84R5027 KKR-F

By: Allen H.B. No. 3820

A BILL TO BE ENTITLED

AN ACT

relating to safe patient handling practices at hospitals and nursing homes; providing an administrative penalty.

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

SECTION 1. Section 256.001, Health and Safety Code, is amended to read as follows:

Sec. 256.001. DEFINITIONS. In this chapter:

(1) "Department" means the Department of State Health Services.

(2) "Equipment" means a powered or non-powered device, including all accessories necessary for the operation of the device, that effectively reduces the forces exerted by or on a health care worker performing patient handling.

(3) "Health care worker" means a person who furnishes health care services in direct patient care situations under a license, certificate, or registration issued by this state or a person providing direct patient care in the course of a training or educational program.

(4) "Hospital" means a general or special hospital, as defined by Section 241.003, a private mental hospital licensed under Chapter 577, or another hospital that is maintained or operated by the state.

(5) [(2)] "Nursing home" means an institution licensed under Chapter 242.

(6) "Patient handling" means the lifting, transferring, repositioning, or moving of all or part of a patient's body with or without the assistance of equipment.

SECTION 2. Section 256.002, Health and Safety Code, is amended to read as follows:

Sec. 256.002. REQUIRED SAFE PATIENT HANDLING AND MOVEMENT POLICY. (a) The governing body of a hospital or the quality assurance committee of a nursing home shall adopt, [and] ensure implementation of, and maintain at all times a policy to identify, assess, and develop strategies to control risk of injury to patients and health care workers [nurses] associated with [the lifting, transferring, repositioning, or movement of a] patient handling.

(b) The policy shall establish a process that, at a minimum, includes:

(1) analysis of the risk of injury to both patients and health care workers [nurses] posed by the patient handling needs of the patient populations served by the hospital or nursing home and the physical environment in which patient handling [and movement] occurs;

(2) adoption of a health care worker patient handling injury prevention program under Section 256.003;

(3) education of health care workers [nurses] in the identification, assessment, and control of risks of injury to patients and nurses during patient handling;

(4) [(3)] evaluation of alternative ways to reduce risks associated with patient handling, including evaluation of equipment and the environment;

[(4) restriction, to the extent feasible with existing equipment and aids, of manual patient handling or movement of all or most of a patient's weight to emergency, life-threatening, or otherwise exceptional circumstances;]

(5) collaboration with and annual report to the hospital or nursing home [nurse] staffing committee;

(6) procedures for health care workers [nurses] to refuse to perform or be involved in patient handling or movement that the health care worker [nurse] believes in good faith will expose a patient or a nurse to an unacceptable risk of injury;

(7) submission of an annual report to the governing body or the quality assurance committee on activities related to the identification, assessment, and development of strategies to control risk of injury to patients and health care workers [nurses] associated with patient handling [the lifting, transferring, repositioning, or movement of a patient]; and

(8) in developing architectural plans for constructing or remodeling a hospital or nursing home or a unit of a hospital or nursing home in which patient handling [and movement] occurs, consideration of the feasibility of incorporating patient handling equipment or the physical space and construction design needed to incorporate that equipment at a later date.

SECTION 3. Chapter 256, Health and Safety Code, is amended by adding Sections 256.003, 256.004, 256.005, 256.006, 256.007, and 256.008 to read as follows:

Sec. 256.003. HEALTH CARE WORKER PATIENT HANDLING INJURY PREVENTION PROGRAM. (a) As part of the policy adopted under Section 256.002, the governing body of a hospital or the quality assurance committee of a nursing home shall adopt, ensure implementation of, and maintain at all times a program to prevent injuries to health care workers who are responsible for performing patient handling.

(b) The program adopted under Subsection (a) must:

(1) reflect professional occupational safety guidelines for protecting from injury patients and health care workers who perform patient handling in hospitals and nursing homes;

(2) identify circumstances in which manual patient handling is not appropriate and health care workers should use equipment for patient handling; and

(3) establish a designated lift team of health care workers who, in addition to other duties, work together to perform patient handling and who are trained on:

(A) the areas of body exposure, including vertical, lateral, bariatric, repositioning, and ambulation, involved in patient handling; and

(B) the proper use of equipment to safely perform patient handling.

