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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of nursing. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subdivision (2), Subsection (a), Section |
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301.160, Occupations Code, is amended to read as follows: |
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(2) "Targeted continuing nursing education" means |
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continuing education focusing on a skill that would likely benefit |
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a significant proportion of [registered] nurses in a particular |
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practice area. |
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SECTION 2. Subsections (b) and (j), Section 301.160, |
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Occupations Code, are amended to read as follows: |
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(b) The board may develop pilot programs to evaluate the |
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effectiveness of mechanisms, including proactive nursing peer |
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review and targeted continuing nursing education, for maintenance |
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of the clinical competency of a [registered] nurse in the nurse's |
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area of practice and the understanding by [registered] nurses of |
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the laws, including regulations, governing the practice of |
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[professional] nursing. |
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(j) The board shall issue an annual report regarding any |
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pilot programs developed or approved and a status report on those |
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programs, including preliminary or final findings concerning their |
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effectiveness. The board shall mail the report to statewide |
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associations of [registered] nurses and[, registered nurse] |
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educators[,] and employers of [registered] nurses that request a |
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copy. [The board shall issue a final report not later than
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September 1, 2000.] |
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SECTION 3. Subsections (a) and (c), Section 301.1605, |
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Occupations Code, are amended to read as follows: |
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(a) The board may approve and adopt rules regarding pilot |
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programs for innovative applications in the practice and regulation |
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of [professional] nursing. |
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(c) In approving a pilot program, the board may grant the |
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program an exception to the mandatory reporting requirements of |
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Sections 301.401-301.409 or to a rule adopted under this chapter or |
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Chapter 303 that relates to the practice of [professional] nursing, |
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including education and reporting requirements for [registered] |
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nurses. The board may not grant an exception to: |
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(1) the education requirements of this chapter unless |
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the program includes alternate but substantially equivalent |
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requirements; or |
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(2) the mandatory reporting requirements unless the |
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program: |
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(A) is designed to evaluate the efficiency of |
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alternative reporting methods; and |
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(B) provides consumers adequate protection from |
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[registered] nurses whose continued practice is a threat to public |
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safety. |
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SECTION 4. Subsections (a) and (b), Section 301.1606, |
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Occupations Code, are amended to read as follows: |
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(a) The [Before January 1, 2004, the] board may [shall] |
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solicit proposals for pilot programs designed to evaluate the |
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efficacy and effect on protection of the public of reporting |
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systems designed to encourage identification of system errors. |
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(b) The board may grant a pilot program approved under this |
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section an exception to the mandatory reporting requirements of |
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Sections 301.401-301.409 or to a rule adopted under this chapter or |
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Chapter 303 that relates to the practice of [professional] nursing, |
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including education and reporting requirements for [registered] |
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nurses. If the board grants an exception, the board may require |
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that the program: |
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(1) provide for the remediation of the deficiencies of |
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a [registered] nurse who has knowledge or skill deficiencies that |
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unless corrected may result in an unreasonable risk to public |
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safety; |
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(2) provide for supervision of the nurse during |
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remediation of deficiencies under Subdivision (1); |
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(3) require reporting to the board of a [registered] |
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nurse: |
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(A) who fails to satisfactorily complete |
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remediation, or who does not make satisfactory progress in |
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remediation, under Subdivision (1); |
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(B) whose incompetence in the practice of |
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[professional] nursing would pose a continued risk of harm to the |
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public; or |
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(C) whose error contributed to a patient death or |
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serious patient injury; or |
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(4) provide for a nursing peer review committee to |
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review whether a [registered] nurse is appropriate for remediation |
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under Subdivision (1). |
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SECTION 5. Subchapter E, Chapter 301, Occupations Code, is |
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amended by adding Sections 301.206 and 301.207 to read as follows: |
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Sec. 301.206. CONFIDENTIALITY OF INFORMATION COLLECTED FOR |
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EMERGENCY RELIEF PROGRAMS. (a) In this section, "emergency relief |
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program" means a program operated or sponsored by the federal |
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government, the state, or a nonprofit organization to provide |
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nurses to assist in providing health care to victims or potential |
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victims of a disaster or state or local emergency. |
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(b) A nurse's personal contact information, including |
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e-mail addresses, telephone numbers, and fax numbers, collected by |
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the board for use by an emergency relief program is: |
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(1) confidential and not subject to disclosure under |
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Chapter 552, Government Code; and |
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(2) not subject to disclosure, discovery, subpoena, or |
