80(R) HB 1707 - Introduced version

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	80R1691 BEF-F

	By: Coleman	H.B. No. 1707


	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 Board of Nurse Examiners.
	(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 Board of Nurse Examiners 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 Board of Nurse Examiners. 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 Board of Nurse Examiners 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, 2010.
	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 to a facility designated as a critical access hospital
	by the United States Department of Health and Human Services before
	March 1, 2009.
	SECTION 1.03. The executive commissioner of the Health and
	Human Services Commission and the Board of Nurse Examiners shall
	jointly adopt rules under Section 241.261, Health and Safety Code,
	as added by this Act, not later than March 1, 2009.
	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 Board of Nurse Examiners~~
	~~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 301.355, 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, 2007.
	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 301.355 and is
	entitled to the protections provided by Section 301.356.
	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 301.355 and is entitled to the protections
	provided by Section 301.356.
	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 301.355; 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 301.355 and is entitled to the
	protections provided by Section 301.356.
	(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
	301.355 and is entitled to the protections provided by Section
	301.356.
	ARTICLE 4. OTHER AMENDMENTS TO OCCUPATIONS CODE
	SECTION 4.01. Section 301.352, Occupations Code, is amended
	by amending Subsections (a), (b), and (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 [~~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 that the reason for refusing 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~~].
	(b) Subsection (a) applies only if the nurse notifies the
	person of the reason for refusing to engage in the act or omission
	at the time of the refusal [~~An act by a person under Subsection (a)~~
	~~does not constitute a violation of this section if a nursing peer~~
	~~review committee under Chapter 303 determines:~~
	[~~(1)~~ ~~that the act or omission the nurse refused to~~
	~~engage in was:~~
	[~~(A)~~ ~~not conduct reportable to the board under~~
	~~Section 301.403;~~
	[~~(B)a minor incident; or~~
	[~~(C)~~ ~~a violation of this chapter or a board rule;~~
	or
	[~~(2)that:~~
	[~~(A)~~ ~~the act or omission in which the nurse~~
	~~refused to engage was conduct reportable to the board, a minor~~
	~~incident, or a violation of this chapter or a board rule; and~~
	[~~(B)the person:~~
	[~~(i)~~ ~~rescinds any disciplinary or~~
	~~discriminatory action taken against the nurse;~~
	[~~(ii)~~ ~~compensates the nurse for lost wages;~~
	~~and~~
	[~~(iii)~~ ~~restores to the nurse any lost~~
	~~benefits~~].
	(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 301.355 and is entitled to the protections provided
	by Section 301.356 [~~In this section, "minor incident" has the~~
	~~meaning assigned by Section 301.419~~].
	SECTION 4.02. Subchapter H, Chapter 301, Occupations Code,
	is amended by adding Section 301.355 to read as follows:
	Sec. 301.355. 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 301.356 to read as follows:
	Sec. 301.356. 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 301.355.
	(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 301.357 to read as follows:
	Sec. 301.357. 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
	301.355 and is entitled to the protections provided by Section
	301.356.
	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 is subject to a~~
	~~ground for reporting under Section 301.401~~]; [or]
	(2) discourage a nurse through intimidation or
	coercion from exercising the duty and right of patient advocacy
	under Section 301.355;
	(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 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 reports, without malice, under this subchapter.
	(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 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) $1,000;
	(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 if:
	(1) the nurse [~~person~~] was suspended or terminated
	within 60 days after the date the report was made; and
	(2) the board, the commissioner of the Department of
	State Health Services, or a court determines that the report that is
	the subject of the cause of action was[:
	[~~(A)~~] authorized or required under Section
	301.402[~~, 301.403, 301.405, 301.406, 301.407, 301.408, 301.409, or~~
	~~301.410; and~~
	[~~(B)made without malice~~].
	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) Section 301.401;
	(2) Sections 301.402(a), (c), (e), and (f);
	(3) Section 301.403;
	(4) Section 301.404;
	(5) Section 301.405;
	(6) Section 301.406;
	(7) Section 301.407;
	(8) Section 301.408;
	(9) Section 301.409;
	(10) Section 301.410;
	(11) Section 301.411(b);
	(12) Section 301.414;
	(13) Section 301.415;
	(14) Section 301.416;
	(15) Section 301.417;
	(16) Section 301.418; and
	(17) Section 301.419.
	SECTION 4.11. Chapter 303, Occupations Code, is repealed.
	ARTICLE 5. EFFECTIVE DATE
	SECTION 5.01. (a) Except as provided by Subsections (b) and
	(c) of this section, this Act takes effect September 1, 2007.
	(b) Section 241.254, Health and Safety Code, as added by
	this Act, takes effect January 1, 2008.
	(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, 2008.