81R1484 BEF-D

By: Gallegos S.B. No. 1000

A BILL TO BE ENTITLED

AN ACT

relating to the practice of nursing; providing civil penalties.

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

ARTICLE 1. HOSPITAL PATIENT PROTECTION ACT

SECTION 1.01. Chapter 241, Health and Safety Code, is amended by adding Subchapter I to read as follows:

SUBCHAPTER I. HOSPITAL PATIENT PROTECTION

Sec. 241.251. SHORT TITLE. This subchapter may be cited as the Hospital Patient Protection Act.

Sec. 241.252. DEFINITIONS. In this subchapter:

(1) "Direct care registered nurse" means a nurse described by Section 301.651, Occupations Code.

(2) "Nurse" has the meaning assigned by Section 301.002, Occupations Code.

Sec. 241.253. HOSPITAL NURSING SERVICE REQUIRED. Each hospital shall maintain an organized nursing service. The hospital shall ensure that the nursing service:

(1) is available 24 hours each day;

(2) is adequately organized, equipped, and staffed to meet the needs of the hospital's patients; and

(3) meets the requirements of this subchapter and rules adopted by the department.

Sec. 241.254. ORGANIZATION OF NURSING SERVICE. (a) Each hospital's nursing service must be under the direction of a chief nursing officer. To qualify as chief nursing officer a person must be currently licensed to practice professional nursing under Chapter 301, Occupations Code, and must meet the requirements under rules adopted by the department and the Texas Board of Nursing.

(b) The chief nursing officer shall report directly to the senior manager of the hospital.

(c) A hospital's governing board shall adopt the following written policies:

(1) an unconditional assurance that the chief nursing officer has authority over the hospital's nursing service and is responsible and accountable for the operation of the nursing service;

(2) a complete description of the structure of the hospital nursing service, including any committees or nursing service units, and a designation of the person accountable for the operation of each part of the nursing service;

(3) a clear definition of the relationship between the hospital nursing service, hospital administration, hospital departments, and medical staff; and

(4) a requirement that a committee in the hospital may not consider an issue affecting nursing care unless the committee includes at least one direct care registered nurse as a full participating and voting member.

Sec. 241.255. COMPETENCY. A hospital may not assign a nurse or unlicensed nursing staff member to a nursing unit or clinical area unless:

(1) the hospital and the nurse or staff member determine under written guidelines developed by the hospital that the nurse or staff member is currently competent to provide care in the unit or area; and

(2) the nurse or staff member has received training with regard to the unit or area sufficient to allow the nurse or staff member to provide safe, therapeutic, and competent care to the patients in the unit or area.

Sec. 241.256. NURSE STAFFING. (a) Each hospital shall have on duty at all times:

(1) a sufficient number of direct care registered nurses to meet the requirements of this section; and

(2) any additional nurses and unlicensed nursing staff members required under the hospital's patient classification system.

(b) The chief nursing officer for a hospital or a person designated by the chief nursing officer shall develop a written nurse staffing plan for each shift in each patient care unit in the hospital, based on the validated output of the hospital's patient classification system. The plan shall specify the number of direct care registered nurses, other nurses, and unlicensed nursing staff members required to meet the needs of the patients in each patient care unit.

(c) Each hospital's nurse staffing plan must anticipate fluctuations in the number of patients in each patient care unit from routine causes, including admissions, discharges, and transfers. If an emergency declared by a federal, state, or local government causes a sudden change in the number of patients in a patient care unit, the hospital shall make an immediate and diligent effort to maintain the staffing levels required by this section and shall document that effort.

(d) The hospital may not designate the chief nursing officer as a charge nurse or as a direct care registered nurse in the nurse staffing plan.

(e) Each hospital shall develop a process by which any staff member can provide feedback and make a recommendation regarding the nurse staffing plan.

(f) A hospital may use an unlicensed nursing staff member to assist with simple nursing procedures. Each unlicensed nursing staff member must meet the competency requirements under Section 241.255. The hospital shall develop policies to define the responsibilities of an unlicensed nursing staff member and to limit the unlicensed nursing staff member's duties to tasks that do not require a license as a nurse.

(g) A hospital may not permit an unlicensed nursing staff member to perform any function that requires a substantial amount of scientific knowledge or technical skill, including:

(1) administration of medication;

(2) venipuncture or intravenous therapy;

(3) parenteral or tube feedings;

(4) moderately complex laboratory tests;

(5) invasive procedures, including inserting nasogastric tubes, inserting catheters, or tracheal suctioning;

(6) assessing a patient's condition; and

(7) educating a patient or a patient's family about the patient's health care problem or post-discharge care instructions.

(h) A hospital may use a nurse or an unlicensed nursing staff member from a temporary nursing agency only if:

(1) the nurse or unlicensed nursing staff member meets the competency requirements under Section 241.255;

(2) the hospital develops and follows a written procedure to train and evaluate a nurse or unlicensed nursing staff member from a temporary nursing agency; and

(3) the hospital evaluates a nurse or unlicensed nursing staff member from a temporary nursing agency at least as often as it evaluates a nurse or unlicensed nursing staff member who is permanently employed by the hospital.

(i) Each hospital shall verify and document that each nurse employed permanently or temporarily by the hospital is currently licensed.

