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AN ACT
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relating to nursing peer review and the regulation of the practice |
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of nursing. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 301.002, Occupations Code, is amended by |
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adding Subdivisions (1-a) and (1-b) to read as follows: |
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(1-a) "Chief nursing officer" means the registered |
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nurse who is administratively responsible for the nursing services |
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at a facility. |
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(1-b) "Patient safety committee" has the meaning |
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assigned by Section 303.001. |
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SECTION 2. Subsection (b), Section 301.303, Occupations |
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Code, is amended to read as follows: |
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(b) The board may not require participation in more than a |
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total of 20 hours of continuing education in a two-year licensing |
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period [and may not require that more than 10 hours of the
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continuing education consist of classroom instruction in approved
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programs. The remaining hours of continuing education may consist
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of any combination of:
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[(1) classroom instruction;
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[(2) institutional-based instruction; or
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[(3) individualized study]. |
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SECTION 3. Section 301.352, Occupations Code, is amended by |
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amending Subsection (a) and adding Subsections (a-1) and (f) to |
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read as follows: |
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(a) A person may not suspend, terminate, or otherwise |
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discipline or discriminate against a nurse who refuses to engage in |
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an act or omission as provided by Subsection (a-1). |
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(a-1) A nurse may refuse to engage in an act or omission |
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relating to patient care that would constitute grounds for |
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reporting the nurse to the board under Subchapter I, that |
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constitutes a minor incident, or that violates this chapter or a |
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board rule if the nurse notifies the person at the time of the |
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refusal that the reason for refusing is that the act or omission: |
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(1) constitutes grounds for reporting the nurse to the |
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board; or |
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(2) is a violation of this chapter or a rule of the |
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board. |
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(f) A violation of this section is subject to Section |
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301.413. |
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SECTION 4. Subchapter H, Chapter 301, Occupations Code, is |
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amended by adding Section 301.355 to read as follows: |
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Sec. 301.355. POLICIES APPLICABLE TO NURSES EMPLOYED BY |
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MEDICAL AND DENTAL UNITS. (a) The president of a medical and |
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dental unit, as defined by Section 61.003, Education Code, shall |
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determine whether a nurse who is employed by the unit for practice |
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in patient care or in clinical activities is a full-time employee |
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for purposes of: |
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(1) employees group benefits under Chapter 1551 or |
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1601, Insurance Code; |
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(2) leave under Chapter 661 or 662, Government Code; |
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and |
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(3) longevity pay under Section 659.043, Government |
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Code. |
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(b) A determination under Subsection (a) does not entitle a |
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nurse who works less than 40 hours a week to the full state |
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contribution to the cost of any coverage or benefit. However, from |
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money other than money appropriated from the general revenue fund, |
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the medical and dental unit may contribute to the cost of any |
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coverage or benefit an amount that exceeds the state contribution. |
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SECTION 5. The heading to Subchapter I, Chapter 301, |
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Occupations Code, is amended to read as follows: |
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SUBCHAPTER I. REPORTING VIOLATIONS AND PATIENT CARE CONCERNS [DUTY
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TO REPORT VIOLATION] |
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SECTION 6. Section 301.401, Occupations Code, is amended to |
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read as follows: |
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Sec. 301.401. DEFINITIONS [GROUNDS FOR REPORTING NURSE]. |
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In this subchapter: |
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(1) "Conduct subject to reporting" means conduct by a |
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nurse that: |
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(A) violates this chapter or a board rule and |
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contributed to the death or serious injury of a patient; |
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(B) causes a person to suspect that the nurse's |
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practice is impaired by chemical dependency or drug or alcohol |
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abuse; |
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(C) constitutes abuse, exploitation, fraud, or a |
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violation of professional boundaries; or |
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(D) indicates that the nurse lacks knowledge, |
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skill, judgment, or conscientiousness to such an extent that the |
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nurse's continued practice of nursing could reasonably be expected |
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to pose a risk of harm to a patient or another person, regardless of |
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whether the conduct consists of a single incident or a pattern of |
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behavior. |
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(2) "Minor incident" means conduct by a nurse that |
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does not indicate that the nurse's continued practice poses a risk |
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of harm to a patient or another person. |
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(3) "Nursing educational program" means an |
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educational program that is considered approved by the board that |
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may lead to an initial license as a registered nurse or vocational |
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nurse. |
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(4) "Nursing student" means an individual who is |
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enrolled in a nursing educational program [(a)
Except as provided
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by Subsection (b), the following are grounds for reporting a nurse
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under Section 301.402, 301.403, 301.405, or 301.407:
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[(1)
likely exposure by the nurse of a patient or other
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person to an unnecessary risk of harm;
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[(2) unprofessional conduct by the nurse;
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[(3)
failure by the nurse to adequately care for a
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patient;
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[(4)
failure by the nurse to conform to the minimum
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standards of acceptable nursing practice; or
