82R1175 JAM-F
 
  By: Howard of Travis H.B. No. 575
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to patient advocacy activities by nurses and certain other
  persons; providing an administrative penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 301.352(a), Occupations Code, is amended
  to read as follows:
         (a)  A person may not suspend, terminate, or otherwise
  discipline, [or] discriminate against, or retaliate against:
               (1)  a nurse who refuses to engage in an act or omission
  as provided by Subsection (a-1); or
               (2)  a person who advises a nurse of the nurse's rights
  under this section.
         SECTION 2.  Subchapter I, Chapter 301, Occupations Code, is
  amended by adding Section 301.4011 to read as follows:
         Sec. 301.4011.  GOOD FAITH REPORT BY NURSE.  In this
  subchapter, a report is considered to be made in good faith if:
               (1)  the person reporting believed that the report was
  required or authorized; and
               (2)  there was a reasonable factual or legal basis for
  that belief.
         SECTION 3.  Section 301.402, Occupations Code, is amended by
  amending Subsection (f) and adding Subsection (g) to read as
  follows:
         (f)  A person may not suspend or terminate the employment of,
  or otherwise discipline, [or] discriminate against, or retaliate
  against a person who:
               (1)  reports in good faith [, without malice,] under
  this section; or
               (2)  advises a nurse of the nurse's rights and
  obligations under this section.
         (g)  A violation of Subsection (f) [this subsection] is
  subject to Section 301.413.
         SECTION 4.  Section 301.4025, Occupations Code, is amended
  by amending Subsection (c) and adding Subsection (d) to read as
  follows:
         (c)  A person may not suspend or terminate the employment of,
  or otherwise discipline, [or] discriminate against, or retaliate
  against a person who:
               (1)  reports in good faith [, without malice,] under
  this section; or
               (2)  advises a nurse of the nurse's right to report
  under this section.
         (d)  A violation of Subsection (c) [this subsection] is
  subject to Section 301.413.
         SECTION 5.  Section 301.412, Occupations Code, is amended to
  read as follows:
         Sec. 301.412.  REPORTING IMMUNITY. A person who in good
  faith [, without malice,] makes a report required or authorized [,
  or reasonably believed to be required or authorized,] under this
  subchapter, or a person who advises a nurse of the nurse's right or
  obligation to report under this subchapter:
               (1)  is immune from civil and criminal liability that,
  in the absence of the immunity, might result from making the report
  or giving the advice; and
               (2)  may not be subjected to other retaliatory action
  as a result of making the report or giving the advice.
         SECTION 6.  Section 301.413, Occupations Code, is amended by
  amending Subsections (a), (b), (c), and (e) and adding Subsections
  (b-1) and (g) 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 filing 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 a [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:
               (1)  the person is named as a defendant in a civil
  action or subjected to other retaliatory action as a result of:
                     (A)  filing a report required or 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;
                     (B)  requesting in good faith a nursing peer
  review determination under Section 303.005; or
                     (C)  providing advice to a person regarding:
                           (i)  filing a report required or 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
                           (ii)  requesting in good faith a nursing
  peer review determination under Section 303.005; and
               (2)  the suit or retaliatory action is determined to be
  frivolous, unreasonable, or taken in bad faith.
         (b)  A person may not suspend, terminate, or otherwise
  discipline, [or] discriminate against, or retaliate against a
  person who:
               (1)  reports in good faith [, without malice,] under
  this subchapter;
               (2)  requests, in good faith, a nursing peer review
  committee determination under Section 303.005; [or]
               (3)  refuses to engage in conduct as authorized by
  Section 301.352; or
               (4)  advises a nurse of the nurse's right to:
                     (A)  report under this subchapter;
                     (B)  request a nursing peer review determination
  under Section 303.005; or
                     (C)  refuse to engage in conduct as authorized by
  Section 301.352.
         (b-1)  A person suspected of violating Subsection (b) may be
  reported to the appropriate licensing agency and, notwithstanding
  any other provision, that agency may impose an administrative
  penalty not to exceed $25,000 against the person if the agency finds
  a violation of Subsection (b). An administrative penalty imposed
  under this subsection is in addition to other penalties the agency
  is authorized to impose and is subject to the procedural
  requirements applicable to the appropriate licensing agency.
