BILL ANALYSIS
Senate Research Center C.S.S.B. 1880
81R18711 NC-F By: Nelson
Committee Report (Substituted)
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
The Texas Board of Nursing (BON) has previously adopted rules on complaints and administrative penalties to provide clear guidance to nurses regarding complaints, confidentiality, sanctions, and administrative penalties. This bill would codify these rules to strengthen the role of BON in overseeing licensure and make changes to more closely reflect how other state licensing boards operate in terms of complaints, sanctions, and administrative penalties.
C.S.S.B. 1880 amends current law relating to the regulation of nursing.
RULEMAKING AUTHORITY
Rulemaking authority previously granted to the Texas Board of Nursing (BON) is modified in SECTION 3 (Section 301.1605, Occupations Code) of this bill.
Rulemaking authority is expressly granted to BON in SECTION 8 (Section 301.4521, Occupations Code) and SECTION 10 (Section 301.4535, Occupations Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 301.160(a)(2), Occupations Code, to redefine "targeted continuing nursing education."
SECTION 2. Amends Sections 301.160(b) and (j), Occupations Code, as follows:
(b) Authorizes the Texas Board of Nursing (BON) to develop pilot programs to evaluate the effectiveness of mechanisms, including proactive nursing peer review and targeted continuing nursing education, for maintenance of the clinical competency of a nurse, rather than registered nurse, in the nurse's area of practice and the understanding by nurses of the laws, including regulations, governing the practice of nursing. Makes conforming changes.
(j) Deletes existing text requiring BON to issue a final report not later than September 1, 2000. Makes conforming and nonsubstantive changes.
SECTION 3. Amends Sections 301.1605(a) and (c), Occupations Code, to authorize BON to approve and adopt rules regarding pilot programs for innovative applications in the practice and regulation of nursing, rather than professional nursing. Makes conforming changes.
SECTION 4. Amends Sections 301.1606(a) and (b), Occupations Code, as follows:
(a) Authorizes BON to solicit proposals, rather than requires BON, before January 1, 2004, to solicit proposals, for pilot programs designed to evaluate the efficacy and effect on protection of the public of reporting systems designed to encourage identification of system errors.
(b) Makes conforming changes.
SECTION 5. Amends Subchapter E, Chapter 301, Occupations Code, by adding Sections 301.206 and 301.207, as follows:
Sec. 301.206. CONFIDENTIALITY OF INFORMATION COLLECTED FOR EMERGENCY RELIEF PROGRAMS. (a) Defines "emergency relief program."
(b) Provides that a nurse's personal contact information, including email addresses, telephone numbers, and fax numbers, collected by BON for use by an emergency relief program is confidential and not subject to disclosure under Chapter 552 (Public Information), Government Code, and is not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than for the purpose of contacting the nurse to assist in an emergency relief program.
Sec. 301.207. CONFIDENTIALITY OF HEALTH INFORMATION PROVIDED FOR LICENSURE. Provides that information regarding a person's diagnosis or treatment for a physical condition, mental condition, or chemical dependency that the person submits to BON for a petition for a declaratory order of eligibility for a license or for an application for an initial license or a license renewal under this chapter is confidential to the same extent information collected on a nurse as part of an investigation of a complaint is confidential under Section 301.466 (Confidentiality).
SECTION 6. Amends Section 301.257(a), Occupations Code, to authorize a person to petition BON for a declaratory order as to the person's eligibility for a license under this chapter if the person has reason to believe that the person is ineligible for the license and is enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse or vocational nurse, or is an applicant for a license, rather than has reason to believe that the person is ineligible for the license.
SECTION 7. Amends Section 301.401(2), Occupations Code, to redefine "minor incident."
SECTION 8. Amends Subchapter J, Chapter 301, Occupations Code, by adding Section 301.4521, as follows:
Sec. 301.4521. PHYSICAL AND PSYCHOLOGICAL EVALUATION. (a) Defines "applicant" and "evaluation."