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[(5)
impairment or likely impairment of the nurse's
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practice by chemical dependency]. |
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[(b)
Subsection (a) does not apply to a minor incident, as
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defined by Section 301.419, if the incident is not required to be
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reported under a rule adopted under Section 301.419.] |
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SECTION 7. The heading to Section 301.402, Occupations |
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Code, is amended to read as follows: |
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Sec. 301.402. MANDATORY REPORT BY NURSE [DUTY OF NURSE TO
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REPORT]. |
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SECTION 8. Subsections (b), (e), and (f), Section 301.402, |
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Occupations Code, are amended to read as follows: |
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(b) A nurse shall report to the board in the manner |
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prescribed under Subsection (d) if the nurse has reasonable cause |
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to suspect that: |
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(1) another nurse has engaged in conduct subject to |
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reporting [is subject to a ground for reporting under Section
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301.401]; or |
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(2) the ability of a nursing student to perform the |
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services of the nursing profession would be, or would reasonably be |
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expected to be, impaired by chemical dependency. |
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(e) Instead of reporting to the board under Subsection (b), |
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a [A] nurse may make a report required under: |
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(1) Subsection (b)(1) to a nursing peer review |
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committee under Chapter 303; or |
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(2) Subsection (b)(2) to the nursing educational |
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program in which the student is enrolled [instead of reporting to
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the board]. |
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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, a person who |
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reports, without malice, under this section. A violation of this |
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subsection is subject to Section 301.413 [nurse may report to the
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nurse's employer or another entity at which the nurse is authorized
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to practice any situation that the nurse has reasonable cause to
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believe exposes a patient to substantial risk of harm as a result of
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a failure to provide patient care that conforms to minimum
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standards of acceptable and prevailing professional practice or to
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statutory, regulatory, or accreditation standards. For purposes of
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this subsection, the employer or entity includes an employee or
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agent of the employer or entity]. |
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SECTION 9. Subchapter I, Chapter 301, Occupations Code, is |
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amended by adding Section 301.4025 to read as follows: |
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Sec. 301.4025. OPTIONAL REPORT BY NURSE. (a) In a |
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written, signed report to the appropriate licensing board or |
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accrediting body, a nurse may report a licensed health care |
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practitioner, agency, or facility that the nurse has reasonable |
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cause to believe has exposed a patient to substantial risk of harm |
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as a result of failing to provide patient care that conforms to: |
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(1) minimum standards of acceptable and prevailing |
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professional practice, for a report made regarding a practitioner; |
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or |
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(2) statutory, regulatory, or accreditation |
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standards, for a report made regarding an agency or facility. |
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(b) A nurse may report to the nurse's employer or another |
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entity at which the nurse is authorized to practice any situation |
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that the nurse has reasonable cause to believe exposes a patient to |
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substantial risk of harm as a result of a failure to provide patient |
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care that conforms to minimum standards of acceptable and |
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prevailing professional practice or to statutory, regulatory, or |
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accreditation standards. For purposes of this subsection, an |
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employer or entity includes an employee or agent of the employer or |
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entity. |
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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, a person who |
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reports, without malice, under this section. A violation of this |
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subsection is subject to Section 301.413. |
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SECTION 10. Section 301.403, Occupations Code, is amended |
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to read as follows: |
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Sec. 301.403. DUTY OF PEER REVIEW COMMITTEE TO REPORT. |
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(a) Except as provided by Subsection (b), a [A] nursing peer |
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review committee operating under Chapter 303 that determines that a |
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nurse has engaged in conduct subject to reporting [has a ground for
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reporting a nurse under Section 301.401] shall file with the board a |
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written, signed report that includes: |
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(1) the identity of the nurse; |
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(2) a description of any corrective action taken |
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against the nurse; |
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(3) a recommendation [statement] whether the [nursing
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peer review committee recommends that the] board should take formal |
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disciplinary action against the nurse and the basis for the |
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recommendation; |
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(4) a description of the conduct subject to [ground
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for] reporting; |
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(5) the extent to which any deficiency in care |
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provided by the reported nurse was the result of a factor beyond the |
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nurse's control [rather than a deficiency in the nurse's judgment,
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knowledge, training, or skill]; and |
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(6) any additional information the board requires. |
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(b) A report under Subsection (a) is not required if: |
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(1) the nursing peer review committee determines that |
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the reported conduct was a minor incident that is not required to be |
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reported under board rule; or |
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(2) the nurse has been reported to the board for the |
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conduct under Section 301.405. |
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SECTION 11. Section 301.404, Occupations Code, is amended |
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to read as follows: |
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Sec. 301.404. DUTY OF NURSING EDUCATIONAL PROGRAM TO |
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REPORT. [(a)
In this section, "nursing educational program" and
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"nursing student" have the meanings assigned by Section 301.402(a).