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other means of legal compulsion for release to anyone other than for |
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the purpose of contacting the nurse to assist in an emergency relief |
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program. |
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Sec. 301.207. CONFIDENTIALITY OF HEALTH INFORMATION |
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PROVIDED FOR LICENSURE. Information regarding a person's diagnosis |
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or treatment for a physical condition, mental condition, or |
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chemical dependency that the person submits to the board for a |
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petition for a declaratory order of eligibility for a license or for |
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an application for an initial license or a license renewal under |
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this chapter is confidential to the same extent information |
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collected on a nurse as part of an investigation of a complaint is |
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confidential under Section 301.466. |
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SECTION 6. Subsection (a), Section 301.257, Occupations |
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Code, is amended to read as follows: |
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(a) A person may petition the board for a declaratory order |
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as to the person's eligibility for a license under this chapter if |
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the person has reason to believe that the person is ineligible for |
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the license and: |
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(1) is enrolled or planning to enroll in an |
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educational program that prepares a person for an initial license |
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as a registered nurse or vocational nurse; or [and] |
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(2) is an applicant for a [has reason to believe that
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the person is ineligible for the] license. |
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SECTION 7. Subdivision (2), Section 301.401, Occupations |
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Code, is amended to read as follows: |
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(2) "Minor incident" means conduct by a nurse that |
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does not indicate that the nurse's continued practice poses a risk |
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of harm to a patient or another person. This term is synonymous |
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with "minor error" or "minor violation of this chapter or board |
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rule." |
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SECTION 8. Subchapter J, Chapter 301, Occupations Code, is |
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amended by adding Section 301.4521 to read as follows: |
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Sec. 301.4521. PHYSICAL AND PSYCHOLOGICAL EVALUATION. |
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(a) In this section: |
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(1) "Applicant" means: |
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(A) a petitioner for a declaratory order of |
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eligibility for a license; or |
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(B) an applicant for an initial license or |
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renewal of a license. |
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(2) "Evaluation" means a physical or psychological |
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evaluation conducted to determine a person's fitness to practice |
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nursing. |
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(b) The board may require a nurse or applicant to submit to |
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an evaluation only if the board has probable cause to believe that |
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the nurse or applicant is unable to practice nursing with |
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reasonable skill and safety to patients because of: |
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(1) physical impairment; |
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(2) mental impairment; or |
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(3) chemical dependency or abuse of drugs or alcohol. |
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(c) A demand for an evaluation under Subsection (b) must be |
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in writing and state: |
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(1) the reasons probable cause exists to require the |
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evaluation; and |
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(2) that refusal by the nurse or applicant to submit to |
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the evaluation will result in an administrative hearing to be held |
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to make a final determination of whether probable cause for the |
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evaluation exists. |
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(d) If the nurse or applicant refuses to submit to the |
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evaluation, the board shall schedule a hearing on the issue of |
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probable cause to be conducted by the State Office of |
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Administrative Hearings. The nurse or applicant must be notified |
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of the hearing by personal service or certified mail. The hearing |
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is limited to the issue of whether the board had probable cause to |
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require an evaluation. The nurse or applicant may present |
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testimony and other evidence at the hearing to show why the nurse or |
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applicant should not be required to submit to the evaluation. The |
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board has the burden of proving that probable cause exists. At the |
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conclusion of the hearing, the hearing officer shall enter an order |
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requiring the nurse or applicant to submit to the evaluation or an |
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order rescinding the board's demand for an evaluation. The order |
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may not be vacated or modified under Section 2001.058, Government |
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Code. |
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(e) If a nurse or applicant refuses to submit to an |
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evaluation after an order requiring the evaluation is entered under |
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Subsection (d), the board may: |
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(1) refuse to issue or renew a license; |
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(2) suspend a license; or |
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(3) issue an order limiting the license. |
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(f) The board may request a nurse or applicant to consent to |
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an evaluation by a practitioner approved by the board for a reason |
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other than a reason listed in Subsection (b). A request for an |
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evaluation under this subsection must be in writing and state: |
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(1) the reasons for the request; |
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(2) the type of evaluation requested; |
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(3) how the board may use the evaluation; |
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(4) that the nurse or applicant may refuse to submit to |
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an evaluation; and |
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(5) the procedures for submitting an evaluation as |
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evidence in any hearing regarding the issuance or renewal of the |
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nurse's or applicant's license. |
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(g) If a nurse or applicant refuses to consent to an |
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evaluation under Subsection (f), the nurse or applicant may not |
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introduce an evaluation into evidence at a hearing to determine the |
