81R2734 YDB-D

By: Nelson S.B. No. 791

A BILL TO BE ENTITLED

AN ACT

relating to the certified nurse aide registry and the regulation of certified nurse aides by the Texas Board of Nursing.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 301.002, Occupations Code, is amended by adding Subdivision (6) to read as follows:

(6) "Certified nurse aide" means a person who holds a certificate of registration issued under this chapter as a certified nurse aide.

SECTION 2. Section 301.151, Occupations Code, is amended to read as follows:

Sec. 301.151. GENERAL RULEMAKING AUTHORITY. The board may adopt and enforce rules consistent with this chapter and necessary to:

(1) perform its duties and conduct proceedings before the board;

(2) regulate the practice of professional nursing and vocational nursing and the practice of certified nurse aides;

(3) establish standards of professional conduct for license and certificate holders under this chapter; [and]

(4) determine the scope of practice for certified nurse aides; and

(5) determine whether an act constitutes the practice of professional nursing or vocational nursing or the practice of certified nurse aides.

SECTION 3. Section 301.157, Occupations Code, is amended by adding Subsection (i) to read as follows:

(i) The board by rule shall:

(1) prescribe a program of study to qualify a person for an initial certificate of registration as a certified nurse aide; and

(2) approve training programs that meet the board's requirements for the program of study.

SECTION 4. Subchapter D, Chapter 301, Occupations Code, is amended by adding Section 301.1596 to read as follows:

Sec. 301.1596. CERTIFIED NURSE AIDE ADVISORY COMMITTEE. (a) The board shall establish a certified nurse aide advisory committee to advise the board on the regulation of certified nurse aides.

(b) The advisory committee consists of at least 13 members appointed by the executive director as follows:

(1) two nursing home representatives;

(2) two representatives from community colleges with certified nurse aide training programs in this state;

(3) one hospital representative;

(4) one home health industry representative;

(5) three certified nurse aides, two with not more than five years' experience as certified nurse aides and one with at least five years' experience as a certified nurse aide;

(6) two representatives of certified nurse aide training programs that are not conducted by a facility described by Section 250.001, Health and Safety Code, or a community college;

(7) one registered nurse with at least two years' experience in training certified nurse aides; and

(8) one licensed vocational nurse with at least two years' experience in working directly with certified nurse aides.

(c) The nurse aide advisory committee shall study and provide recommendations to the board in the manner required by the commissioner on:

(1) improving communication between nurses and certified nurse aides;

(2) clarifying the scope of practice of certified nurse aides;

(3) clarifying the professional relationship between nurses and certified nurse aides;

(4) improving the practice of certified nurse aides;

(5) improving the training for certified nurse aides to more adequately meet the state health care system's acute and long-term care demands;

(6) establishing the program of study and classroom hours required for successful completion of a certified nurse aide training program;

(7) listing the subjects to be included in the training program curriculum to ensure the curriculum's continued relevancy in health care, including consideration of curriculum related to:

(A) successful strategies for dealing with patients with dementia or other difficult patients;

(B) time management;

(C) task prioritizing;

(D) interpersonal communication skills;

(E) cultural sensitivity;

(F) teamwork training;

(G) pyschosocial skills; and

(H) the aging process; and

(8) establishing the examination requirements for issuance of a certificate of registration as a certified nurse aide and for inclusion on the nurse aide registry.

(d) A member of the advisory committee is entitled to reimbursement for travel expenses incurred for service on the advisory committee as provided by the General Appropriations Act. A member may not receive any compensation for that service.

(e) The advisory committee shall meet regularly as necessary at the call of the presiding officer of the advisory committee or at the call of the executive director.

(f) The board shall provide administrative support for the advisory committee.

(g) Chapter 2110, Government Code, does not apply to the advisory committee established under this section.

SECTION 5. Subchapter D, Chapter 301, Occupations Code, is amended by adding Section 301.168 to read as follows:

Sec. 301.168. INTERAGENCY CONTRACT. (a) The board shall enter into an interagency contract with the Health and Human Services Commission and the Department of Aging and Disability Services under which the board shall administer and maintain the nurse aide registry established under Chapter 250, Health and Safety Code.