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[(b)] A nursing educational program that has reasonable |
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cause to suspect that the ability of a nursing student to perform |
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the services of the nursing profession would be, or would |
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reasonably be expected to be, impaired by chemical dependency shall |
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file with the board a written, signed report that includes the |
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identity of the student and any additional information the board |
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requires. |
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SECTION 12. Subsections (b), (c), and (e), Section 301.405, |
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Occupations Code, are amended to read as follows: |
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(b) A person that terminates, suspends for more than seven |
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days, or takes other substantive disciplinary action, as defined by |
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the board, against a nurse, or a substantially equivalent action |
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against a nurse who is a staffing agency nurse, because the nurse |
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engaged in conduct subject to reporting [a ground under Section
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301.401 exists to report the nurse] shall report in writing to the |
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board: |
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(1) the identity of the nurse; |
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(2) the conduct subject to reporting that resulted in |
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[ground that preceded] the termination, suspension, or other |
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substantive disciplinary action or substantially equivalent |
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action; and |
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(3) any additional information the board requires. |
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(c) If a person who makes a report required under Subsection |
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(b) is required under Section 303.0015 to establish a nursing peer |
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review committee, the person shall submit a copy of the report to |
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the nursing peer review committee. The nursing peer review |
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committee shall review the conduct to determine if any deficiency |
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in care by the reported nurse was the result of a factor beyond the |
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nurse's control. A nursing peer review committee that determines |
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that there is reason to believe that the nurse's deficiency in care |
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was the result of a factor beyond the nurse's control shall report |
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the conduct to the patient safety committee at the facility where |
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the reported conduct occurred, or if the facility does not have a |
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patient safety committee, to the chief nursing officer [Except as
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provided by Subsection (g), each person subject to this section
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that regularly employs, hires, or otherwise contracts for the
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services of 10 or more nurses shall develop a written plan for
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identifying and reporting a nurse under Section 301.401(a). The
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plan must provide for the review of the nurse and the incident by a
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nursing peer review committee established and operated under
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Chapter 303. Review by the committee is only advisory, but is
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required, even if the nurse is voluntarily or involuntarily
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terminated]. |
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(e) The requirement under Subsection (c) that a nursing peer |
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review committee review the nurse and the incident does not subject |
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a person's administrative decision to discipline a nurse to the |
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peer review process [or prevent a person from taking disciplinary
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action before review by the peer review committee is conducted]. |
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SECTION 13. Subsection (b), Section 301.407, Occupations |
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Code, is amended to read as follows: |
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(b) Unless expressly prohibited by state or federal law, a |
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state agency that has reason to believe that a nurse has engaged in |
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conduct subject to reporting [a ground for reporting a nurse exists
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under Section 301.401] shall report the nurse in writing to the |
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board or to a nursing peer review committee under Chapter 303 [the
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identity of that nurse]. |
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SECTION 14. Subsections (a), (b), (c), and (e), Section |
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301.413, Occupations Code, are amended 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 the pending action or |
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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 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 or terminate the employment of, |
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or otherwise discipline or discriminate against, a person who: |
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(1) reports, without malice, under this subchapter; or |
