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A BILL TO BE ENTITLED
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AN ACT
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relating to patient advocacy activities by nurses and certain other |
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persons; providing an administrative penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 301.352(a), Occupations Code, is amended |
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to read as follows: |
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(a) A person may not suspend, terminate, or otherwise |
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discipline, [or] discriminate against, or retaliate against: |
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(1) a nurse who refuses to engage in an act or omission |
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as provided by Subsection (a-1); or |
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(2) a person who advises a nurse of the nurse's rights |
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under this section. |
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SECTION 2. Subchapter I, Chapter 301, Occupations Code, is |
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amended by adding Section 301.4011 to read as follows: |
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Sec. 301.4011. GOOD FAITH REPORT BY NURSE. In this |
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subchapter, a report is considered to be made in good faith if: |
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(1) the person reporting believed that the report was |
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required or authorized; and |
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(2) there was a reasonable factual or legal basis for |
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that belief. |
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SECTION 3. Section 301.402, Occupations Code, is amended by |
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amending Subsection (f) and adding Subsection (g) to read as |
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follows: |
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(f) A person may not suspend or terminate the employment of, |
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or otherwise discipline, [or] discriminate against, or retaliate |
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against a person who: |
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(1) reports in good faith [, without malice,] under |
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this section; or |
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(2) advises a nurse of the nurse's rights and |
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obligations under this section. |
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(g) A violation of Subsection (f) [this subsection] is |
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subject to Section 301.413. |
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SECTION 4. Section 301.4025, Occupations Code, is amended |
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by amending Subsection (c) and adding Subsection (d) to read as |
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follows: |
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(c) A person may not suspend or terminate the employment of, |
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or otherwise discipline, [or] discriminate against, or retaliate |
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against a person who: |
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(1) reports in good faith [, without malice,] under |
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this section; or |
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(2) advises a nurse of the nurse's right to report |
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under this section. |
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(d) A violation of Subsection (c) [this subsection] is |
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subject to Section 301.413. |
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SECTION 5. Section 301.412, Occupations Code, is amended to |
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read as follows: |
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Sec. 301.412. REPORTING IMMUNITY. A person who in good |
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faith [, without malice,] makes a report required or authorized [,
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or reasonably believed to be required or authorized,] under this |
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subchapter, or a person who advises a nurse of the nurse's right or |
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obligation to report under this subchapter: |
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(1) is immune from civil and criminal liability that, |
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in the absence of the immunity, might result from making the report |
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or giving the advice; and |
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(2) may not be subjected to other retaliatory action |
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as a result of making the report or giving the advice. |
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SECTION 6. Section 301.413, Occupations Code, is amended by |
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amending Subsections (a), (b), (c), and (e) and adding Subsections |
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(b-1) and (g) to read as follows: |
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(a) A person [named as a defendant in a civil action or
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subjected to other retaliatory action as a result of filing a report
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required, authorized, or reasonably believed to be required or
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authorized under this subchapter as a result of refusing to engage
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in conduct as authorized by Section 301.352, or as a result of
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requesting in good faith a nursing peer review determination under
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Section 303.005,] may file a counterclaim in a [the] pending action |
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or prove a cause of action in a subsequent suit to recover defense |
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costs, including reasonable attorney's fees and actual and punitive |
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damages, if: |
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(1) the person is named as a defendant in a civil |
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action or subjected to other retaliatory action as a result of: |
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(A) filing a report required or authorized, or |
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reasonably believed to be required or authorized, under this |
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subchapter as a result of refusing to engage in conduct as |
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authorized by Section 301.352; |
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(B) requesting in good faith a nursing peer |
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review determination under Section 303.005; or |
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(C) providing advice to a person regarding: |
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(i) filing a report required or authorized, |
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or reasonably believed to be required or authorized, under this |
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subchapter as a result of refusing to engage in conduct as |
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authorized by Section 301.352; or |
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(ii) requesting in good faith a nursing |
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peer review determination under Section 303.005; and |
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(2) the suit or retaliatory action is determined to be |
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frivolous, unreasonable, or taken in bad faith. |
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(b) A person may not suspend, terminate, or otherwise |
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discipline, [or] discriminate against, or retaliate against a |
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person who: |
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(1) reports in good faith [, without malice,] under |
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this subchapter; |
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(2) requests, in good faith, a nursing peer review |
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committee determination under Section 303.005; [or] |
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(3) refuses to engage in conduct as authorized by |
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Section 301.352; or |
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(4) advises a nurse of the nurse's right to: |
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(A) report under this subchapter; |
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(B) request a nursing peer review determination |
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under Section 303.005; or |
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(C) refuse to engage in conduct as authorized by |
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Section 301.352. |
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(b-1) A person suspected of violating Subsection (b) may be |
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reported to the appropriate licensing agency and, notwithstanding |
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any other provision, that agency may impose an administrative |
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penalty not to exceed $25,000 against the person if the agency finds |
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a violation of Subsection (b). An administrative penalty imposed |
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under this subsection is in addition to other penalties the agency |
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is authorized to impose and is subject to the procedural |
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requirements applicable to the appropriate licensing agency. |
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(c) A person who reports under this subchapter, refuses to |
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engage in conduct as authorized by Section 301.352, or requests a |
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nursing peer review committee determination under Section 303.005, |
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or a person who advises a nurse of the nurse's right to report under |
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this subchapter, refuse to engage in conduct as authorized by |
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Section 301.352, or request a nursing peer review determination |