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nurse's or applicant's right to be issued or retain a nursing |
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license unless the nurse or applicant: |
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(1) not later than the 30th day before the date of the |
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hearing, notifies the board that an evaluation will be introduced |
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into evidence at the hearing; |
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(2) provides the board the results of that evaluation; |
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(3) informs the board of any other evaluations by any |
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other practitioners; and |
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(4) consents to an evaluation by a practitioner that |
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meets board standards established under Subsection (h). |
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(h) The board shall establish by rule the qualifications for |
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a licensed practitioner to conduct an evaluation under this |
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section. The board shall maintain a list of qualified |
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practitioners. The board may solicit qualified practitioners |
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located throughout the state to be on the list. |
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(i) A nurse or applicant shall pay the costs of an |
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evaluation conducted under this section. |
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(j) The results of an evaluation under this section are: |
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(1) confidential and not subject to disclosure under |
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Chapter 552, Government Code; and |
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(2) not subject to disclosure by discovery, subpoena, |
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or other means of legal compulsion for release to anyone, except |
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that the results may be: |
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(A) introduced as evidence in a proceeding before |
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the board or a hearing conducted by the State Office of |
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Administrative Hearings under this chapter; or |
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(B) included in the findings of fact and |
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conclusions of law in a final board order. |
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(k) If the board determines there is insufficient evidence |
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to bring action against a person based on the results of any |
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evaluation under this section, the evaluation must be expunged from |
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the board's records. |
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(l) The board shall adopt guidelines for requiring or |
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requesting a nurse or applicant to submit to an evaluation under |
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this section. |
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(m) The authority granted to the board under this section is |
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in addition to the board's authority to make licensing decisions |
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under this chapter. |
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SECTION 9. Subsections (a) and (b), Section 301.453, |
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Occupations Code, are amended to read as follows: |
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(a) If the board determines that a person has committed an |
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act listed in Section 301.452(b), the board shall enter an order |
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imposing one or more of the following: |
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(1) denial of the person's application for a license, |
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license renewal, or temporary permit; |
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(2) issuance of a written warning; |
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(3) administration of a public reprimand; |
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(4) limitation or restriction of the person's license, |
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including: |
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(A) limiting to or excluding from the person's |
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practice one or more specified activities of nursing; or |
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(B) stipulating periodic board review; |
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(5) suspension of the person's license [for a period
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not to exceed five years]; |
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(6) revocation of the person's license; or |
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(7) assessment of a fine. |
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(b) In addition to or instead of an action under Subsection |
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(a), the board, by order, may require the person to: |
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(1) submit to care, counseling, or treatment by a |
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health provider designated by the board as a condition for the |
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issuance or renewal of a license; |
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(2) participate in a program of education or |
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counseling prescribed by the board, including a program of remedial |
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education; |
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(3) practice for a specified period under the |
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direction of a registered nurse or vocational nurse designated by |
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the board; or |
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(4) perform public service the board considers |
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appropriate. |
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SECTION 10. Section 301.4535, Occupations Code, is amended |
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by adding Subsection (a-1) and amending Subsection (b) to read as |
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follows: |
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(a-1) An applicant or nurse who is refused an initial |
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license or renewal of a license or whose license is suspended under |
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Subsection (a) is not eligible for a probationary, stipulated, or |
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otherwise encumbered license unless the board establishes by rule |
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criteria that would permit the issuance or renewal of the license. |
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(b) On final conviction or a plea of guilty or nolo |
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contendere for an offense listed in Subsection (a), the board, as |
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appropriate, may not issue a license to an applicant, shall refuse |
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to renew a license, or shall revoke a license [if the applicant or
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license holder did not previously disclose the conviction or plea
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and the fifth anniversary of the date the person successfully
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completed community supervision or parole has not occurred]. |
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SECTION 11. Subchapter J, Chapter 301, Occupations Code, is |
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amended by adding Section 301.4551 to read as follows: |
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Sec. 301.4551. TEMPORARY LICENSE SUSPENSION FOR DRUG OR |
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ALCOHOL USE. The board shall temporarily suspend the license of a |
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nurse as provided by Section 301.455 if the nurse is under a board |
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order prohibiting the use of alcohol or a drug or requiring the |
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nurse to participate in a peer assistance program, and the nurse: |
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(1) tests positive for alcohol or a prohibited drug; |
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(2) refuses to comply with a board order to submit to a |