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(2) requests, in good faith, a nursing peer review |
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determination under Section 303.005. |
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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 determination under Section 303.005 has a cause |
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of action against a person who violates Subsection (b), and may |
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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 [$1,000]; |
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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's |
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employment was suspended or terminated for reporting under this |
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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 if: |
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(1) the person was suspended or terminated within 60 |
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days after the date the report, refusal, or request was made; 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) [(A)] authorized or required under |
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Section 301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, |
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301.408, 301.409, or 301.410; and |
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(ii) [(B)] made 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. |
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SECTION 15. Section 301.457, Occupations Code, is amended |
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by adding Subsection (g) to read as follows: |
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(g) If the board determines after investigating a complaint |
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under Subsection (e) that there is reason to believe that a nurse's |
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deficiency in care was the result of a factor beyond the nurse's |
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control, the board shall report that determination to the patient |
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safety committee at the facility where the nurse's deficiency in |
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care occurred, or if the facility does not have a patient safety |
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committee, to the chief nursing officer. |
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SECTION 16. Section 303.001, Occupations Code, is amended |
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by adding Subdivision (4-a) to read as follows: |
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(4-a) "Patient safety committee" means a committee |
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established by an association, school, agency, health care |
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facility, or other organization to address issues relating to |
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patient safety, including: |
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(A) the entity's medical staff composed of |
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individuals licensed under Subtitle B; or |
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(B) a medical committee under Subchapter D, |
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Chapter 161, Health and Safety Code. |
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SECTION 17. Chapter 303, Occupations Code, is amended by |
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adding Section 303.0015 to read as follows: |
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Sec. 303.0015. REQUIRED ESTABLISHMENT OF NURSING PEER |
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REVIEW COMMITTEE. (a) A person shall establish a nursing peer |
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review committee to conduct nursing peer review under this chapter |
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and Chapter 301: |
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(1) for vocational nurses, if the person regularly |
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employs, hires, or contracts for the services of 10 or more nurses; |
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and |
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(2) for professional nurses, if the person regularly |
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employs, hires, or contracts for the services of 10 or more nurses, |
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at least five of whom are registered nurses. |
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(b) A person required to establish a nursing peer review |
|
committee under this section may contract with another entity to |
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conduct the peer review for the person. |
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SECTION 18. Section 303.005, Occupations Code, is amended |
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by adding Subsections (a-1) and (i) and amending Subsections (b), |
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(d), and (h) to read as follows: |
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(a-1) For purposes of this section, a nurse or nurse |
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administrator 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 request |
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or action. |
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(b) If a person who is required to establish a nursing peer |
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review committee under Section 303.0015 [regularly employs, hires,
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or otherwise contracts for the services of at least 10 nurses] |
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requests a nurse [one of those nurses] to engage in conduct that the |
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nurse believes violates a nurse's duty to a patient, the nurse may |
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request, on a form developed or approved by the board, a |
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determination by a nursing peer review committee under this chapter |
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of whether the conduct violates a nurse's duty to a patient. |
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(d) If a nurse requests a peer review determination under |
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Subsection (b) and refuses to engage in the requested conduct |
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pending the peer review, the determination [The determinations] of |
