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


Senate Research CenterC.S.S.B. 241
78R9473 SMH-FBy: Shapleigh
Health and Human Services
4/30/2003
Committee Report (Substituted)


DIGEST AND PURPOSE 

Currently, the Board of Vocational Nurse Examiners (BVNE) may only state
what it believes is appropriate regarding whether a licensed vocational
nurse (LVN) may perform certain tasks under specific settings because LVNs
are licensed under a "title-control" act.  C.S.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

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter A, Chapter 302, 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 unlicensed person acting under the delegated authority of certain
persons; 

(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 Subchapter D, Chapter 302, Occupations Code, by adding
Section 302.159, as follows: 

Sec. 302.159.  ADVISORY COMMITTEE.  (a) Requires the Practice Advisory
Committee (advisory committee) to advise the Board of Vocational Nurse
Examiners (BVNE) regarding rules related to the scope of the practice of
vocational nursing. 

(b) Provides that the advisory committee is appointed by BVNE and consists
of certain persons as members. 

(c) Provides that the member of the advisory committee appointed under
Subdivision (b)(1) serves as the presiding officer of the advisory
committee. 

(d) Provides that members of the advisory committee other than the members
appointed under Subdivisions (b)(1), (2), and (13) are not entitled to
reimbursement for expenses. 

SECTION 6.  Amends Subchapter E, Chapter 302, Occupations Code, by adding
Section 302.207, as follows: 

Sec. 302.207.  MANDATORY REPORTING REQUIREMENTS.  (a) Requires certain
employers of a licensed vocational nurse to report to BVNE the name of
each licensed vocational nurse whose employment is terminated, or who
resigns to avoid termination, for engaging in any conduct specified by
Section 302.401 or 302.402. 

(b) Provides that a person is not liable in a civil action for a failure
to report as required by Subsection (a). 

(c) Authorizes the appropriate state licensing agency to take action
against a person regulated by the agency for a failure to report as
required by Subsection (a). 

SECTION 7.  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 8.  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 9.  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 10.  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 11.  Amends Sections 302.403 and 302.409, Occupations Code, as
follows: 

Sec. 302.403.  DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE.
Deletes existing text relating to written charges filed by the
secretarytreasurer. 

Sec. 302.409.  APPEAL.  Deletes existing text specifying that the
authorization to appeal a certain order is in a district court of the
county of the appellant's residence. 

SECTION 12.  Amends Subchapter I, Chapter 302, Occupations Code, by adding
Section 302.412, as follows: 

302.412.  CONFIDENTIALITY.  (a) Provides that a complaint and
investigation concerning a licensed vocational nurse under this
subchapter, and all information and material compiled by BVNE in
connection with the complaint and investigation, are restricted in certain
manners.  

(b) Authorizes information regarding a complaint and an investigation of a
licensed vocational nurse to be disclosed to certain persons,
notwithstanding Subsection (a). 

(c) Provides that the filing of formal charges against a licensed
vocational nurse by BVNE, the nature of those charges, disciplinary
proceedings of BVNE, and final disciplinary actions, including warnings
and reprimands, by BVNE are not confidential and are subject to disclosure
in accordance with Chapter 552, Government Code (Public Information). 

SECTION 13.  Amends Section 302.501, Occupations Code, as follows:

(a) Created from existing text.

(b) Authorizes a petition under this section to be filed in a district
court in certain counties. 

SECTION 14.  Amends Chapter 302, Occupations Code, by adding Subchapter L,
as follows: 

SUBCHAPTER L.  PRACTICE BY LICENSE HOLDER

Sec. 302.551.  SUPERVISION AND DELEGATION.  (a) Defines "delegate."

(b) Authorizes a licensed vocational nurse to only practice under the
supervision of certain persons authorized to order the administration of
medications and treatments. 
 
(c) Prohibits a licensed vocational nurse from delegating a health care
task, activity, or function to another person. 

Sec. 302.552.  PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT.  (a)
Prohibits a person from taking certain actions against a licensed
vocational nurse who refuses to engage in an act or omission relating to
patient care that would constitute a ground for disciplinary action under
Section 302.403 if the licensed vocational nurse notifies the person at
the time of the refusal that the act or omission meets certain conditions. 

(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 determines certain conditions of the act or omission. 

(c) Prohibits a licensed vocational nurse'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. 

Sec. 302.553.  IMMUNITY FROM LIABILITY FOR PROVIDING OR RELYING ON
INFORMATION.  (a) Prohibits a person from being subject to liability for
damages in a civil action if the person, in good action, provides BVNE
certain information. 

(b) Prohibits BVNE and the staff of BVNE from being subject to liability
for damages in a civil action for taking action in reliance on information
provided under Subsection (a). 

Sec. 302.554.  PROTECTION FOR REPORTING CERTAIN INFORMATION. Prohibits a
person from taking certain actions against a person who, in good faith,
provides information to BVNE as provided by Section 302.553(a). 

SECTION 15.  Amends Section 303.002(b), Occupations Code, to require BVNE
to enter into a memorandum of understanding with each state agency that
licenses, registers, or certifies a facility required by law to have a
nursing, rather than registered nurse, peer review committee. Makes a
conforming change. 

SECTION 16.  Amends Sections 303.005(a)-(d) and (f), Occupations Code, to
delete "registered" as a modifier for "nurse." 

SECTION 17.  Amends Section 531.051(f), Government Code, to make
conforming and nonsubstantive changes.  

SECTION 18.  Repealer: Sections 302.057(c) and (d) (Officers), Occupations
Code.   

SECTION 11.  (a) Effective date:  September 1, 2003.  

(b) Requires BVNE, as soon as practicable on or after the effective date
of this Act, to appoint the members of the advisory committee established
under Section 302.159, Occupations Code, as added by this Act.