(c) A registered nurse who is designated by a hospital or nursing home as the coordinator of care for a patient may:

(1) be responsible for observing or directing patient handling by other health care workers; and

(2) participate in patient handling as the nurse determines necessary based on the nurse's professional judgment.

Sec. 256.004. COMPLAINTS. (a) A person may file a complaint against a hospital or nursing home alleging a violation of this chapter in the manner provided by Chapters 241 and 242 and department rules.

(b) A hospital or nursing home may not interfere with, coerce, intimidate, or otherwise prevent a person from making a complaint under this chapter.

Sec. 256.005. RETALIATION PROHIBITED; CAUSE OF ACTION. (a) In this section, "employee" means a person who is an employee of a hospital or nursing home or any other person who provides services to a hospital or nursing home for compensation, including a contract laborer.

(b) A hospital or nursing home may not take an adverse personnel action or discriminate against an employee who refuses to perform patient handling based on:

(1) concerns over patient or employee safety; or

(2) the lack of trained designated lift team personnel available to perform patient handling.

(c) An employee has a cause of action against the hospital or nursing home, or another employee of the hospital or nursing home, if the hospital or nursing home suspends or terminates the employment of the employee or otherwise disciplines, discriminates, or retaliates against the employee in violation of this section.

(d) A hospital or nursing home may not retaliate or discriminate against a person who, in good faith:

(1) makes a complaint or files a grievance against the hospital or nursing home for a violation of this chapter;

(2) initiates or cooperates in an investigation or proceeding of a governmental entity or private accreditation body relating to an alleged violation of this chapter;

(3) makes a demand relating to an alleged violation of this chapter; or

(4) files a civil action or seeks injunctive relief relating to an alleged violation of this chapter.

(e) For purposes of Subsection (d), a person acts in good faith if the person reasonably believes that the information reported or disclosed is true or that a violation of this chapter has occurred or may occur.

(f) A person, including an employee, who is retaliated or discriminated against or subject to an adverse personnel action in violation of this section is entitled to sue for:

(1) injunctive relief;

(2) actual damages;

(3) exemplary damages;

(4) court costs;

(5) reasonable attorney's fees; and

(6) other damages allowed by law.

(g) In addition to the amounts that may be recovered under Subsection (f), an employee whose employment is suspended or terminated is entitled to appropriate injunctive relief, including, if applicable:

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

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

Sec. 256.006. REQUIRED DISCLOSURE. Notwithstanding Chapters 241 and 242 and department rules, all information and materials obtained or compiled by the department in connection with a complaint and investigation under this chapter concerning a hospital or nursing home are subject to disclosure under Chapter 552, Government Code, unless protected under federal law.

Sec. 256.007. DEPARTMENT INSPECTION, SURVEY, OR INVESTIGATION. The department may inspect, survey, or investigate a hospital or nursing home in accordance with Chapters 241 and 242 and department rules to ensure compliance with this chapter.

Sec. 256.008. VIOLATION; ADMINISTRATIVE PENALTY. (a) Except as provided under Subsection (b), a hospital or nursing home that violates this chapter is liable to the department for an administrative penalty of not more than $5,000 for each act constituting a violation. Each day a continuing violation occurs constitutes a separate violation.

(b) If a hospital or nursing home violates this chapter for at least five consecutive days, the hospital or nursing home is liable to the department for an administrative penalty of $10,000 for each act constituting a violation. Each day a continuing violation occurs constitutes a separate violation.

(c) The department shall assess the administrative penalty in accordance with the procedures established in Chapter 241 for hospitals and Chapter 242 for nursing homes.

SECTION 4. Notwithstanding Chapter 256, Health and Safety Code, as amended by this Act, a hospital or nursing home is not required to implement a health care worker patient handling injury prevention program until January 1, 2016.

SECTION 5. This Act takes effect September 1, 2015.