78R9473 SMH-F
By: Villarreal H.B. No. 311
Substitute the following for H.B. No. 311:
By: McReynolds C.S.H.B. No. 311
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of licensed vocational nurses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 302, Occupations Code, is
amended by adding Section 302.0001 to read as follows:
Sec. 302.0001. SHORT TITLE. This chapter may be cited as
the Licensed Vocational Nursing Practice Act.
SECTION 2. Section 302.003, Occupations Code, is amended to
read as follows:
Sec. 302.003. APPLICATION OF CHAPTER. (a) This chapter
does not apply to:
(1) gratuitous nursing care of the sick that is
provided [without charge] by a friend;
(2) nursing care provided by a registered nurse
licensed under Chapter 301;
(3) nursing care provided during a disaster under the
state emergency management plan adopted under Section 418.042,
Government Code, if the person providing the care does not
represent that the person is a licensed vocational nurse, unless
the person is licensed in another state;
(4) nursing care in which treatment is provided solely
by prayer or spiritual means;
(5) an unlicensed person acting under the delegated
authority of:
(A) a physician licensed by the Texas State Board
of Medical Examiners; or
(B) a registered nurse licensed under Chapter 301
or authorized to practice in this state under Chapter 304, as added
by Section 14.130(a), Chapter 1420, Acts of the 77th Legislature,
Regular Session, 2001;
(6) an act performed by a person licensed by another
state agency if the act is authorized by the statute under which the
person is licensed;
(7) the practice of nursing that is incidental to a
program of study by a student enrolled in a board-accredited
vocational nurse education program leading to an initial license as
a licensed vocational nurse; or
(8) the practice of nursing by a licensed vocational
nurse or licensed practical nurse licensed in another state who is
in this state on a nonroutine basis for a period not to exceed 120
hours to provide:
(A) care to a patient being transported into, out
of, or through this state; or
(B) vocational nursing.
(b) This chapter does not authorize the practice of medicine
as defined by Chapter 151. [or family member; or
[(2) a person who does not:
[(A) represent to the public that the person is a
licensed vocational nurse; or
[(B) use the abbreviation "L.V.N."]
SECTION 3. Section 302.056(b), Occupations Code, is amended
to read as follows:
(b) A board member may [not] receive reimbursement for
travel expenses[, including expenses for meals and lodging, other
than transportation expenses. A member is entitled to
reimbursement for transportation expenses] as provided by the
General Appropriations Act.
SECTION 4. Section 302.151(b), Occupations Code, is amended
to read as follows:
(b) The board may adopt and enforce rules consistent with
this chapter and [as] necessary to:
(1) perform [govern] its duties and conduct
proceedings before the board;
(2) regulate the practice of vocational nursing;
(3) establish standards of professional conduct for
license holders under this chapter; and
(4) determine whether an act constitutes the practice
of vocational nursing [and to implement the purposes of this
chapter].
SECTION 5. Subchapter D, Chapter 302, Occupations Code, is
amended by adding Section 302.159 to read as follows:
Sec. 302.159. ADVISORY COMMITTEE. (a) The Practice
Advisory Committee shall advise the board regarding rules related
to the scope of the practice of vocational nursing.
(b) The advisory committee is appointed by the board and
consists of the following members:
(1) a member of the board;
(2) a member of the Board of Nurse Examiners;
(3) a licensed vocational nurse recommended by the
Licensed Vocational Nurses Association of Texas;
(4) a licensed vocational nurse recommended by the
Texas League for Vocational Nurses;
(5) a registered nurse recommended by the Texas
Organization of Nurse Executives;
(6) a registered nurse recommended by the Texas Nurses
Association;
(7) a person recommended by the Texas Association of
Vocational Nurse Educators;
(8) a person recommended by the Texas Organization for
the Advancement of Associate Degree Nursing;
(9) a person recommended by the Texas Organization of
Baccalaureate and Graduate Nursing Educators;
(10) a person recommended by the Texas Hospital
Association;
(11) a person recommended by the Texas Health Care
Association or the Texas Association of Homes and Services for the
Aging;
(12) a person recommended by the Texas Association for
Home Care;
(13) a person recommended by the Texas Department of
Mental Health and Mental Retardation; and
(14) a person recommended by the Texas Association of
School Nurses.
(c) The member of the advisory committee appointed under
Subdivision (b)(1) serves as the presiding officer of the
committee.