Sec. 241.257. MINIMUM NURSE STAFFING LEVELS. (a) Each hospital shall have on duty at all times at least one direct care registered nurse for each:

(1) patient care unit in the hospital;

(2) operating room to serve as circulating nurse who is not otherwise assisting with the surgery;

(3) emergency department to triage a patient when the patient arrives in the emergency department;

(4) two patients in a critical care unit, including an intensive care unit, burn center, coronary care unit, or acute respiratory unit that provides care to patients who require:

(A) continuous monitoring;

(B) complex nursing interventions;

(C) direct observation by a direct care registered nurse;

(D) intensive assessment or evaluation; or

(E) specialized education for the patient or the patient's family or representative;

(5) two patients in a newborn intensive care unit;

(6) patient who is in active labor or has medical or obstetrical complications;

(7) patient who is undergoing cesarean delivery or for whom epidural anesthesia is being initiated;

(8) three antepartum patients who are not in active labor;

(9) three mother-baby couplets in a postpartum area of the perinatal service, not to exceed six patients for each direct care registered nurse in the event of a multiple birth;

(10) four mothers on a postpartum service for a direct care registered nurse assigned to mothers only;

(11) five well babies in a nursery;

(12) newborn who is undergoing resuscitation or who the direct care registered nurse determines is unstable;

(13) four recently born infants;

(14) three patients on a combined labor, delivery, and postpartum area of the perinatal service, consisting of one woman who is not in active labor and one postpartum mother-baby couplet;

(15) three patients in a pediatric service unit;

(16) two patients in a postanesthesia recovery unit;

(17) patient who is receiving conscious sedation;

(18) three patients in an emergency department when patients are receiving treatment;

(19) two patients in an emergency department who are eligible for admission to a critical care unit;

(20) trauma patient who has an injury that:

(A) requires a live-saving intervention; or

(B) poses an immediate threat to life or limb;

(21) three patients in a step-down unit who require:

(A) intermediate intensive care;

(B) direct monitoring by a direct care registered nurse;

(C) multiple assessments;

(D) a specialized intervention, evaluation, or education;

(E) invasive monitoring, telemetry, or mechanical ventilation, but not necessarily artificial life support; or

(F) more care than can be provided in a medical or surgical care unit;

(22) three patients in a telemetry unit who are receiving intermediate intensive care through electronic monitoring and observation of cardiac electrical signals;

(23) four patients in a medical or surgical care unit who require continuous care through direct observation and are receiving 24-hour inpatient general medical care or postsurgical care;

(24) four patients in a specialty care unit designed to provide care to a specific patient population or for a specific medical condition;

(25) four patients in a psychiatric unit;

(26) five patients in a rehabilitation unit designed to restore an ill or injured patient to self-sufficiency or gainful employment; and

(27) five patients in a skilled nursing facility designed to provide care to a patient on a long-term basis after being discharged from another hospital unit.

(b) Each hospital shall ensure that at least two direct care registered nurses are physically present in an emergency department at all times when a patient is present.

(c) A hospital may not at any time make any direct care registered nurse responsible for the care of a greater number of patients than the number specified in Subsection (a). A hospital may not average the number of patients and direct care registered nurses to determine compliance with Subsection (a).

(d) A hospital shall assign a patient to a unit or service based only on the health care needs of the patient and not to affect compliance with this section.

(e) The staffing requirements of this section apply to a unit or service of a hospital that provides services similar or identical to the services customarily provided by a unit or service specifically named in this section, regardless of the name given to the unit or service by the hospital.

Sec. 241.258. REQUIRED POSTING OF STAFFING PLAN; RECORDS. (a) A hospital shall ensure that the following information from the nurse staffing plan is posted for public view at the beginning of each shift in each patient care unit:

(1) the nurse staffing requirement for the unit as determined by the patient classification system;

(2) the actual nurse staffing provided on the unit; and

(3) any variance between the nurse staffing required by the patient classification system and the actual nurse staffing provided on the unit.

(b) A hospital shall maintain a record of each direct care registered nurse and licensed vocational nurse assigned to each patient for each shift.

(c) A hospital shall:

(1) retain the information required to be posted under Subsection (a) for a period of two years; and

(2) permanently retain the information required to be maintained under Subsection (b).

Sec. 241.259. HOSPITAL PATIENT CLASSIFICATION SYSTEM. (a) Each hospital shall develop and use a patient classification system to determine the number of nurses and unlicensed nursing staff members required for each shift in each patient care unit in the hospital. The patient classification system shall consider:

(1) the nursing care requirements of each patient in the unit, based on an assessment by the patient's direct care registered nurse of:

(A) the severity of the patient's illness or injury, including any secondary diagnosis;

(B) the patient's need for any specialized equipment or technology;

(C) the complexity of the clinical judgment required to assess, plan, implement, and evaluate the care plan for the patient;

(D) the patient's ability for self-care, including any motor, sensory, or cognitive deficit;

(E) the need for patient advocacy services provided by a direct care registered nurse; and

(F) the type of license required by the staff who will care for the patient;

(2) the patient care delivery system in the hospital;

(3) the physical layout of the nursing unit;

(4) generally accepted standards of nursing practice;

(5) unique characteristics of the hospital's patient population; and

(6) the ability of the direct care registered nursing staff to effectively provide assessment, nursing diagnosis, planning, and intervention to each patient.