         (c)  A person who reports under this subchapter, refuses to
  engage in conduct as authorized by Section 301.352, or requests a
  nursing peer review committee determination under Section 303.005,
  or a person who advises a nurse of the nurse's right to report under
  this subchapter, refuse to engage in conduct as authorized by
  Section 301.352, or request 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.
         (e)  A person who brings an action under this section has the
  burden of proof.  It is a rebuttable presumption that the person was
  suspended, terminated, or otherwise disciplined, [or]
  discriminated against, or retaliated against 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, or for providing advice to a
  person regarding reporting under this subchapter, refusing to
  engage in conduct as authorized by Section 301.352, or requesting a
  peer review committee determination under Section 303.005 if:
               (1)  the person was suspended, terminated, or otherwise
  disciplined, [or] discriminated against, or retaliated against
  within 60 days after the date the report, refusal, or request was
  made or the advice was given; and
               (2)  the board 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 in good faith [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; or
                     (D)  the advice that is the subject of the cause of
  action was given in good faith.
         (g)  A nurse employed, credentialed, privileged, or
  otherwise authorized to practice at a facility owned or operated by
  or on behalf of a state or local governmental entity who alleges a
  violation of Subsection (b) may sue the state or local governmental
  entity for the relief provided by this section, and the sovereign
  immunity of the state or local governmental entity from suit and
  from liability is waived for the limited purpose of allowing the
  nurse to maintain a lawsuit in state court to obtain that relief.  
  The provisions of Section 554.003, Government Code, relating to the
  type of relief and the amount of damages available to a public
  employee apply to a lawsuit under this subsection.  The relief
  provided by this section is in addition to any other remedies a
  nurse may have under state or federal law as a public employee.  In
  this subsection, "local governmental entity," "public employee," 
  and "state governmental entity" have the meanings assigned by
  Section 554.001, Government Code.
         SECTION 7.  Section 303.001(5), Occupations Code, is amended
  to read as follows:
               (5)  "Peer review" means the evaluation of nursing
  services, the qualifications of a nurse, the quality of patient
  care rendered by a nurse, the merits of a complaint concerning a
  nurse or nursing care, and a determination or recommendation
  regarding a complaint. The term includes:
                     (A)  the evaluation of the accuracy of a nursing
  assessment and observation and the appropriateness and quality of
  the care rendered by a nurse;
                     (B)  a report made to a nursing peer review
  committee concerning an activity under the committee's review
  authority;
                     (C)  a report made by a nursing peer review
  committee to another committee or to the board as permitted or
  required by law; [and]
                     (D)  implementation of a duty of a nursing peer
  review committee by a member, an agent, or an employee of the
  committee; and
                     (E)  the provision of information, advice, and
  assistance to nurses and other persons relating to:
                           (i)  the rights and obligations of and
  protections for nurses who raise care concerns or report under
  Chapter 301 or other state or federal law;
                           (ii)  the rights and obligations of and
  protections for nurses who request nursing peer review under this
  chapter;
                           (iii)  nursing practice and patient care
  concerns; and
                           (iv)  the resolution of workplace and
  practice questions relating to nursing and patient care.
         SECTION 8.  Section 303.005(a-1), Occupations Code, is
  amended to read as follows:
         (a-1)  For purposes of this section, a nurse or nurse
  administrator acts [does not act] in good faith in connection with a
  request made or an action taken by the nurse or nurse administrator
  if there is [not] a reasonable factual or legal basis for the
  request or action.
         SECTION 9.  (a) Section 301.413(b-1), Occupations Code, as
  added by this Act, and Sections 301.352, 301.402, 301.4025, and
  301.413(b), Occupations Code, as amended by this Act, apply only to
  a violation that occurs on or after the effective date of this Act.
  A violation that occurs before the effective date of this Act is
  covered by the law in effect on the date the violation occurred, and
  the former law is continued in effect for that purpose.
         (b)  Section 301.412, Occupations Code, as amended by this
  Act, applies only to a report made on or after the effective date of
  this Act. A report made before the effective date of this Act is
  covered by the law in effect on the date the report was made, and the
  former law is continued in effect for that purpose.
         (c)  Section 301.413(g), Occupations Code, as added by this
  Act, and Sections 301.413(a), (c), and (e), Occupations Code, as
  amended by this Act, apply only to an action commenced on or after
  the effective date of this Act. An action commenced before the
  effective date of this Act is covered by the law in effect on the
  date the action was commenced, and the former law is continued in
  effect for that purpose.
         SECTION 10.  This Act takes effect September 1, 2011.