(b) The interagency contract must provide that:

(1) the Department of Aging and Disability Services has oversight authority over the nurse aide registry established under Chapter 250, Health and Safety Code;

(2) the department is the only state agency authorized to place findings of abuse, neglect, or exploitation in the registry as prescribed by federal law;

(3) the board shall administer and maintain the daily operation of the registry and receive the necessary federal funding from the department to reimburse the board for the duties performed by the board; and

(4) the department is responsible for reimbursement provided to nursing home providers for the cost of certified nurse aide training at the provider's facilities.

SECTION 6. Chapter 301, Occupations Code, is amended by adding Subchapter F-1 to read as follows:

SUBCHAPTER F-1. NURSE AIDES: REGISTRATION AND REGISTRATION

RENEWAL REQUIREMENTS

Sec. 301.281. CERTIFICATE OF REGISTRATION REQUIRED. (a) A person may not engage in practice as a certified nurse aide or hold out to the public that the person is a certified nurse aide or is included on the nurse aide registry under Chapter 250, Health and Safety Code, unless the person holds a certificate of registration as a certified nurse aide under this chapter and is included on the nurse aide registry under Chapter 250.

(b) The board, in consultation with the nurse aide advisory committee established under Section 301.1596, by rule shall:

(1) define the scope of practice of a certified nurse aide; and

(2) establish the qualifications for holding a certificate of registration as a certified nurse aide and for inclusion on the nurse aide registry.

(c) The qualifications established by the board must require a person applying to hold a certificate of registration as a certified nurse aide and to be included on the nurse aide registry to successfully complete:

(1) a board-approved training program that consists of not less than 120 hours and not more than 359 hours of course work as specified by board rule; and

(2) a competency examination on completion of the training program.

Sec. 301.282. APPLICATION. Each person applying for a certified nurse aide certificate of registration and for inclusion on the nurse aide registry must submit to the board a sworn application that demonstrates the applicant's qualifications under this chapter, accompanied by evidence that the applicant:

(1) has good professional character;

(2) has successfully completed a training program approved by the board; and

(3) has passed the examination approved by the board.

Sec. 301.283. ISSUANCE AND INCLUSION; FEE. (a) The board shall issue a certificate of registration as a certified nurse aide to each qualified person who applies to the board on the form prescribed by the board and include the person on the nurse aide registry.

(b) The board may charge a fee for the issuance of a copy of a certificate of registration.

Sec. 301.284. TERM. (a) A certificate of registration as a certified nurse aide issued under this subchapter is valid for two years. The board shall include the expiration date on each certificate of registration issued under this subchapter.

(b) Inclusion on the nurse aide registry is valid until expiration of the certificate of registration.

Sec. 301.285. RENEWAL. (a) A person may renew the person's certificate of registration as a certified nurse aide and renew inclusion on the nurse aide registry by:

(1) submitting a renewal application to the board on the form prescribed by the board before the registration expires;

(2) providing proof that the person has successfully completed during the preceding two years the continuing education hours required by Subsection (b); and

(3) complying with any other renewal requirements adopted by the board.

(b) A person who is registered as a certified nurse aide and who is included on the nurse aide registry shall annually in accordance with board rules complete at least 12 hours of continuing education.

(c) At least 30 days before the expiration of the person's certificate of registration, the board shall send written notice of the impending certificate expiration to the person at the person's last known address according to the records of the board.

SECTION 7. Section 301.407(b), Occupations Code, is amended to read as follows:

(b) Unless expressly prohibited by state or federal law, a state agency that has reason to believe that a nurse or nurse aide has engaged in conduct subject to reporting shall report the nurse or nurse aide in writing to the board or to a nursing peer review committee under Chapter 303.

SECTION 8. Section 301.451, Occupations Code, is amended to read as follows:

Sec. 301.451. CERTAIN PROHIBITED PRACTICES. A person may not:

(1) sell, fraudulently obtain, or fraudulently furnish a nursing diploma, license, certificate, renewal license or certificate, or record;

(2) assist another person in selling, fraudulently obtaining, or fraudulently furnishing a nursing diploma, license, certificate, renewal license or certificate, or record;

(3) practice nursing or practice as a nurse aide under a diploma, license, certificate, or record that was:

(A) obtained unlawfully or fraudulently; or

(B) signed or issued unlawfully or under false representation; or

(4) practice nursing or practice as a nurse aide in a period in which the person's license or certificate is suspended or revoked.