(b) A hospital may not consider any fiscal or budget issue in developing and implementing the patient classification system.

(c) The patient classification system must include a method to validate the amount of nursing care needed for each category of patient.

(d) The hospital shall develop a mechanism to test the accuracy of the validation method in Subsection (c). This mechanism must address the amount of nursing care needed by patient category and by pattern of care delivery. The hospital shall test the accuracy of the validation method at least annually, and more frequently when warranted by changes in the patient population, skill mix of the staff, or patient care delivery model.

(e) The patient classification system must be fully transparent. The hospital shall submit the following information to the department:

(1) the methodology used by the system to predict nurse staffing requirements;

(2) each factor, assumption, and value used in the methodology;

(3) an explanation of the scientific and empirical basis for each assumption and value used in the methodology; and

(4) a report by a committee of direct care registered nurses who work in units covered by the system on the adequacy and accuracy of the information submitted by the hospital under this section.

(f) The committee under Subsection (e)(4) shall be appointed by:

(1) the chief nursing officer, if direct care registered nurses in the hospital are not represented under a collective bargaining agreement; or

(2) the collective bargaining agent, if direct care registered nurses in the hospital are represented under a collective bargaining agreement.

(g) The information required under Subsection (e) must be accompanied by a statement by a representative of the hospital that the information submitted by the hospital completely and accurately reflects the implementation of a valid patient classification system used to determine nurse staffing for each shift in each patient care unit in the hospital. The statement must be acknowledged under oath and contain an express acknowledgement that a false statement constitutes fraud and a violation of Section 37.10, Penal Code.

(h) The department shall make the information submitted under Subsection (e) available to the public.

(i) A hospital may not use any methodology, technology, system, device, or computer hardware or software to determine nurse staffing requirements that:

(1) considers any factor other than individual patient need;

(2) employs any method or uses any information to determine a patient's health care requirements other than an assessment performed by the patient's direct care registered nurse;

(3) purports to be proprietary; or

(4) restricts the complete transparency and disclosure of each operational element, methodology, formula, assumption, and value used by the system.

(j) Each hospital shall develop a process by which any interested staff member can provide feedback and make a recommendation regarding the patient classification system.

Sec. 241.260. REVIEW OF PATIENT CLASSIFICATION SYSTEM. (a) Each hospital shall submit its patient classification system to an annual review to determine whether the system accurately measures the health care needs of individual patients and predicts direct care registered nurse staffing requirements.

(b) The review shall be conducted by a committee, at least half of the members of which are direct care registered nurses who provide patient care in the units covered by the system. The chief nursing officer of the hospital shall appoint the members of the committee, except that if the direct care registered nurses in the hospital are represented under a collective bargaining agreement, the authorized collective bargaining agent shall appoint the direct care registered nurse members of the committee.

(c) The committee shall report its findings to the hospital. If the committee cannot agree on its findings, then the findings of a majority of the direct care registered nurse members of the committee shall be the committee's findings.

(d) The hospital shall implement any change to the patient classification system recommended by the committee to improve the accuracy of the system in measuring patient care needs not later than the 30th day after the date the hospital receives the recommendation.

Sec. 241.261. UNIFORM STATEWIDE PATIENT CLASSIFICATION SYSTEM. The executive commissioner of the Health and Human Services Commission and the Texas Board of Nursing shall jointly adopt rules implementing a uniform patient classification system that meets the requirements for a hospital patient classification system under Section 241.259 for use by each hospital in this state.

Sec. 241.262. UNIFORM STATEWIDE PATIENT CLASSIFICATION SYSTEM ADVISORY COMMITTEE. (a) In this section, "committee" means the Uniform Statewide Patient Classification System Advisory Committee.

(b) The committee consists of 35 members appointed jointly by the department and the Texas Board of Nursing. At least 18 members of the committee must be direct care registered nurses. The committee shall include technical and scientific experts who are capable of providing advice on the technical design and implementation of a patient classification system.

(c) A person is not eligible to serve on the committee if the person has an interest in the development, marketing, or purchasing of a private patient classification system product. A person who is nominated to be a member of the committee shall file with the department a sworn statement disclosing any interest the person has in a private patient classification system product.

(d) The committee shall advise the department on the design and implementation of a uniform patient classification system for use by each hospital in this state. Not later than the first anniversary of its initial meeting, the committee shall submit a report to the department and the Texas Board of Nursing with recommended standards for a patient classification system for use by each hospital in this state. The report must be sufficiently detailed to allow the department to review and implement the recommended standards. The department shall make the report available to the public.

(e) Chapter 2110, Government Code, does not apply to the size or composition of the committee.

(f) This section expires September 1, 2012.

SECTION 1.02. Sections 241.256(a)-(d), 241.257, 241.258, 241.259, and 241.260, Health and Safety Code, as added by this Act, do not apply before March 1, 2011, to a facility designated as a critical access hospital by the United States Department of Health and Human Services.

SECTION 1.03. The executive commissioner of the Health and Human Services Commission and the Texas Board of Nursing shall jointly adopt rules under Section 241.261, Health and Safety Code, as added by this Act, not later than March 1, 2011.