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drug or alcohol test; or |
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(3) fails to participate in the peer assistance |
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program and the program issues a letter of dismissal and referral to |
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the board for noncompliance. |
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SECTION 12. Section 301.458, Occupations Code, is amended |
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by amending Subsection (b) and adding Subsections (e), (f), and (g) |
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to read as follows: |
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(b) A formal charge must: |
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(1) be written; |
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(2) be specific enough to enable a person of common |
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understanding to know what is meant by the formal charge; [and] |
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(3) contain a degree of certainty that gives the |
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person who is the subject of the formal charge notice of each |
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particular act alleged to violate a specific statute, board rule, |
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or board order; and |
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(4) identify each factual allegation required to be |
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specifically admitted or denied. |
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(e) In responding to a formal charge, the nurse who is the |
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subject of the charge may not generally deny the factual |
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allegations. The nurse must: |
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(1) state in short and plain terms the nurse's defenses |
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to each factual allegation in the charge; and |
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(2) specifically admit or deny each factual allegation |
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in the charge. |
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(f) A denial of a factual allegation must fairly respond to |
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the substance of the allegation. A nurse who intends in good faith |
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to deny only part of an allegation must admit the part that is true |
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and deny the rest. If the nurse states the nurse is without |
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knowledge or information sufficient to form a belief about the |
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truth of a factual allegation, the statement has the effect of a |
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denial. If a factual allegation to which a response is required is |
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not denied as provided by this section, the allegation is |
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considered to be admitted. |
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(g) A defense under Subsection (e) is an alternate set of |
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facts or explanation of the facts alleged by the board that, if |
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true, disproves the facts alleged by the board in the charge. |
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SECTION 13. Section 301.468, Occupations Code, is amended |
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by amending Subsection (a) and adding Subsections (e) and (f) to |
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read as follows: |
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(a) The board may determine that an order denying a license |
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application or suspending a license be probated. A person subject |
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to a probation order shall conform to each condition the board sets |
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as the terms of probation, including a condition: |
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(1) limiting the practice of the person to, or |
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excluding, one or more specified activities of professional nursing |
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or vocational nursing; [or] |
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(2) requiring the person to submit to supervision, |
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care, counseling, or treatment by a practitioner designated by the |
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board; or |
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(3) requiring the person to submit to random drug or |
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alcohol tests in the manner prescribed by the board. |
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(e) A hearing under this section is limited to a |
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determination of whether the person violated the terms of the |
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probation order under Subsection (a) and whether the board should: |
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(1) continue, rescind, or modify the terms of |
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probation, including imposing an administrative penalty; or |
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(2) enter an order denying, suspending, or revoking |
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the person's license. |
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(f) If one of the conditions of probation is the prohibition |
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of using alcohol or a drug or participation in a peer assistance |
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program, violation of that condition is established by: |
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(1) a positive drug or alcohol test result; |
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(2) refusal to submit to a drug or alcohol test as |
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required by the board; or |
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(3) a letter of noncompliance from the peer assistance |
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program. |
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SECTION 14. Subsection (b), Section 301.202, Occupations |
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Code, is repealed. |
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SECTION 15. (a) The change in law made by Section |
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301.4521, Occupations Code, as added by this Act, applies only to an |
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application filed with the Texas Board of Nursing on or after the |
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effective date of this Act. An application filed before the |
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effective date of this Act is covered by the law in effect when the |
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application was filed, and the former law is continued in effect for |
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that purpose. |
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(b) The changes in law made by Section 301.4551, Occupations |
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Code, as added by this Act, and Section 301.468, Occupations Code, |
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as amended by this Act, apply only to a violation of an order issued |
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by the Texas Board of Nursing on or after the effective date of this |
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Act. A violation of an order issued by the Texas Board of Nursing |
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before the effective date of this Act is covered by the law in |
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effect when the order was issued, and the former law is continued in |
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effect for that purpose. |
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(c) The change in law made by Section 301.458, Occupations |
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Code, as amended by this Act, applies only to a formal charge filed |
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on or after the effective date of this Act. A formal charge filed |
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before the effective date of this Act is covered by the law in |
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effect when the charge was filed, and the former law is continued in |
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effect for that purpose. |
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SECTION 16. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
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effect, this Act takes effect September 1, 2009. |
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* * * * * |