SECTION 9. Section 301.452(b), Occupations Code, is amended to read as follows:

(b) A person is subject to denial of a license or certificate or to disciplinary action under this subchapter for:

(1) a violation of this chapter, a rule or regulation not inconsistent with this chapter, or an order issued under this chapter;

(2) fraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing or a nurse aide certificate;

(3) a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony or for a misdemeanor involving moral turpitude;

(4) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude;

(5) use of a nursing license, diploma, or permit, a nurse aide certificate, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered;

(6) impersonating or acting as a proxy for another person in the licensing examination required under Section 301.253 or 301.255;

(7) directly or indirectly aiding or abetting an unlicensed or uncertified person in connection with the unauthorized practice of nursing or unauthorized practice as a nurse aide;

(8) revocation, suspension, or denial of, or any other action relating to, the person's license, certificate, or privilege to practice nursing or to practice as a nurse aide in another jurisdiction;

(9) intemperate use of alcohol or drugs that the board determines endangers or could endanger a patient;

(10) unprofessional or dishonorable conduct that, in the board's opinion, is likely to deceive, defraud, or injure a patient or the public;

(11) adjudication of mental incompetency;

(12) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or

(13) failure to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the board's opinion, exposes a patient or other person unnecessarily to risk of harm.

SECTION 10. Section 301.453, Occupations Code, is amended to read as follows:

Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. (a) If the board determines that a person has committed an act listed in Section 301.452(b), the board shall enter an order imposing one or more of the following:

(1) denial of the person's application for a license or certificate, license or certificate renewal, or temporary permit;

(2) issuance of a written warning;

(3) administration of a public reprimand;

(4) limitation or restriction of the person's license or certificate, including:

(A) limiting to or excluding from the person's practice one or more specified activities of nursing or as a nurse aide; or

(B) stipulating periodic board review;

(5) suspension of the person's license or certificate for a period not to exceed five years;

(6) revocation of the person's license or certificate; or

(7) assessment of a fine.

(b) In addition to or instead of an action under Subsection (a), the board, by order, may require the person to:

(1) submit to care, counseling, or treatment by a health provider designated by the board as a condition for the issuance or renewal of a license or certificate;

(2) participate in a program of education or counseling prescribed by the board;

(3) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the board; or

(4) perform public service the board considers appropriate.

(c) The board may probate any penalty imposed on a nurse or nurse aide and may accept the voluntary surrender of a license or certificate. The board may not reinstate a surrendered license or certificate unless it determines that the person is competent to resume practice.

(d) If the board suspends, revokes, or accepts surrender of a license or certificate, the board may impose conditions for reinstatement that the person must satisfy before the board may issue an unrestricted license or certificate.

SECTION 11. Section 301.4531(c), Occupations Code, is amended to read as follows:

(c) In the case of a person described by:

(1) Subsection (b)(1)(A), the board shall consider taking a more severe disciplinary action, including revocation of the person's license or certificate, than the disciplinary action that would be taken for a single violation; and

(2) Subsection (b)(1)(B), the board shall consider taking a more severe disciplinary action, including revocation of the person's license or certificate, than the disciplinary action that would be taken for a person who has not previously been the subject of disciplinary action by the board.

SECTION 12. Section 301.4535, Occupations Code, is amended to read as follows:

Sec. 301.4535. REQUIRED SUSPENSION, REVOCATION, OR REFUSAL OF LICENSE OR CERTIFICATE FOR CERTAIN OFFENSES. (a) The board shall suspend a nurse's license or a nurse aide's certificate or refuse to issue a license or certificate to an applicant on proof that the nurse, nurse aide, or applicant has been initially convicted of:

(1) murder under Section 19.02, Penal Code, capital murder under Section 19.03, Penal Code, or manslaughter under Section 19.04, Penal Code;

(2) kidnapping or unlawful restraint under Chapter 20, Penal Code, and the offense was punished as a felony or state jail felony;

