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BILL ANALYSIS |
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By: Howard, Donna |
BACKGROUND AND PURPOSE
The Nursing Practice Act provides nurses a right to assert a legal claim based on retaliation
against a nurse for engaging in protected patient advocacy activities. Protected patient activities
include:
· reporting patient care concerns within the facility;
· refusing to engage in conduct that violates the Nursing Practice Act or rules of the
board of nursing;
· requesting safe harbor nursing peer review if a nurse is requested to engage in conduct
that the nurse believes would violate the nurse’s duty to a patient; and
· reporting licensed practitioners and facilities to their respective licensing boards or
accreditation bodies because of failure to meet accepted practice standards.
Section 301.413 of the Nursing Practice Act provides any nurse who is retaliated or
discriminated against because of engaging in any of these protected patient advocacy activities
the right to file a lawsuit based on that retaliation or discrimination.
Texas courts, however, have ruled the language of Section 301.413 does not clearly express a
legislative intent to waive the right of governmental entities not to be sued, that is, there is not a
clear waiver of sovereign immunity. Consequently, publicly employed hospital nurses do not
have the same right as privately employed hospital nurses to seek legal relief if retaliated against
for engaging in protected patient advocacy protections.
Hospitals operated by or on behalf of governmental entities include state hospitals, such as M.D.
Anderson, county hospitals, such as Parkland, and hospitals operated by hospital districts. Nurses
in these hospitals may have some protections under other laws but those protections are more
limited than the protections provided by the Nursing Practice Act.
The public employee whistleblower law applies to all public employees but protects only nurses
who report violations of the law by their employers to an appropriate law enforcement authority,
which includes a state or federal agency authorized to regulate or enforce the law alleged to be
violated. It does not protect the nurse for raising patient care concerns within the facility or for
requesting safe harbor nursing peer review. The Health and Safety Code provides whistleblower
protections for employees of hospitals, mental health facilities, and treatment facilities. This
statute protects any employee, including nurses, from retaliation for reporting a viola tion of law
or a Department of State Health Services rule, including reports to supervisors, administrators,
state regulatory agencies, and law enforcement. However, Texas Courts of Appeal appear to be
split on whether publicly employed hospital nurses can sue under this provision; the Texas
Supreme Court has not ruled on the issue. It is also unclear if this statute covers raising patient
care concerns or requesting safe harbor nursing peer review which are covered by the Nursing
Practice Act.
H.B. 2719 gives a publicly employed hospital nurse the same rights that a privately employed
hospital nurse has to seek a remedy in court for retaliation against a nurse who engaged in
protected patient advocacy activities. The bill waives sovereign immunity of a state or local
governmental entity from suit and from liability and permits a hospital operated by or on behalf
of a governmental entity to be sued if the hospital retaliates against a nurse for advocating for the nurse's patient. HB 2719 limits the type of relief and amount of damages a publicly employed hospital nurse may recover to those available to other public employees under the public employee whistleblower law.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency, or institution.
ANALYSIS
H.B. 2719 amends the Occupations Code to authorize a nurse employed by a hospital operated
by or on behalf of a state or local governmental entity who alleges a violation of the provisions
prohibiting the suspension or termination of the employment of a person who reports without
malice a violation or who requests in good faith a nursing peer review determination to sue the
state or local governmental entity. The bill waives the sovereign immunity of the state or local
governmental entity from suit and from liability for the limited purpose of allowing the nurse to
maintain a lawsuit in state court. The bill applies provisions relating to the relief available to a
public employee whose employment is suspended or who is subjected to an adverse personnel
action in violation of state law to a lawsuit initiated by a nurse, as described in the bill, and
specifies that this relief is in addition to any other remedies a nurse may have under state or
federal law as a public employee. The bill defines "local governmental entity," "public
employee," "state governmental entity," and "hospital."
EFFECTIVE DATE
September 1, 2009.