ARTICLE 2. OTHER AMENDMENTS TO HEALTH AND SAFETY CODE

SECTION 2.01. Section 161.0315, Health and Safety Code, is amended by adding Subsection (b-1) to read as follows:

(b-1) A medical peer review committee or medical committee may not conduct peer review of a direct care registered nurse or evaluate the license, employment, or practice of a direct care registered nurse, as that term is defined by Section 241.252.

SECTION 2.02. Section 241.026, Health and Safety Code, is amended by amending Subsections (a) and (c) and adding Subsection (g) to read as follows:

(a) The board shall adopt and enforce rules to further the purposes of this chapter. The rules at a minimum shall address:

(1) minimum requirements for staffing by physicians [and nurses];

(2) hospital services relating to patient care;

(3) fire prevention, safety, and sanitation requirements in hospitals;

(4) patient care and a patient bill of rights;

(5) compliance with other state and federal laws affecting the health, safety, and rights of hospital patients; [and]

(6) implementation and enforcement of the minimum requirements for staffing by nurses under Section 241.257; and

(7) implementation and enforcement of the minimum standards for competent practice by a nurse or unlicensed nursing staff member under Section 241.255 [compliance with nursing peer review under Subchapter I, Chapter 301, and Chapter 303, Occupations Code, and the rules of the Texas Board of Nursing relating to peer review].

(c) Except as provided by Subsection (g), on [Upon] the recommendation of the hospital licensing director and the council, the board by order may waive or modify the requirement of a particular provision of this Act or minimum standard adopted by board rule under this section to a particular general or special hospital if the board determines that the waiver or modification will facilitate the creation or operation of the hospital and that the waiver or modification is in the best interests of the individuals served or to be served by the hospital.

(g) The board may not waive or modify the requirements of Section 241.257 unless the board makes express written findings, supported by a written record and issued after public notice and a reasonable opportunity for public comment, that the waiver:

(1) will not jeopardize the health, safety, and well-being of patients affected by the waiver; and

(2) is needed to increase the operational efficiency of the hospital.

SECTION 2.03. Section 241.051(a), Health and Safety Code, is amended to read as follows:

(a) The department may make any inspection, survey, or investigation that it considers necessary. A representative of the department may enter the premises of a hospital at any [reasonable] time, with or without advance notice, to make an inspection, a survey, or an investigation to assure compliance with or prevent a violation of this chapter, the rules adopted under this chapter, an order or special order of the commissioner of health, a special license provision, a court order granting injunctive relief, or other enforcement procedures. The department shall maintain the confidentiality of hospital records as applicable under state or federal law.

SECTION 2.04. Section 241.052, Health and Safety Code, is amended to read as follows:

Sec. 241.052. COMPLIANCE WITH RULES AND STANDARDS. (a) A hospital that is in operation when an applicable rule or minimum standard is adopted under this chapter must be given a reasonable amount of additional time [period] within which to comply with the rule or standard if the hospital applies to the department for a waiver of the immediate application of the rule and the department determines that good cause exists to delay the application of the rule to the hospital.

(b) The period for compliance may not exceed six months, except that the department may extend the period for compliance in 30-day increments up to an additional [beyond] six months if the hospital sufficiently shows the department that it requires additional time to complete compliance with the rule or standard due to a circumstance beyond the hospital's control. The board may not extend the period for compliance with Section 241.257 beyond six months.

SECTION 2.05. Section 241.055, Health and Safety Code, is amended by amending Subsections (b) and (c) and by adding Subsections (b-1), (b-2), and (e) to read as follows:

(b) A hospital that violates Chapter 301, Occupations Code, Subsection (a) of this section, another provision of this chapter, or a rule adopted or enforced under this chapter is liable for a civil penalty of not more than $25,000 [$1,000] for each day of violation and for each act of violation. A hospital that violates this chapter or a rule or order adopted under this chapter relating to the provision of mental health, chemical dependency, or rehabilitation services is liable for a civil penalty of not more than $25,000 for each day of violation and for each act of violation.

(b-1) A hospital that violates Subchapter I is liable for a civil penalty of not more than $25,000 for each act of violation of that subchapter. The hospital is liable for an additional $10,000 for each shift in each patient care unit that has staffing levels in violation of Sections 241.256 and 241.257.

(b-2) A hospital that interferes with a nurse's duty and right of patient advocacy under Section 301.356, Occupations Code, is liable for a civil penalty of not more than $25,000 for each act of violation.

(c) In determining the amount of the penalty, the district court shall consider:

(1) the hospital's degree of culpability and history of prior offenses [previous violations];

(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(3) whether the health and safety of the public was threatened by the violation;

(4) any actual harm or injury caused or threatened by the violation, including any exposure of licensed personnel to:

(A) a breach of professional responsibility;

(B) potential license suspension or revocation; or

(C) malpractice liability; [the demonstrated good faith of the hospital; and]

(5) the amount necessary to deter future violations;

(6) the effort and expense incurred by a person presenting, providing essential information for, or assisting in the presentation of the claim; and

(7) any other matter that justice may require.

(e) The court may order any additional remedy, sanction, or corrective action that the court finds is necessary to remedy the violation and prevent future violations.

SECTION 2.06. Section 241.056, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) A person who is harmed by a violation under Section 241.028 or 241.055 or Subchapter I, and a person exposed to a risk of harm by a violation of Subchapter I, may petition a district court for appropriate injunctive relief.