(d) 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. Subchapter E, Chapter 302, Occupations Code, is
amended by adding Section 302.207 to read as follows:
Sec. 302.207. MANDATORY REPORTING REQUIREMENTS. (a) A
hospital, nursing home, or other employer of a licensed vocational
nurse shall report to the board 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) A person is not liable in a civil action for a failure to
report as required by Subsection (a).
(c) The appropriate state licensing agency may take action
against a person regulated by the agency for a failure to report as
required by Subsection (a).
SECTION 7. Section 302.255(a), Occupations Code, is amended
to read as follows:
(a) The director of education or the director of education's
designee shall visit and survey each vocational nursing institution
to determine whether the board's minimum requirements for
vocational nurse education programs are being met.
SECTION 8. Section 302.256(a), Occupations Code, is amended
to read as follows:
(a) The director of education or the director of education's
designee [board] periodically shall survey each vocational nurse
education program offered in this state. A written report of the
survey must be submitted to the board.
SECTION 9. Section 302.301(a), Occupations Code, is amended
to read as follows:
(a) A person may not practice vocational nursing or use the
designation "Licensed Vocational Nurse" or the abbreviation
"L.V.N." unless the person holds a license under this chapter.
SECTION 10. Section 302.307(b), Occupations Code, is
amended to read as follows:
(b) A temporary permit expires on the date:
(1) the applicant receives a permanent license from
the board; or
(2) the board notifies the applicant that the
applicant has failed the examination [a failing examination result
for the applicant is reported to the board].
SECTION 11. Sections 302.403 and 302.409, Occupations Code,
are amended to read as follows:
Sec. 302.403. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF
DISCIPLINE. After a hearing is held on specific sworn written
charges [filed by the secretary-treasurer], if the board determines
that a person has committed an act listed in Section 302.402, the
board may:
(1) refuse to admit the person to a board examination;
(2) deny the person's application for a license,
license renewal, or temporary permit;
(3) issue a warning or reprimand;
(4) suspend or revoke the person's license as a
vocational nurse; or
(5) place on probation a person whose license has been
suspended.
Sec. 302.409. APPEAL. A person may appeal a board order
disciplining the person [in a district court of the county of the
person's residence].
SECTION 12. Subchapter I, Chapter 302, Occupations Code, is
amended by adding Section 302.412 to read as follows:
Sec. 302.412. CONFIDENTIALITY. (a) A complaint and
investigation concerning a licensed vocational nurse under this
subchapter, and all information and material compiled by the board
in connection with the complaint and investigation, are:
(1) confidential and not subject to disclosure under
Chapter 552, Government Code; and
(2) not subject to disclosure, discovery, subpoena, or
other means of legal compulsion for release to anyone other than the
board or a board employee or agent involved in license holder
discipline.
(b) Notwithstanding Subsection (a), information regarding a
complaint and an investigation of a licensed vocational nurse may
be disclosed to:
(1) a person involved with the board in a disciplinary
action against the licensed vocational nurse;
(2) a vocational nursing licensing or disciplinary
board in another jurisdiction;
(3) a peer assistance program approved by the board
under Chapter 467, Health and Safety Code;
(4) a law enforcement agency; or
(5) a person engaged in bona fide research, if all
information identifying a specific individual has been deleted.
(c) The filing of formal charges against a licensed
vocational nurse by the board, the nature of those charges,
disciplinary proceedings of the board, and final disciplinary
actions, including warnings and reprimands, by the board are not
confidential and are subject to disclosure in accordance with
Chapter 552, Government Code.
SECTION 13. Section 302.501, Occupations Code, is amended
to read as follows:
Sec. 302.501. INJUNCTIONS. (a) On petition of the board, a
district court may enjoin a person who is violating this chapter
from continuing the violation.
(b) A petition under this section may be filed in a district
court in:
(1) Travis County;
(2) the county in which the defendant resides; or
(3) the county in which the violation is occurring.
SECTION 14. Chapter 302, Occupations Code, is amended by
adding Subchapter L to read as follows:
SUBCHAPTER L. PRACTICE BY LICENSE HOLDER
Sec. 302.551. SUPERVISION AND DELEGATION. (a) In this
section, "delegate" means to grant a person the legal authority to
perform an act the person is not otherwise legally authorized to
perform.
(b) A licensed vocational nurse may only practice under the
supervision of a registered nurse, physician, dentist, podiatrist,
or other health care provider authorized to order the
administration of medications and treatments.
(c) A licensed vocational nurse may not delegate a health
care task, activity, or function to another person.
Sec. 302.552. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN
CONDUCT. (a) A person may not suspend, terminate, or otherwise
discipline or discriminate 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 reason for refusing is
that the act or omission:
(1) constitutes a ground for disciplinary action by
the board; or
(2) is a violation of this chapter or a rule of the
board.
