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A BILL TO BE ENTITLED
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AN ACT
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relating to reports by nurses of certain conduct and protection |
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from retaliation for those nurses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 301.352, Occupations Code, is amended by |
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amending Subsection (a) and adding Subsections (a-1) and (f) to |
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read as follows: |
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(a) A person may not suspend, terminate, or otherwise |
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discipline or discriminate against a nurse who refuses to engage in |
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an act or omission as provided by Subsection (a-1). |
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(a-1) A nurse may refuse to engage in an act or omission |
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relating to patient care that would constitute grounds for |
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reporting the nurse to the board under Subchapter I, that |
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constitutes a minor incident, or that violates this chapter or a |
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board rule if the nurse notifies the person at the time of the |
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refusal that the reason for refusing is that the act or omission: |
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(1) constitutes grounds for reporting the nurse to the |
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board; or |
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(2) is a violation of this chapter or a rule of the |
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board. |
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(f) A violation of this section is subject to Section |
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301.413. |
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SECTION 2. The heading to Section 301.402, Occupations |
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Code, is amended to read as follows: |
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Sec. 301.402. MANDATORY REPORT BY NURSE [DUTY OF NURSE TO
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REPORT]. |
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SECTION 3. Subsection (f), Section 301.402, Occupations |
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Code, is amended to read as follows: |
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(f) A person may not suspend or terminate the employment of, |
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or otherwise discipline or discriminate against, a person who |
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reports, without malice, under this section. A violation of this |
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subsection is subject to Section 301.413 [nurse may report to the
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nurse's employer or another entity at which the nurse is authorized
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to practice any situation that the nurse has reasonable cause to
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believe exposes a patient to substantial risk of harm as a result of
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a failure to provide patient care that conforms to minimum
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standards of acceptable and prevailing professional practice or to
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statutory, regulatory, or accreditation standards. For purposes of
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this subsection, the employer or entity includes an employee or
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agent of the employer or entity]. |
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SECTION 4. Subchapter I, Chapter 301, Occupations Code, is |
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amended by adding Section 301.4025 to read as follows: |
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Sec. 301.4025. OPTIONAL REPORT BY NURSE. (a) In a |
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written, signed report to the appropriate licensing board or |
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accrediting body, a nurse may report a licensed health care |
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practitioner, agency, or facility that the nurse has reasonable |
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cause to believe has exposed a patient to substantial risk of harm |
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as a result of failing to provide patient care that conforms to: |
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(1) minimum standards of acceptable and prevailing |
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professional practice, for a report made regarding a practitioner; |
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or |
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(2) statutory, regulatory, or accreditation |
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standards, for a report made regarding an agency or facility. |
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(b) A nurse may report to the nurse's employer or another |
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entity at which the nurse is authorized to practice any situation |
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that the nurse has reasonable cause to believe exposes a patient to |
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substantial risk of harm as a result of a failure to provide patient |
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care that conforms to minimum standards of acceptable and |
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prevailing professional practice or to statutory, regulatory, or |
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accreditation standards. For purposes of this subsection, an |
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employer or entity includes an employee or agent of the employer or |
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entity. |
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(c) A person may not suspend or terminate the employment of, |
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or otherwise discipline or discriminate against, a person who |
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reports, without malice, under this section. A violation of this |
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subsection is subject to Section 301.413. |
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SECTION 5. Subsections (a), (b), (c), and (e), Section |
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301.413, Occupations Code, are amended to read as follows: |
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(a) A person named as a defendant in a civil action or |
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subjected to other retaliatory action as a result of filing a report |
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required, authorized, or reasonably believed to be required or |
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authorized under this subchapter as a result of refusing to engage |
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in conduct as authorized by Section 301.352, or as a result of |
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requesting in good faith a nursing peer review determination under |
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Section 303.005, may file a counterclaim in the pending action or |
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prove a cause of action in a subsequent suit to recover defense |
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costs, including reasonable attorney's fees and actual and punitive |
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damages, if the suit or retaliatory action is determined to be |
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frivolous, unreasonable, or taken in bad faith. |
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(b) A person may not suspend or terminate the employment of, |
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or otherwise discipline or discriminate against, a person who: |
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(1) reports, without malice, under this subchapter; or |
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(2) requests, in good faith, a nursing peer review |
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determination under Section 303.005. |
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(c) A person who reports under this subchapter, refuses to |
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engage in conduct as authorized by Section 301.352, or requests a |
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nursing peer review determination under Section 303.005 has a cause |
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of action against a person who violates Subsection (b), and may |
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recover: |
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(1) the greater of: |
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(A) actual damages, including damages for mental |
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anguish even if no other injury is shown; or |
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(B) $5,000 [$1,000]; |
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(2) exemplary damages; |
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(3) court costs; and |
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(4) reasonable attorney's fees. |
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(e) A person who brings an action under this section has the |
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burden of proof. It is a rebuttable presumption that the person's |
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employment was suspended or terminated for reporting under this |
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subchapter, for refusing to engage in conduct as authorized by |
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Section 301.352, or for requesting a peer review committee |
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determination under Section 303.005 if: |
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(1) the person was suspended or terminated within 60 |
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days after the date the report, refusal, or request was made; and |
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(2) the board or a court determines that: |
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(A) the report that is the subject of the cause of |
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action was: |
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(i) [(A)] authorized or required under |
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Section 301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, |
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301.408, 301.409, or 301.410; and |
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(ii) [(B)] made without malice; |
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(B) the request for a peer review committee |
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determination that is the subject of the cause of action was: |
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(i) authorized under Section 303.005; and |
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(ii) made in good faith; or |
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(C) the refusal to engage in conduct was |
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authorized by Section 301.352. |
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SECTION 6. Section 303.005, Occupations Code, is amended by |
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adding Subsections (a-1), (i), and (j) and amending Subsection (d) |
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to read as follows: |
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(a-1) For purposes of this section, a nurse or nurse |
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administrator does not act in good faith in connection with a |
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request made or an action taken by the nurse or nurse administrator |
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if there is not a reasonable factual or legal basis for the request |
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or action. |
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(d) If a nurse requests a peer review determination under |
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Subsection (b) and refuses to engage in the requested conduct |
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pending the peer review, the determination [The determinations] of |
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the peer review committee shall be considered in any [a] decision by |
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the nurse's employer to discipline the nurse for the refusal to |
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engage in the requested conduct, but the determination is |
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[determinations are] not binding if a nurse administrator believes |
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in good faith that the peer review committee has incorrectly |
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determined a nurse's duty. This subsection does not affect the |
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protections provided by Subsection (c)(1) or Section 301.352. |
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(i) A person may not suspend or terminate the employment of, |
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or otherwise discipline or discriminate against, a nurse who in |
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good faith requests a peer review determination under this section |
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or a person who advises a nurse of the nurse's right to request a |
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determination or of the procedures for requesting a determination. |
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A violation of this subsection is subject to Section 301.413. |
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(j) A person who is required to provide, on request, a |
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nursing peer review committee determination under Subsection (b) |
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shall adopt and implement a policy to inform nurses of the right to |
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request a nursing peer review committee determination and the |
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procedure for making a request. |
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SECTION 7. Subsection (c), Section 301.402, Occupations |
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Code, is repealed. |
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SECTION 8. The changes in law made by this Act apply only to |
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conduct that occurs on or after the effective date of this Act. |
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Conduct that occurs before the effective date of this Act is |
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governed by the law in effect when the conduct occurs, and the |
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former law is continued in effect for that purpose. |
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SECTION 9. This Act takes effect September 1, 2007. |
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* * * * * |