(a-1) In addition, a nurse or other person who is harmed or exposed to a risk of harm by a violation of Subchapter I may file a suit to recover:

(1) the greater of:

(A) the actual damages incurred by the person, including damages for mental anguish, regardless of whether other injury is shown; or

(B) $25,000 per violation;

(2) exemplary damages;

(3) court costs; and

(4) reasonable attorney's fees.

SECTION 2.07. Section 241.059(a), Health and Safety Code, is amended to read as follows:

(a) The commissioner of health may assess an administrative penalty against a hospital that violates this chapter, a rule adopted pursuant to this chapter, a special license provision, an order or emergency order issued by the commissioner or the commissioner's designee, or another enforcement procedure permitted under this chapter. The commissioner shall assess an administrative penalty against a hospital that violates Section 166.004. The penalty under this section may be assessed in addition to any penalty assessed under Section 241.055.

SECTION 2.08. The executive commissioner of the Health and Human Services Commission shall adopt rules required under Section 241.026(a), Health and Safety Code, as added by this Act, not later than December 1, 2009.

ARTICLE 3. DIRECT CARE REGISTERED NURSES

SECTION 3.01. Chapter 301, Occupations Code, is amended by adding Subchapter N to read as follows:

SUBCHAPTER N. DIRECT CARE REGISTERED NURSE

Sec. 301.651. DIRECT CARE REGISTERED NURSE. (a) A person is a direct care registered nurse if the person:

(1) is currently licensed to practice professional nursing under this chapter;

(2) has documented clinical competence under Section 241.255, Health and Safety Code; and

(3) accepts a direct, hands-on patient care assignment.

(b) A manager or supervisor is not a direct care registered nurse.

Sec. 301.652. PRACTICE BY DIRECT CARE REGISTERED NURSE. (a) A direct care registered nurse shall:

(1) employ scientific knowledge and experience in the physical, social, and biological sciences;

(2) exercise independent judgment in applying the nursing process; and

(3) directly provide:

(A) continuous assessment of each patient's condition based on the direct care registered nurse's independent professional judgment;

(B) planning, clinical supervision, implementation, and evaluation of the nursing care provided to each patient, or assign these tasks under the guidelines prescribed by Subsection (b); and

(C) assessment, planning, implementation, and evaluation of patient education, including discharge instructions for each patient, or personally assign these tasks to another nurse or to an unlicensed nursing staff member.

(b) A direct care registered nurse may assign the implementation of nursing care to another licensed nurse or to an unlicensed nursing staff member if:

(1) the direct care registered nurse does not assign a task to a person who is not licensed to perform the task;

(2) the person to whom the task is assigned is prepared to and capable of competently performing the task;

(3) the assignment of the task is not prohibited by law; and

(4) the direct care registered nurse is able to effectively supervise the nursing care provided by the person assigned the task.

(c) A direct care registered nurse shall initiate the planning and delivery of patient care at the time a patient is admitted. The direct care registered nurse shall ensure that the planning and delivery of patient care reflects all elements of the nursing process, including assessment, planning, intervention, evaluation, and patient advocacy.

(d) A direct care registered nurse shall develop a nursing care plan for each patient through coordination with the patient, the patient's family, or the patient's representative, as appropriate, and other health care professionals involved in the care of the patient.

(e) A direct care registered nurse shall evaluate the effectiveness of each patient's nursing care plan through communication with the patient and other health care professionals and through assessment of the patient's physical condition, behavior, signs and symptoms of illness, and reactions to treatment. The direct care registered nurse shall modify the nursing care plan when necessary.

(f) A direct care registered nurse may not engage in the practice known as "charting by exception." The direct care registered nurse shall permanently record in each patient's medical record information about:

(1) the nursing diagnosis;

(2) the nursing plan;

(3) interventions made by the nurse;

(4) patient advocacy undertaken by the nurse;

(5) evaluations of the patient made by the nurse;

(6) the patient's initial assessment;

(7) reassessments of the patient;

(8) the patient's condition;

(9) observations of the patient; and

(10) data about the patient's care.

Sec. 301.653. PATIENT ASSESSMENT. (a) A nurse may not perform patient assessment unless the nurse is a direct care registered nurse. A nurse, other than a direct care registered nurse, or an unlicensed nursing staff member may assist a direct care registered nurse with data collection.

(b) Patient assessment includes:

(1) direct observation of the patient's:

(A) signs and symptoms of illness;

(B) reaction to treatment;

(C) behavior; and

(D) physical condition;

(2) interpretation of information obtained from the patient and others, including other health care professionals; and

(3) collection, analysis, synthesis, and evaluation of data about a patient.

Sec. 301.654. INDEPENDENT JUDGMENT. (a) A direct care registered nurse shall exercise independent judgment in the best interest of the patient.

(b) A direct care registered nurse may not allow a commercial or revenue generation motive of the hospital or of a person employing the direct care registered nurse to encumber the independent judgment of the direct care registered nurse.

Sec. 301.655. CLINICAL SUPERVISION. (a) A direct care registered nurse who assigns a nursing care task to another nurse or to an unlicensed nursing staff member shall:

(1) ensure that the person to be assigned the task possesses the necessary training, experience, and capability to competently and safely perform the task to be assigned; and

(2) effectively supervise the clinical functions and nursing care tasks performed by the person assigned the task.