(b) Authorizes BON to require a nurse or applicant to submit to an evaluation only if BON has probable cause to believe that the nurse or applicant is unable to practice nursing with reasonable skill and safety to patients because of physical impairment, mental impairment, or chemical dependency or abuse of drugs or alcohol.
(c) Requires that a demand for an evaluation under Subsection (b) be in writing and state the reasons probable cause exists to require the evaluation, and state that refusal by the nurse or applicant to submit to the evaluation will result in an administrative hearing to be held to make a final determination of whether probable cause for the evaluation exists.
(d) Requires BON, if the nurse or applicant refuses to submit to the evaluation, to schedule a hearing on the issue of probable cause to be conducted by the State Office of Administrative Hearings (SOAH). Requires the nurse or applicant to be notified of the hearing by personal service or certified mail. Provides that the hearing is limited to the issue of whether BON had probable cause to require an evaluation. Authorizes the nurse or applicant to present testimony and other evidence at the hearing to show why the nurse or applicant should not be required to submit to the evaluation. Provides that BON has the burden of proving that probable cause exists. Requires the hearing officer, at the conclusion of the hearing, to enter an order requiring the nurse or applicant to submit to the evaluation or an order rescinding BON's demand for an evaluation. Prohibits the order from being vacated or modified under Section 2001.058 (Hearing Conducted by State Office of Administrative Hearings), Government Code.
(e) Authorizes BON, if a nurse or applicant refuses to submit to an evaluation after an order requiring the evaluation is entered under Subsection (d), to refuse to issue or renew a license, suspend a license, or issue an order limiting the license.
(f) Authorizes BON to request a nurse or applicant to consent to an evaluation by a practitioner approved by BON for a reason other than a reason listed in Subsection (b). Requires that a request for an evaluation under this subsection be in writing and state the reasons for the request, the type of evaluation requested, how the board may use the evaluation, that the nurse or applicant may refuse to submit to an evaluation, and the procedures for submitting an evaluation as evidence in any hearing regarding the issuance or renewal of the nurse's or applicant's license.
(g) Prohibits a nurse or applicant, if a nurse or applicant refuses to consent to the evaluation under Subsection (f), from introducing an evaluation into evidence at a hearing to determine the nurse or applicant's right to be issued or retain a nursing license unless the nurse or applicant performs certain actions.
(h) Requires BON to establish by rule the qualifications for a licensed practitioner to conduct an evaluation under this section. Requires BON to maintain a list of qualified practitioners. Authorizes BON to solicit qualified practitioners located throughout the state to be on the list.
(i) Requires the nurse or applicant to pay the costs of an evaluation conducted under this section.
(j) Provides that the results of an evaluation under this section are confidential and not subject to disclosure under Chapter 552, Government Code; and not subject to disclosure by discovery, subpoena, or other means of legal compulsion for release to anyone, except that the results are authorized to be introduced as evidence in a proceeding before BON or a hearing conducted by SOAH under this chapter, or included in the findings of fact and conclusions of law in the final board order.
(k) Requires that the evaluation be expunged from BON's records if BON determines there is insufficient evidence to bring action against a person based on the results of any evaluation under this section.
(l) Requires BON to adopt guidelines for requiring or requesting a nurse or applicant to submit to an evaluation under this section.
(m) Provides that the authority granted to BON under this section is in addition to BON's authority to make licensing decisions under this chapter.
SECTION 9. Amends Sections 301.453(a) and (b), Occupations Code, as follows:
(a) Requires BON, if BON determines that a person has committed an act listed in Section 301.452(b) (relating to a person subject to denial of license or to disciplinary action for certain reasons), to enter an order imposing certain actions, including suspension of the person's license, rather than suspension of the person's license for a period not to exceed five years.
(b) Authorizes BON, in addition to or instead of an action under Subsection (a), by order to require the person to perform certain actions, including a program of remedial education.
