Amend SB 993 (engrossed version) as follows:
(1) In the recital to SECTION 5 of the bill (page 3, line 17) strike "(b) and (e)" and substitute "(b), (e), and (f)".
(2) In SECTION 5 of the bill, following amended Subsection
(e), Section 301.402, Occupations Code (page 4, between lines 7 and
8), insert the following:
(f) A person may not suspend or terminate the employment of,
or otherwise discipline or discriminate against, a person who
reports, without malice, under this section. A violation of this
subsection is subject to Section 301.413 [nurse may report to the
nurse's employer or another entity at which the nurse is authorized
to practice any situation that the nurse has reasonable cause to
believe exposes a patient to substantial risk of harm as a result of
a failure to provide patient care that conforms to minimum
standards of acceptable and prevailing professional practice or to
statutory, regulatory, or accreditation standards. For purposes of
this subsection, the employer or entity includes an employee or
agent of the employer or entity].
(3) Strike SECTION 13 of the bill (page 8, line 23, through
page 9, line 5) and substitute the following appropriately numbered
SECTION:
SECTION ____. Section 303.005, Occupations Code, is amended
by adding Subsections (a-1) and (i) and amending Subsections (b),
(d), and (h) to read as follows:
(a-1) For purposes of this section, a nurse or nurse
administrator does not act in good faith in connection with a
request made or an action taken by the nurse or nurse administrator
if there is not a reasonable factual or legal basis for the request
or action.
(b) If a person who is required to establish a nursing peer
review committee under Section 303.0015 [regularly employs, hires,
or otherwise contracts for the services of at least 10 nurses]
requests a nurse [one of those nurses] to engage in conduct that the
nurse believes violates a nurse's duty to a patient, the nurse may
request, on a form developed or approved by the board, a
determination by a nursing peer review committee under this chapter
of whether the conduct violates a nurse's duty to a patient.
(d) If a nurse requests a peer review determination under
Subsection (b) and refuses to engage in the requested conduct
pending the peer review, the determination [The determinations] of
the peer review committee shall be considered in any [a] decision by
the nurse's employer to discipline the nurse for the refusal to
engage in the requested conduct, but the determination is
[determinations are] not binding if a nurse administrator believes
in good faith that the peer review committee has incorrectly
determined a nurse's duty. This subsection does not affect the
protections provided by Subsection (c)(1) or Section 301.352.
(h) A person may not suspend or terminate the employment of,
or otherwise discipline or discriminate against, a nurse who in
good faith requests a peer review determination under this section
or a person who advises a nurse of the nurse's right to request a
determination or of the procedures for requesting a determination.
A violation of this subsection is subject to Section 301.413 [A
person is not required to provide a peer review determination under
this section for a request made by a registered nurse, unless the
person regularly employs, hires, or otherwise contracts for the
services of at least five registered nurses].
(i) A person who is required to provide, on request, a
nursing peer review committee determination under Subsection (b)
shall adopt and implement a policy to inform nurses of the right to
request a nursing peer review committee determination and the
procedure for making a request.
(4) In Subdivision (3), SECTION 16 of the bill (page 10,
line 19), strike "Subsection (a)" and substitute "Subsections (a)
and (c)".
(5) Strike SECTION 18 of the bill and substitute the
following appropriately numbered SECTION:
SECTION ____. This Act takes effect September 1, 2007.
(6) Add the following appropriately numbered SECTIONS to
the bill:
SECTION ____. Section 301.352, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (a-1) and (f) to
read as follows:
(a) A person may not suspend, terminate, or otherwise
discipline or discriminate against a nurse who refuses to engage in
an act or omission as provided by Subsection (a-1).
(a-1) A nurse may refuse to engage in an act or omission
relating to patient care that would constitute grounds for
reporting the nurse to the board under Subchapter I, that
constitutes a minor incident, or that violates this chapter or a
board rule if the nurse notifies the person at the time of the
refusal that the reason for refusing is that the act or omission:
(1) constitutes grounds for reporting the nurse to the
board; or
(2) is a violation of this chapter or a rule of the
board.