(3) sexual assault under Section 22.011, Penal Code;

(4) aggravated sexual assault under Section 22.021, Penal Code;

(5) continuous sexual abuse of young child or children under Section 21.02, Penal Code, or indecency with a child under Section 21.11, Penal Code;

(6) aggravated assault under Section 22.02, Penal Code;

(7) intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual under Section 22.04, Penal Code;

(8) intentionally, knowingly, or recklessly abandoning or endangering a child under Section 22.041, Penal Code;

(9) aiding suicide under Section 22.08, Penal Code, and the offense was punished as a state jail felony;

(10) an offense under Section 25.07, Penal Code, punished as a felony;

(11) an offense under Section 25.071, Penal Code, punished as a felony;

(12) an agreement to abduct a child from custody under Section 25.031, Penal Code;

(13) the sale or purchase of a child under Section 25.08, Penal Code;

(14) robbery under Section 29.02, Penal Code;

(15) aggravated robbery under Section 29.03, Penal Code;

(16) an offense for which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure; or

(17) an offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.

(b) On final conviction or a plea of guilty or nolo contendere for an offense listed in Subsection (a), the board, as appropriate, may not issue a license or certificate to an applicant, shall refuse to renew a license or certificate, or shall revoke a license or certificate if the applicant or license or certificate 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.

(c) A person is not eligible for an initial license or certificate or for reinstatement or endorsement of a license to practice nursing or a certificate as a nurse aide in this state before the fifth anniversary of the date the person successfully completed and was dismissed from community supervision or parole for an offense described by Subsection (a).

SECTION 13. Sections 301.454(a), (c), and (e), Occupations Code, are amended to read as follows:

(a) Except in the case of a temporary suspension authorized under Section 301.455 or an action taken in accordance with an agreement between the board and a license or certificate holder, the board may not initiate a disciplinary action relating to a license or certificate unless:

(1) the board has served notice to the license or certificate holder of the facts or conduct alleged to warrant the intended action; and

(2) the license or certificate holder has been given an opportunity, in writing or through an informal meeting, to show compliance with all requirements of law for the retention of the license or certificate.

(c) A person is entitled to a hearing conducted by the State Office of Administrative Hearings if the board proposes to:

(1) refuse to admit the person to examination;

(2) refuse to issue a license, certificate, or temporary permit;

(3) refuse to renew a license or certificate; or

(4) suspend or revoke the person's license, certificate, or permit.

(e) Notwithstanding Subsection (a), a person is not entitled to a hearing on a refusal to renew a license or certificate if the person:

(1) fails to submit a renewal application; or

(2) submits an application that:

(A) is incomplete;

(B) shows on its face that the person does not meet the renewal requirements; or

(C) is not accompanied by the correct fee.

SECTION 14. The heading of Section 301.455, Occupations Code, is amended to read as follows:

Sec. 301.455. TEMPORARY LICENSE OR CERTIFICATE SUSPENSION OR RESTRICTION.

SECTION 15. Sections 301.455(a) and (b), Occupations Code, are amended to read as follows:

(a) The license of a nurse or the certificate of a nurse aide shall be temporarily suspended or restricted on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the nurse or nurse aide would constitute a continuing and imminent threat to the public welfare.

(b) A license or certificate may be temporarily suspended or restricted under this section without notice or hearing on the complaint if:

(1) institution of proceedings for a hearing before the State Office of Administrative Hearings is initiated simultaneously with the temporary suspension or determination to restrict; and

(2) a hearing is held as soon as possible under this chapter and Chapter 2001, Government Code.

SECTION 16. The heading of Section 301.457, Occupations Code, is amended to read as follows:

Sec. 301.457. COMPLAINT AND INVESTIGATION RELATED TO NURSES.

SECTION 17. Subchapter J, Chapter 301, Occupations Code, is amended by adding Section 301.4571 to read as follows:

Sec. 301.4571. COMPLAINT AND INVESTIGATION RELATED TO NURSE AIDES. (a) The board or any person may initiate a proceeding under this subchapter by filing with the board a complaint against a nurse aide. The complaint must be in writing and signed by the complainant.