SECTION 10. Amends Section 301.4535, Occupations Code, by adding Subsection (a-1) and amending Subsection (b), as follows:
(a-1) Provides that an applicant or nurse who is refused an initial license or renewal of a license or whose license is suspended under Subsection (a) (relating to the nurse or applicant having certain convictions) is not eligible for a probationary, stipulated, or otherwise encumbered license unless BON establishes by rule criteria that would permit the issuance or renewal of the license.
(b) Deletes existing text prohibiting BON, as appropriate, on final conviction or a plea of guilty or nolo contender for an offense listed in Subsection (a), from issuing a license to an applicant, and requiring BON to refuse to renew a license or revoke a license if the applicant or license holder did not previously disclose the conviction or plea and the fifth anniversary of the date the person successfully completed community supervision or parole has not occurred.
SECTION 11. Amends Subchapter J, Chapter 301, Occupations Code, by adding Section 301.4551, as follows:
Sec. 301.4551. TEMPORARY LICENSE SUSPENSION FOR DRUG OR ALCOHOL USE. Requires BON to temporarily suspend the license of a nurse as provided by Section 301.455 (Temporary License Suspension or Restriction) if the nurse is under a BON order prohibiting the use of alcohol or a drug or requiring the nurse to participate in a peer assistance program, and the nurse tests positive for alcohol or a prohibited drug, refuses to comply with a BON order to submit to a drug or alcohol test, or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to BON for noncompliance.
SECTION 12. Amends Section 301.458, Occupations Code, by amending Subsection (b) and adding Subsections (e), (f), and (g), as follows:
(b) Requires that a formal charge meet certain requirements, including identifying each factual allegation required to be specifically admitted or denied.
(e) Prohibits the nurse who is the subject of the charge from generally denying the factual allegations in responding to a formal charge. Requires the nurse to state in short and plain terms the nurse's defenses to each factual allegation in the charge and specifically admit or deny each factual allegation in the charge.
(f) Requires that a denial of a factual allegation fairly respond to the substance of the allegation. Requires a nurse who intends in good faith to deny only part of an allegation to admit the part that is true and deny the rest. Provides that if the nurse states the nurse is without knowledge or information sufficient to form a belief about the truth of a factual allegation, the statement has the effect of a denial. Provides that if a factual allegation to which a response is required is not denied as provided by this section, the allegation is considered to be admitted.
(g) Provides that a defense under Subsection (e) is an alternate set of facts or explanation of facts alleged by BON that, that if true, disproves the facts alleged by BON in the charge.
SECTION 13. Amends Section 301.468, Occupations Code, by amending Subsection (a) and adding Subsections (e) and (f), as follows:
(a) Requires a person subject to a probation order to conform to certain conditions BON sets as the terms of probation, including requiring the person to submit to random drug or alcohol tests in the manner prescribed by BON. Makes a nonsubstantive change.
(e) Provides that a hearing under this section is limited to a determination of whether the person violated the terms of the probation order under Subsection (a) and whether BON should continue, rescind, or modify the terms of the probation, including imposing an administrative penalty, or enter an order denying, suspending, or revoking the person's license.
(f) Provides that if one of the conditions of probation is the prohibition of using alcohol or a drug or participation in a peer assistance program, violation of that condition is established by a positive drug or alcohol test result, refusal to submit to a drug or alcohol test as required by BON, or a letter of noncompliance from the peer assistance program.
SECTION 14. Repealer: Section 301.202(b) (relating to the requirement that BON enter into a memorandum of understanding with each state agency that licenses health care facilities or agencies), Occupations Code.
SECTION 15. (a) Makes application of Section 301.4521, Occupations Code, as added by this Act, prospective.
(b) Makes application of Section 301.4551, Occupations Code, as added by this Act, and Section 301.468, Occupations Code, as amended by this Act, prospective.
(c) Makes application of Section 301.458, Occupations Code, as amended by this Act, prospective.
SECTION 16. Effective date: upon passage or September 1, 2009.