(b) A direct care registered nurse shall provide clinical supervision in the best interest of the patient and may not allow a commercial or revenue generation motive of the hospital or a person employing the direct care registered nurse to encumber the performance of clinical supervision by the direct care registered nurse.

Sec. 301.656. PATIENT CARE ASSIGNMENTS. (a) A direct care registered nurse is always responsible for providing safe, therapeutic, and competent nursing care to each patient assigned to the direct care registered nurse.

(b) A direct care registered nurse may not accept a patient assignment unless the direct care registered nurse reasonably believes the direct care registered nurse has the knowledge, judgment, skills, and ability necessary to provide the care required by the patient. A direct care registered nurse may not accept a patient in any clinical unit or with any diagnosis, condition, prognosis, or other determinative characteristic of nursing care for which the direct care registered nurse does not reasonably believe the direct care registered nurse can provide clinically competent nursing care.

(c) The refusal by a direct care registered nurse to accept a patient care assignment under this section is an exercise of the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

Sec. 301.657. ACCEPTANCE OF ORDERS. (a) Before implementation, a direct care registered nurse must review each order for patient care services, including an order for the administration of medication, a therapeutic agent, treatment, disease prevention, or rehabilitative regimen, to determine if the order is:

(1) in the best interest of the patient;

(2) initiated by a person legally authorized to issue the order; and

(3) in accordance with the law.

(b) If a direct care registered nurse determines that an order does not meet the requirements of Subsection (a) or has doubt regarding the meaning of the order or the conformance of the order with the requirements of Subsection (a), the direct care registered nurse shall seek clarification from the person who initiated the order, the patient's physician, or another appropriate health care professional. The direct care registered nurse may not implement the order until the direct care registered nurse has obtained clarification sufficient to determine that the order meets the requirements of Subsection (a).

(c) If, after receiving clarification of an order under Subsection (b), a direct care registered nurse continues to believe that the requirements for implementation of the order under Subsection (a) have not been satisfied, the direct care registered nurse may refuse to implement the order on the basis that the order is not in the best interest of the patient.

(d) A direct care registered nurse who seeks clarification of an order under Subsection (b) or refuses to implement an order under Subsection (c) is exercising the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

Sec. 301.658. WHISTLE-BLOWER PROTECTION. (a) A direct care registered nurse may report to the hospital, an outside authority, or the public an action, policy, or condition created by a hospital or other person in the health care industry that the direct care registered nurse believes:

(1) violates the law;

(2) breaches professional ethics;

(3) impedes competent and safe nursing practice or patient care;

(4) contributes to an adverse patient outcome or incident;

(5) contributes to a sentinel or reportable event;

(6) is an issue that must be reported to satisfy the direct care registered nurse's duty and right of patient advocacy under Section 301.356; or

(7) is a valid argument in support of or against a hospital policy or practice relating to the delivery of nursing care.

(b) A person may not take an adverse personnel action or discriminate against a direct care registered nurse who makes a report authorized under Subsection (a).

(c) A direct care registered nurse who makes a report authorized under Subsection (a) is exercising the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

(d) This section does not authorize the disclosure of confidential patient information, unless the disclosure is:

(1) consented to by the patient;

(2) required by law; or

(3) provided in confidence to a government, regulatory, or accreditation agency as part of a complaint or investigation.

Sec. 301.659. COLLECTIVE PATIENT ADVOCACY. (a) Direct care registered nurses may work collectively to exercise the duty and right of patient advocacy.

(b) In collectively exercising the duty and right of patient advocacy, direct care registered nurses have the right to:

(1) self-organize;

(2) seek representation to engage in collective bargaining with their hospital employer;

(3) seek any form of mutual aid or protection; and

(4) form, join, or participate in:

(A) an independent hospital-based professional practice committee;

(B) a general or specialty registered nursing professional association;

(C) a patient advocacy organization; or

(D) a labor organization.

(c) A direct care registered nurse who engages in patient advocacy collectively with other direct care registered nurses is exercising the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

ARTICLE 4. OTHER AMENDMENTS TO OCCUPATIONS CODE

SECTION 4.01. Section 301.352, Occupations Code, is amended by amending Subsections (a) and (a-1) and adding Subsection (e) to read as follows:

(a) A person may not suspend, terminate, take an adverse personnel action against, or otherwise discipline or discriminate against a nurse who refuses to engage in an act or omission relating to patient care if the nurse reasonably believes the act or omission would:

(1) be harmful to the patient;

(2) not be in the best interest of the patient;

(3) constitute grounds for reporting the hospital to the Department of State Health Services under Section 301.402; or

(4) violate any provision of this chapter or a board rule [as provided by Subsection (a-1)].

(a-1) Subsection (a) applies only [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 of [that] the reason for refusing to engage in [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].

(e) A nurse who refuses to engage in an act or omission under this section is exercising the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

SECTION 4.02. Subchapter H, Chapter 301, Occupations Code, is amended by adding Section 301.356 to read as follows:

Sec. 301.356. DUTY AND RIGHT OF PATIENT ADVOCACY. (a) A nurse has the duty and the right to act as an advocate for each patient assigned to the nurse.

(b) As circumstances require, a nurse shall:

(1) take action to improve the care provided to the patient;

(2) try to change a decision or action that is not in the best interest of the patient; and

(3) give the patient the opportunity to make an informed decision about the care to be provided to the patient.