(b) Except as otherwise provided by this section, the board or a person authorized by the board shall conduct each investigation. Each complaint against a nurse aide that requires a determination of competency shall be reviewed by a board member, consultant, or employee with a nursing background the board considers sufficient.

(c) On the filing of a complaint, the board:

(1) may conduct a preliminary investigation into the identity of the nurse aide named or described in the complaint;

(2) shall make a timely and appropriate preliminary investigation of the complaint; and

(3) may issue a warning or reprimand to the nurse aide.

(d) After any preliminary investigation to determine the identity of the subject of the complaint, unless it would jeopardize an investigation, the board shall notify the nurse aide that a complaint has been filed and the nature of the complaint. If the investigation reveals probable cause to take further disciplinary action, the board shall either attempt an informal disposition of the complaint or file a formal charge against the nurse aide stating the provision of this chapter or board rule that is alleged to have been violated and a brief description of each act or omission that constitutes the violation.

(e) The board shall conduct an investigation of the complaint to determine:

(1) whether the nurse aide's continued practice poses a risk of harm to clients or other persons; and

(2) whether probable cause exists that a nurse aide committed an act listed in Section 301.452(b) or that violates other law.

(f) In making a determination under Subsection (e), the board shall review the evidence to determine the extent to which a deficiency in care by the nurse aide was the result of deficiencies in the nurse aide's judgment, knowledge, training, or skill rather than other factors beyond the nurse aide's control. A determination that a deficiency in care is attributable to a nurse aide must be based on the extent to which the nurse aide's conduct was the result of a deficiency in the nurse aide's judgment, knowledge, training, or skill.

(g) If the board determines after investigating a complaint under Subsection (e) that there is reason to believe that a nurse aide's deficiency in care was the result of a factor beyond the nurse aide's control, the board shall report that determination to the patient safety committee at the facility where the nurse aide's deficiency in care occurred or, if the facility does not have a patient safety committee, to the chief nursing officer.

(h) The board and the Department of Aging and Disability Services shall share investigation information, including files, reports, witness lists, findings, and any other pertinent information, related to the investigation of a nurse aide by the board or department.

SECTION 18. Sections 301.458(a) and (c), Occupations Code, are amended to read as follows:

(a) Unless there is an agreed disposition of the complaint under Section 301.463, and if probable cause is found under Section 301.457(e)(2) or Section 301.4571(e)(2), the board or the board's authorized representative shall initiate proceedings by filing formal charges against the nurse or nurse aide.

(c) A copy of the formal charge shall be served on the nurse or nurse aide, or on the nurse's or nurse aide's counsel of record.

SECTION 19. Section 301.459(b), Occupations Code, is amended to read as follows:

(b) In any hearing under this section, a nurse or nurse aide is entitled to appear in person or by counsel.

SECTION 20. Section 301.460(a), Occupations Code, is amended to read as follows:

(a) Except for good cause shown for delay and subject to any other privilege or restriction set forth by statute, rule, or legal precedent, the board shall, not later than the 30th day after the date the board receives a written request from a license or certificate holder who is the subject of a formal charge filed under Section 301.458 or from the license or certificate holder's counsel of record, provide the license or certificate holder with access to:

(1) all known exculpatory information in the board's possession; and

(2) information in the board's possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint.

SECTION 21. Section 301.462, Occupations Code, is amended to read as follows:

Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE OR CERTIFICATE. (a) The board may revoke a nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the board and executes a sworn statement that the nurse does not desire to be licensed.

(b) The board may revoke a nurse aide's certificate without formal charges, notice, or opportunity of hearing if the nurse aide voluntarily surrenders the nurse aide's certificate to the board and executes a sworn statement that the nurse aide does not desire to be certified.

SECTION 22. Section 301.464(b), Occupations Code, is amended to read as follows:

(b) Rules adopted under this section must:

(1) provide the complainant and the license or certificate holder an opportunity to be heard; and

(2) require the presence of a representative of the board's legal staff or of the attorney general to advise the board or the board's employees.

SECTION 23. Section 301.466, Occupations Code, is amended to read as follows:

Sec. 301.466. CONFIDENTIALITY. (a) A complaint and investigation concerning a nurse or nurse aide 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 or certificate holder discipline.

