for lost wages, and restores any lost
benefits to the LVN. 

(c)  Prohibits an LVN's rights under this section from being nullified by
a contract.   

(d)  Authorizes an appropriate licensing agency to take action against a
person who violates this section.   

SECTION 10.  Repealer: Sections 302.057(c) and (d) (Officers), Occupations
Code.   

SECTION 11.  Effective date:  September 1, 2003.