(b) 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:
(1) that the act or omission the licensed vocational
nurse refused to engage in was not a ground for disciplinary action
under Section 302.403; or
(2) that:
(A) the act or omission the licensed vocational
nurse refused to engage in was a ground for disciplinary action
under Section 302.403; and
(B) the person:
(i) rescinds any disciplinary or
discriminatory action taken against the licensed vocational nurse;
(ii) compensates the licensed vocational
nurse for lost wages; and
(iii) restores to the licensed vocational
nurse any lost benefits.
(c) A licensed vocational nurse's rights under this section
may not be nullified by a contract.
(d) An appropriate licensing agency may take action against
a person who violates this section.
Sec. 302.553. IMMUNITY FROM LIABILITY FOR PROVIDING OR
RELYING ON INFORMATION. (a) A person may not be subject to
liability for damages in a civil action if the person, in good
faith, provides to the board information relating to:
(1) an alleged incident of negligence or malpractice
on the part of a holder of or an applicant for a license under this
chapter; or
(2) the qualifications, fitness, or character of a
holder of or an applicant for a license under this chapter.
(b) The board and the staff of the board may not be 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. A person may not suspend, terminate, or otherwise
discipline or discriminate against a person who, in good faith,
provides information to the board as provided by Section
302.553(a).
SECTION 15. Section 303.002(b), Occupations Code, is
amended to read as follows:
(b) The board shall enter into a memorandum of understanding
with each state agency that licenses, registers, or certifies a
facility required by law to have a nursing [registered nurse] peer
review committee. The memorandum of understanding must:
(1) state the actions the board and agency are to take
to encourage compliance with the requirement to have a nursing
[registered nurse] peer review committee; and
(2) be adopted as a rule of the board and the agency.
SECTION 16. Sections 303.005(a)-(d) and (f), Occupations
Code, are amended to read as follows:
(a) In this section, "duty to a patient" means conduct
required by standards of practice or professional conduct adopted
by the board. The term includes administrative decisions directly
affecting a [registered] nurse's ability to comply with that duty.
(b) If a person who regularly employs, hires, or otherwise
contracts for the services of at least 10 [registered] nurses
requests one of those nurses to engage in conduct that the nurse
believes violates a [registered] nurse's duty to a patient, the
nurse may request, on a form produced by the board, a determination
by a nursing peer review committee under this chapter of whether the
conduct violates a [registered] nurse's duty to a patient.
(c) A [registered] nurse who in good faith requests a peer
review determination under Subsection (b):
(1) may not be disciplined or discriminated against
for making the request;
(2) may engage in the requested conduct pending the
peer review;
(3) is not subject to the reporting requirement under
Subchapter I, Chapter 301; and
(4) may not be disciplined by the board for engaging in
that conduct while the peer review is pending.
(d) The determinations of the peer review committee shall be
considered in a decision to discipline the nurse, but the
determinations are not binding if a [registered] nurse
administrator believes in good faith that the peer review committee
has incorrectly determined a [registered] nurse's duty.
(f) A [registered] nurse's rights under this section may not
be nullified by a contract.
SECTION 17. Section 531.051(f), Government Code, is amended
to read as follows:
(f) Sections [Section] 301.251(a) and 302.301(a),
Occupations Code, do [does] not apply to delivery of a service for
which payment is provided under the voucher payment program
developed under this section if:
(1) the person who delivers the service:
(A) has not been denied a license under Chapter
301 or 302, Occupations Code;
(B) has not been issued a license under Chapter
301 or 302, Occupations Code, that is revoked or suspended; and
(C) provides a service listed under Subsection
(h); and
(2) the consumer who receives the service:
(A) has a functional disability and the service
would have been performed by the consumer, or the parent or guardian
for the consumer, except for that disability; and
(B) if:
(i) the consumer is capable of training the
person in the proper performance of the service, the consumer
directs the person to deliver the service; or
(ii) the consumer is not capable of
training the person in the proper performance of the service, the
consumer's parent or guardian is capable of training the person in
the proper performance of the service and directs the person to
deliver the service.
SECTION 18. Sections 302.057(c) and (d), Occupations Code,
are repealed.
SECTION 19. (a) This Act takes effect September 1, 2003.
(b) As soon as practicable on or after the effective date of
this Act, the Board of Vocational Nurse Examiners shall appoint the
members of the Practice Advisory Committee established under
Section 302.159, Occupations Code, as added by this Act.