(b) Notwithstanding Subsection (a), information regarding a complaint and an investigation may be disclosed to:

(1) a person involved with the board in a disciplinary action against the nurse or nurse aide;

(2) a nursing licensing, certifying, 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 nurse or nurse aide 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 24. Sections 301.467(a) and (b), Occupations Code, are amended to read as follows:

(a) On application, the board may reinstate:

(1) a license to practice professional nursing or vocational nursing to a person whose license has been revoked, suspended, or surrendered; or

(2) a certificate of a nurse aide to a person whose certificate has been revoked, suspended, or surrendered.

(b) An application to reinstate a revoked license or certificate:

(1) may not be made before the first anniversary of the date of the revocation; and

(2) must be made in the manner and form the board requires.

SECTION 25. Section 301.468, Occupations Code, is amended by amending Subsections (a) and (c) and adding Subsections (a-1) and (a-2) to read as follows:

(a) The board may determine that an order denying a license or certificate application or suspending a license or certificate be probated.

(a-1) A person subject to a probation order under Subsection (a) related to a license shall conform to each condition the board sets as the terms of probation, including a condition:

(1) limiting the practice of the person to, or excluding, one or more specified activities of professional nursing or vocational nursing; or

(2) requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the board.

(a-2) A person subject to a probation order under Subsection (a) related to a certificate shall conform to each condition the board sets as the terms of probation, including a condition:

(1) limiting the practice of the person to, or excluding, one or more specified activities performed by nurse aides; or

(2) requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the board.

(c) At any time while the person remains subject to the probation order, the board may hold a hearing and rescind the probation and enforce the board's original action in denying or suspending the license or certificate. The hearing shall be called by the presiding officer of the board, who shall issue a notice to be served on the person or the person's counsel not later than the 20th day before the date scheduled for the hearing that:

(1) sets the time and place for the hearing; and

(2) contains the charges or complaints against the probationer.

SECTION 26. Section 301.469, Occupations Code, is amended to read as follows:

Sec. 301.469. NOTICE OF FINAL ACTION. If the board takes a final disciplinary action, including a warning or reprimand, against a nurse or nurse aide under this subchapter, the board shall immediately send a copy of the board's final order to the nurse or nurse aide and to the last known employer of the nurse or nurse aide.

SECTION 27. Section 301.470, Occupations Code, is amended to read as follows:

Sec. 301.470. REFUND. (a) Subject to Subsection (b), the board may order a license or certificate holder to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter.

(b) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to a nurse or nurse aide for a service regulated by this chapter or the actual amount stolen or defrauded from a patient by the nurse or nurse aide. The board may not require payment of other damages or estimate harm in a refund order.

SECTION 28. Section 301.471, Occupations Code, is amended by adding Subsection (a-1) and amending Subsection (b) to read as follows:

(a-1) If it appears to the board that a person who is not certified as a nurse aide under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of a nurse aide and the board determines that the unauthorized activity constitutes a clear, imminent, or continuing threat to the public health and safety, the board may:

(1) issue an emergency cease and desist order prohibiting the person from engaging in the activity; and

(2) report the activity to a local law enforcement agency or the attorney general for prosecution.

(b) An order issued under Subsection (a) or (a-1) must:

(1) be delivered on issuance to the person affected by the order by personal delivery or registered or certified mail, return receipt requested, to the person's last known address;

(2) state the acts or practices alleged to be an unauthorized activity and require the person immediately to cease and desist from the unauthorized activity; and

(3) contain a notice that a request for hearing may be filed under this section.

SECTION 29. Section 301.552, Occupations Code, is amended to read as follows:

Sec. 301.552. MONITORING OF LICENSE OR CERTIFICATE HOLDER. The board by rule shall develop a system for monitoring the compliance of license and certificate holders with the requirements of this chapter. Rules adopted under this section must include procedures to:

(1) monitor for compliance a license or certificate holder who is ordered by the board to perform certain acts; and

(2) identify and monitor each license or certificate holder who represents a risk to the public.