SECTION 4.03. Subchapter H, Chapter 301, Occupations Code, is amended by adding Section 301.357 to read as follows:

Sec. 301.357. CAUSE OF ACTION FOR INTERFERENCE WITH PATIENT ADVOCACY. (a) A person may not take an adverse personnel action or discriminate against a nurse who exercises the duty and right of patient advocacy under Section 301.356.

(b) A nurse may bring a cause of action against a person who violates Subsection (a) to recover:

(1) the greater of:

(A) the actual damages incurred by the nurse, including damages for mental anguish regardless of whether other injury is shown; or

(B) $10,000;

(2) exemplary damages;

(3) court costs; and

(4) reasonable attorney's fees.

(c) In addition to the amount recovered under Subsection (b), a nurse whose employment is suspended or terminated in violation of Subsection (a) is entitled to:

(1) reinstatement in the nurse's former position, or severance pay in an amount equal to three months of the nurse's most recent salary; and

(2) compensation for wages lost during the period of suspension or termination.

(d) A nurse who brings an action under this section has the burden of proving that:

(1) the nurse engaged in an act or omission that constituted an exercise of the duty and right of patient advocacy; and

(2) the nurse's exercise of the duty and right of patient advocacy was a substantial factor in the person's decision to take an adverse personnel action or discriminate against the nurse.

(e) There is a rebuttable presumption that a nurse's exercise of the duty and right of patient advocacy was a substantial factor in a person's decision to take an adverse personnel action or discriminate against the nurse if the person took the adverse personnel action or discriminated against the nurse on or before the 60th day after the date the nurse engaged in the act or omission constituting an exercise of the duty and right of patient advocacy.

(f) An action under this section may be brought in the district court of the county in which:

(1) the plaintiff resides;

(2) the plaintiff was employed by the defendant; or

(3) any defendant conducts business.

SECTION 4.04. Subchapter H, Chapter 301, Occupations Code, is amended by adding Section 301.358 to read as follows:

Sec. 301.358. FIDUCIARY DUTY. (a) A nurse owes a fiduciary duty to each patient assigned to the nurse to act exclusively in the best interest of the patient. A nurse may not be influenced in the provision of nursing care to the patient by:

(1) the nurse's own interests;

(2) the interests of any third party;

(3) the directives of any interested third party; or

(4) any motive other than the nurse's responsibility to provide safe and competent nursing care in the best interest and for the benefit of the patient.

(b) A nurse may refuse to engage in conduct that violates the nurse's fiduciary duty to a patient. A nurse who refuses to engage in conduct that violates the fiduciary duty owed to a patient is exercising the duty and right of patient advocacy under Section 301.356 and is entitled to the protections provided by Section 301.357.

SECTION 4.05. Sections 301.402(b) and (d), Occupations Code, are amended to read as follows:

(b) A nurse who provides or supervises the care of a patient in a hospital shall report to the Department of State Health Services [board] in the manner prescribed under Subsection (d) when [if] the nurse has reasonable cause to suspect that the hospital has policies or is engaging in practices that:

(1) interfere with the ability of a nurse to perform the duties of professional nursing [another nurse has engaged in conduct subject to reporting]; [or]

(2) discourage a nurse through intimidation or coercion from exercising the duty and right of patient advocacy under Section 301.356;

(3) violate a standard of safe, competent, and therapeutic nursing care established by law; or

(4) expose a patient to a substantial risk of harm [the ability of a nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency].

(d) A report by a nurse under Subsection (b) must:

(1) be written and signed; and

(2) include the following information:

(A) the name and address of the hospital;

(B) the name of the most senior manager of the hospital;

(C) the name of the chief nursing officer;

(D) a description of the policy or practice the nurse is reporting; [identity of the nurse or student] and

(E) any additional information required by the board.

SECTION 4.06. Section 301.411(a), Occupations Code, is amended to read as follows:

(a) A nurse [person] is not liable in a civil action for failure to file a report required by this subchapter.

SECTION 4.07. Section 301.412, Occupations Code, is amended to read as follows:

Sec. 301.412. REPORTING IMMUNITY. A nurse [person] who[, without malice,] makes a report required or authorized, or reasonably believed to be required or authorized, under this subchapter and a person who provides records, information, or assistance to the nurse making the report:

(1) is immune from civil liability based on:

(A) the act of making the report; and

(B) the contents of the report; and

(2) may not be subjected to other retaliatory action as a result of making the report.

SECTION 4.08. Section 301.413, Occupations Code, is amended by amending Subsections (a) through (e) and adding Subsection (b-1) 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 making [filing] a report or providing records, information, or assistance in support of 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 nurse [person] who[:

[(1)] reports, without malice, under this subchapter[; or

[(2) requests, in good faith, a nursing peer review determination under Section 303.005].

(b-1) A nurse reports with malice under Subsection (b) if, at the time the nurse makes the report, the nurse:

(1) knows the report is false; or

(2) has serious doubts about whether the report is true.

(c) A nurse [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;

(2) exemplary damages;

(3) court costs; and

(4) reasonable attorney's fees.

(d) In addition to the amount recovered under Subsection (c), a nurse [person] whose employment is suspended or terminated in violation of this section is entitled to:

(1) reinstatement in the nurse's [employee's] former position or severance pay in an amount equal to three months of the nurse's [employee's] most recent salary; and

(2) compensation for wages lost during the period of suspension or termination.