(f) A violation of this section is subject to Section
301.413.
SECTION ____. The heading to Section 301.402, Occupations
Code, is amended to read as follows:
Sec. 301.402. MANDATORY REPORT BY NURSE [DUTY OF NURSE TO
REPORT].
SECTION ____. Subchapter I, Chapter 301, Occupations Code,
is amended by adding Section 301.4025 to read as follows:
Sec. 301.4025. OPTIONAL REPORT BY NURSE. (a) In a
written, signed report to the appropriate licensing board or
accrediting body, a nurse may report a licensed health care
practitioner, agency, or facility that the nurse has reasonable
cause to believe has exposed a patient to substantial risk of harm
as a result of failing to provide patient care that conforms to:
(1) minimum standards of acceptable and prevailing
professional practice, for a report made regarding a practitioner;
or
(2) statutory, regulatory, or accreditation
standards, for a report made regarding an agency or facility.
(b) A nurse may report to the nurse's employer or another
entity at which the nurse is authorized to practice any situation
that the nurse has reasonable cause to believe exposes a patient to
substantial risk of harm as a result of a failure to provide patient
care that conforms to minimum standards of acceptable and
prevailing professional practice or to statutory, regulatory, or
accreditation standards. For purposes of this subsection, an
employer or entity includes an employee or agent of the employer or
entity.
(c) A person may not suspend or terminate the employment of,
or otherwise discipline or discriminate against, a person who
reports, without malice, under this section. A violation of this
subsection is subject to Section 301.413.
SECTION ____. Subsections (a), (b), (c), and (e), Section
301.413, Occupations Code, are amended to read as follows:
(a) A person named as a defendant in a civil action or
subjected to other retaliatory action as a result of filing a report
required, authorized, or reasonably believed to be required or
authorized under this subchapter as a result of refusing to engage
in conduct as authorized by Section 301.352, or as a result of
requesting in good faith a nursing peer review determination under
Section 303.005, may file a counterclaim in the pending action or
prove a cause of action in a subsequent suit to recover defense
costs, including reasonable attorney's fees and actual and punitive
damages, if the suit or retaliatory action is determined to be
frivolous, unreasonable, or taken in bad faith.
(b) A person may not suspend or terminate the employment of,
or otherwise discipline or discriminate against, a person who:
(1) reports, without malice, under this subchapter; or
(2) requests, in good faith, a nursing peer review
determination under Section 303.005.
(c) A person who reports under this subchapter, refuses to
engage in conduct as authorized by Section 301.352, or requests a
nursing peer review determination under Section 303.005 has a cause
of action against a person who violates Subsection (b), and may
recover:
(1) the greater of:
(A) actual damages, including damages for mental
anguish even if no other injury is shown; or
(B) $5,000 [$1,000];
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(e) A person who brings an action under this section has the
burden of proof. It is a rebuttable presumption that the person's
employment was suspended or terminated for reporting under this
subchapter, for refusing to engage in conduct as authorized by
Section 301.352, or for requesting a peer review committee
determination under Section 303.005 if:
(1) the person was suspended or terminated within 60
days after the date the report, refusal, or request was made; and
(2) the board or a court determines that:
(A) the report that is the subject of the cause of
action was:
(i) [(A)] authorized or required under
Section 301.402, 301.4025, 301.403, 301.405, 301.406, 301.407,
301.408, 301.409, or 301.410; and
(ii) [(B)] made without malice;
(B) the request for a peer review committee
determination that is the subject of the cause of action was:
(i) authorized under Section 303.005; and
(ii) made in good faith; or
(C) the refusal to engage in conduct was
authorized by Section 301.352.
(7) Renumber the SECTIONS of the bill accordingly.