SECTION 30. Section 250.001, Health and Safety Code, is amended by amending Subdivisions (1) and (3) and adding Subdivision (6) to read as follows:

(1) "Nurse aide registry" means a list of certified nurse aides maintained and administered by the Texas Board of Nursing as provided by Chapter 301, Occupations Code, under the oversight of the [Texas] Department of Aging and Disability [Human] Services and maintained in compliance with [of nurse aides under] the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203).

(3) "Facility" means:

(A) a nursing home, custodial care home, or other institution licensed by the department [Texas Department of Human Services] under Chapter 242;

(B) an assisted living facility licensed by the department [Texas Department of Human Services] under Chapter 247;

(C) a home and community support services agency licensed under Chapter 142;

(D) an adult day care facility licensed by the department [Texas Department of Human Services] under Chapter 103, Human Resources Code;

(E) a facility for persons with mental retardation licensed under Chapter 252;

(F) an adult foster care provider that contracts with the department [Texas Department of Human Services];

(G) a facility that provides mental health services and that is operated by or contracts with the [Texas] Department of State [Mental] Health Services [and Mental Retardation];

(H) a local mental health or mental retardation authority designated under Section 533.035; or

(I) a person exempt from licensing under Section 142.003(a)(19).

(6) "Department" means the Department of Aging and Disability Services.

SECTION 31. Chapter 250, Health and Safety Code, is amended by adding Section 250.0011 to read as follows:

Sec. 250.0011. NURSE AIDE REGISTRY. (a) The department shall establish a registry of certified nurse aides.

(b) The department shall oversee the nurse aide registry administered and maintained by the Texas Board of Nursing under Chapter 301, Occupations Code, and under the interagency contract between the department, the Health and Human Services Commission, and the board.

(c) The department shall place any finding of abuse, neglect, or exploitation by a certified nurse aide in the registry and in the employee misconduct registry maintained under Chapter 253.

SECTION 32. (a) Not later than October 1, 2009, the executive director of the Texas Board of Nursing shall appoint the members to the nurse aide advisory committee established by Section 301.1596, Occupations Code, as added by this Act.

(b) Not later than January 1, 2010, the Texas Board of Nursing, the Health and Human Services Commission, and the Department of Aging and Disability Services shall enter an interagency contract as required by Section 301.168, Occupations Code, as added by this Act.

(c) Not later than May 1, 2010, the Texas Board of Nursing shall:

(1) establish the qualifications for issuance of a certificate of registration and renewal of registration as a certified nurse aide; and

(2) adopt the rules necessary to implement the changes in law made by this Act.

(d) Not later than May 1, 2010, the executive commissioner of the Health and Human Services Commission shall adopt the rules necessary to implement the changes in law made by this Act.

SECTION 33. (a) A person listed as a certified nurse aide on the nurse aide registry under Chapter 250, Health and Safety Code, on the effective date of this Act is entitled to renew a certificate of registration as a certified nurse aide and renew inclusion on the nurse aide registry without fulfilling any additional educational training or examination requirements established by the Texas Board of Nursing under Chapter 301, Occupations Code, as amended by this Act, if the person has the other qualifications required by the board and Chapter 301 and if, before August 31, 2010, the person submits a renewal application as required by Chapter 301.

(b) Chapter 301, Occupations Code, as amended by this Act, applies only to the issuance of a certificate of registration or renewal of certificate of registration as a certified nurse aide and the inclusion or renewal of inclusion on the nurse aide registry under Chapter 250, Health and Safety Code, as amended by this Act, on or after September 1, 2010.

(c) Except as provided by Subsection (d), an application for issuance of a certificate of registration or renewal of certificate of registration as a certified nurse aide under Chapter 301, Occupations Code, as amended by this Act, and the inclusion or renewal of inclusion on the nurse aide registry under Chapter 250, Health and Safety Code, as amended by this Act, before the effective date of this Act is covered by the law in effect immediately before that date, and that law is continued in effect for that purpose.

(d) The Department of Aging and Disability Services shall include the expiration date, as required by Chapter 301, Occupations Code, as amended by this Act, on each certified nurse aide certificate of registration issued or renewed by the department on or after the effective date of this Act. A certified nurse aide certificate of registration issued by the department before the effective date of this Act expires on the earlier of the second anniversary of the date of issuance of the certificate or August 31, 2011.

SECTION 34. This Act takes effect September 1, 2009.