(e) A nurse [person] who brings an action under this section has the burden of proof. It is a rebuttable presumption that the nurse's [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 nurse [person] was suspended or terminated within 60 days after the date the report[, refusal, or request] was made; and

(2) the board, the commissioner of the Department of State Health Services, or a court determines that[:

[(A)] the report that is the subject of the cause of action was[:

[(i)] 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) 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].

SECTION 4.09. Section 301.452(b), Occupations Code, is amended to read as follows:

(b) A person is subject to denial of a license 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;

(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, 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 person in connection with the unauthorized practice of nursing;

(8) revocation, suspension, or denial of, or any other action relating to, the person's license or privilege to practice nursing 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; or

(14) failure to take an action that is reasonable for the nurse to take considering the nurse's position in the hospital to correct a policy or practice in the administration of nursing care in the hospital that:

(A) does not conform to a reasonable minimum standard of nursing practice and safe patient care;

(B) violates a law or accreditation standard; or

(C) exposes a patient to a substantial risk of harm.

SECTION 4.10. The following sections of the Occupations Code are repealed:

(1) Sections 301.352(b) and (f);

(2) Section 301.401;

(3) Sections 301.402(e) and (f);

(4) Section 301.4025;

(5) Section 301.403;

(6) Section 301.404;

(7) Section 301.405;

(8) Section 301.406;

(9) Section 301.407;

(10) Section 301.408;

(11) Section 301.409;

(12) Section 301.410;

(13) Section 301.4105;

(14) Section 301.4106;

(15) Section 301.411(b);

(16) Section 301.414;

(17) Section 301.415;

(18) Section 301.416;

(19) Section 301.417;

(20) Section 301.418; and

(21) Section 301.419.

SECTION 4.11. Chapter 303, Occupations Code, is repealed.

ARTICLE 5. CONFORMING AMENDMENTS

SECTION 5.01. Section 103.003(b), Labor Code, is amended to read as follows:

(b) An employer may not disclose information about a licensed nurse or licensed vocational nurse that relates to conduct that is protected under Section 301.352 [or 303.005], Occupations Code. The employer must provide an affected nurse an opportunity to submit a statement of reasonable length to the employer to establish the application of Section 301.352 [or 303.005], Occupations Code.

SECTION 5.02. Section 301.002(1-b), Occupations Code, is amended to read as follows:

(1-b) "Patient safety committee" means a committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety, including:

(A) the entity's medical staff composed of individuals licensed under Subtitle B; or

(B) a medical committee under Subchapter D, Chapter 161, Health and Safety Code [has the meaning assigned by Section 303.001].

SECTION 5.03. Section 301.160(i), Occupations Code, is amended to read as follows:

(i) Except as provided by this subsection, in developing or approving a pilot program under this section the board may exempt the program from rules adopted under this chapter. [Subchapter I and Chapter 303 apply to pilot programs, except that Sections 303.002(e), 303.003, and 303.008(b) do not apply to a pilot program using proactive peer review. The board may establish alternative criteria for nursing peer review committees conducting proactive peer review.]

SECTION 5.04. Section 301.1605(c), Occupations Code, is amended to read as follows:

(c) In approving a pilot program, the board may grant the program an exception to [the mandatory reporting requirements of Sections 301.401-301.409 or to] a rule adopted under this chapter [or Chapter 303] that relates to the practice of professional nursing, including education and reporting requirements for registered nurses. The board may not grant an exception to:

(1) the education requirements of this chapter unless the program includes alternate but substantially equivalent requirements; or

(2) [the mandatory] reporting requirements unless the program:

(A) is designed to evaluate the efficiency of alternative reporting methods; and

(B) provides consumers adequate protection from registered nurses whose continued practice is a threat to public safety.

SECTION 5.05. Section 301.1606(b), Occupations Code, is amended to read as follows:

(b) The board may grant a pilot program approved under this section an exception to [the mandatory reporting requirements of Sections 301.401-301.409 or to] a rule adopted under this chapter [or Chapter 303] that relates to the practice of professional nursing, including education and reporting requirements for registered nurses. If the board grants an exception, the board may require that the program:

(1) provide for the remediation of the deficiencies of a registered nurse who has knowledge or skill deficiencies that unless corrected may result in an unreasonable risk to public safety;

(2) provide for supervision of the nurse during remediation of deficiencies under Subdivision (1);

(3) require reporting to the board of a registered nurse:

(A) who fails to satisfactorily complete remediation, or who does not make satisfactory progress in remediation, under Subdivision (1);

(B) whose incompetence in the practice of professional nursing would pose a continued risk of harm to the public; or

(C) whose error contributed to a patient death or serious patient injury; or

(4) provide for a nursing peer review committee to review whether a registered nurse is appropriate for remediation under Subdivision (1).

ARTICLE 6. EFFECTIVE DATE

SECTION 6.01. (a) Except as provided by Subsections (b) and (c) of this section, this Act takes effect September 1, 2009.

(b) Section 241.254, Health and Safety Code, as added by this Act, takes effect January 1, 2010.

(c) Sections 241.256(a), 241.257, 241.258, 241.259, and 241.260, Health and Safety Code, as added by this Act, take effect March 1, 2010.