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under Section 303.005, has a cause of action against a person who |
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violates Subsection (b), and may recover: |
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(1) the greater of: |
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(A) actual damages, including damages for mental |
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anguish even if no other injury is shown; or |
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(B) $5,000; |
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(2) exemplary damages; |
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(3) court costs; and |
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(4) reasonable attorney's fees. |
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(e) A person who brings an action under this section has the |
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burden of proof. It is a rebuttable presumption that the person was |
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suspended, terminated, or otherwise disciplined, [or] |
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discriminated against, or retaliated against for reporting under |
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this subchapter, for refusing to engage in conduct as authorized by |
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Section 301.352, [or] for requesting a peer review committee |
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determination under Section 303.005, or for providing advice to a |
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person regarding reporting under this subchapter, refusing to |
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engage in conduct as authorized by Section 301.352, or requesting a |
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peer review committee determination under Section 303.005 if: |
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(1) the person was suspended, terminated, or otherwise |
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disciplined, [or] discriminated against, or retaliated against |
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within 60 days after the date the report, refusal, or request was |
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made or the advice was given; and |
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(2) the board or a court determines that: |
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(A) the report that is the subject of the cause of |
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action was: |
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(i) authorized or required under Section |
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301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408, |
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301.409, or 301.410; and |
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(ii) made in good faith [without malice]; |
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(B) the request for a peer review committee |
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determination that is the subject of the cause of action was: |
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(i) authorized under Section 303.005; and |
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(ii) made in good faith; [or] |
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(C) the refusal to engage in conduct was |
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authorized by Section 301.352; or |
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(D) the advice that is the subject of the cause of |
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action was given in good faith. |
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(g) A nurse employed, credentialed, privileged, or |
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otherwise authorized to practice at a facility owned or operated by |
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or on behalf of a state or local governmental entity who alleges a |
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violation of Subsection (b) may sue the state or local governmental |
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entity for the relief provided by this section, and the sovereign |
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immunity of the state or local governmental entity from suit and |
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from liability is waived for the limited purpose of allowing the |
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nurse to maintain a lawsuit in state court to obtain that relief. |
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The provisions of Section 554.003, Government Code, relating to the |
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type of relief and the amount of damages available to a public |
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employee apply to a lawsuit under this subsection. The relief |
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provided by this section is in addition to any other remedies a |
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nurse may have under state or federal law as a public employee. In |
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this subsection, "local governmental entity," "public employee," |
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and "state governmental entity" have the meanings assigned by |
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Section 554.001, Government Code. |
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SECTION 7. Section 303.001(5), Occupations Code, is amended |
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to read as follows: |
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(5) "Peer review" means the evaluation of nursing |
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services, the qualifications of a nurse, the quality of patient |
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care rendered by a nurse, the merits of a complaint concerning a |
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nurse or nursing care, and a determination or recommendation |
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regarding a complaint. The term includes: |
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(A) the evaluation of the accuracy of a nursing |
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assessment and observation and the appropriateness and quality of |
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the care rendered by a nurse; |
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(B) a report made to a nursing peer review |
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committee concerning an activity under the committee's review |
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authority; |
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(C) a report made by a nursing peer review |
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committee to another committee or to the board as permitted or |
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required by law; [and] |
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(D) implementation of a duty of a nursing peer |
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review committee by a member, an agent, or an employee of the |
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committee; and |
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(E) the provision of information, advice, and |
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assistance to nurses and other persons relating to: |
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(i) the rights and obligations of and |
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protections for nurses who raise care concerns or report under |
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Chapter 301 or other state or federal law; |
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(ii) the rights and obligations of and |
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protections for nurses who request nursing peer review under this |
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chapter; |
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(iii) nursing practice and patient care |
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concerns; and |
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(iv) the resolution of workplace and |
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practice questions relating to nursing and patient care. |
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SECTION 8. Section 303.005(a-1), Occupations Code, is |
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amended to read as follows: |
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(a-1) For purposes of this section, a nurse or nurse |
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administrator acts [does not act] in good faith in connection with a |
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request made or an action taken by the nurse or nurse administrator |
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if there is [not] a reasonable factual or legal basis for the |
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request or action. |
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SECTION 9. (a) Section 301.413(b-1), Occupations Code, as |
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added by this Act, and Sections 301.352, 301.402, 301.4025, and |
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301.413(b), Occupations Code, as amended by this Act, apply only to |
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a violation that occurs on or after the effective date of this Act. |
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A violation that occurs before the effective date of this Act is |
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covered by the law in effect on the date the violation occurred, and |
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the former law is continued in effect for that purpose. |
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(b) Section 301.412, Occupations Code, as amended by this |
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Act, applies only to a report made on or after the effective date of |
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this Act. A report made before the effective date of this Act is |
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covered by the law in effect on the date the report was made, and the |
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former law is continued in effect for that purpose. |
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(c) Section 301.413(g), Occupations Code, as added by this |
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Act, and Sections 301.413(a), (c), and (e), Occupations Code, as |
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amended by this Act, apply only to an action commenced on or after |
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the effective date of this Act. An action commenced before the |
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effective date of this Act is covered by the law in effect on the |
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date the action was commenced, and the former law is continued in |
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effect for that purpose. |
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SECTION 10. This Act takes effect September 1, 2011. |