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the peer review committee shall be considered in any [a] decision by |
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the nurse's employer to discipline the nurse for the refusal to |
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engage in the requested conduct, but the determination is |
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[determinations are] not binding if a nurse administrator believes |
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in good faith that the peer review committee has incorrectly |
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determined a nurse's duty. This subsection does not affect the |
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protections provided by Subsection (c)(1) or Section 301.352. |
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(h) A person may not suspend or terminate the employment of, |
|
or otherwise discipline or discriminate against, a nurse who in |
|
good faith requests a peer review determination under this section |
|
or a person who advises a nurse of the nurse's right to request a |
|
determination or of the procedures for requesting a determination. |
|
A violation of this subsection is subject to Section 301.413 [A
|
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person is not required to provide a peer review determination under
|
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this section for a request made by a registered nurse, unless the
|
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person regularly employs, hires, or otherwise contracts for the
|
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services of at least five registered nurses]. |
|
(i) A person who is required to provide, on request, a |
|
nursing peer review committee determination under Subsection (b) |
|
shall adopt and implement a policy to inform nurses of the right to |
|
request a nursing peer review committee determination and the |
|
procedure for making a request. |
|
SECTION 19. Chapter 303, Occupations Code, is amended by |
|
adding Section 303.0075 to read as follows: |
|
Sec. 303.0075. SHARING OF INFORMATION. (a) A nursing peer |
|
review committee and a patient safety committee established by the |
|
same entity may share information. |
|
(b) A record or determination of a patient safety committee, |
|
or a communication made to a patient safety committee, is not |
|
subject to subpoena or discovery and is not admissible in any civil |
|
or administrative proceeding, regardless of whether the |
|
information has been provided to a nursing peer review committee. |
|
The privileges under this subsection may be waived only through a |
|
written waiver signed by the chair, vice chair, or secretary of the |
|
patient safety committee. This subsection does not affect the |
|
application of Section 303.007 to a nursing peer review committee. |
|
(c) A committee that receives information from another |
|
committee shall forward any request to disclose the information to |
|
the committee that provided the information. |
|
SECTION 20. Section 303.011, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 303.011. EVALUATION BY COMMITTEE. (a) In evaluating |
|
a nurse's conduct, the nursing peer review committee shall review |
|
the evidence to determine the extent to which a deficiency in care |
|
by the nurse was the result of deficiencies in the nurse's judgment, |
|
knowledge, training, or skill rather than other factors beyond the |
|
nurse's control. A determination that a deficiency in care is |
|
attributable to a nurse must be based on the extent to which the |
|
nurse's conduct was the result of a deficiency in the nurse's |
|
judgment, knowledge, training, or skill. |
|
(b) The nursing peer review committee shall report a |
|
deficiency in care that the committee determines was the result of a |
|
factor beyond the nurse's control to a patient safety committee for |
|
evaluation. The patient safety committee shall evaluate the |
|
influence of the factors on the conduct of the nurse being evaluated |
|
and on the practice of other nurses within the entity that |
|
established the committee. The committee shall report its findings |
|
to the nursing peer review committee. |
|
SECTION 21. The following provisions of the Occupations |
|
Code are repealed: |
|
(1) Subsection (d), Section 301.303; |
|
(2) Subsection (e), Section 301.352; |
|
(3) Subsections (a) and (c), Section 301.402; |
|
(4) Subsections (d), (f), (g), and (h), Section |
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301.405; |
|
(5) Subsection (a), Section 301.419; and |
|
(6) Subsection (h), Section 303.005. |
|
SECTION 22. (a) Except as provided by Subsection (b) of |
|
this section, the changes in law made by this Act apply only to |
|
conduct that occurs on or after the effective date of this Act. |
|
Conduct that occurs before the effective date of this Act is |
|
governed by the law in effect when the conduct occurs, and the |
|
former law is continued in effect for that purpose. |
|
(b) The change in law made by this Act by the amendment of |
|
Subsection (b), Section 301.303, Occupations Code, applies only to |
|
an application for renewal of a license issued under Chapter 301, |
|
Occupations Code, that is submitted on or after the effective date |
|
of this Act. An application for renewal submitted before the |
|
effective date of this Act is governed by the law in effect when the |
|
application is submitted, and the former law is continued in effect |
|
for that purpose. |
|
SECTION 23. This Act takes effect September 1, 2007. |
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______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
I hereby certify that S.B. No. 993 passed the Senate on |
|
April 12, 2007, by the following vote: Yeas 31, Nays 0; May 18, |
|
2007, Senate refused to concur in House amendments and requested |
|
appointment of Conference Committee; May 22, 2007, House granted |
|
request of the Senate; May 26, 2007, Senate adopted Conference |
|
Committee Report by the following vote: Yeas 30, Nays 0. |
|
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______________________________ |
|
Secretary of the Senate |
|
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I hereby certify that S.B. No. 993 passed the House, with |
|
amendments, on May 10, 2007, by the following vote: Yeas 136, |
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Nays 0, one present not voting; May 22, 2007, House granted request |
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of the Senate for appointment of Conference Committee; |
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May 26, 2007, House adopted Conference Committee Report by the |
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following vote: Yeas 139, Nays 0, two present not voting. |
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Chief Clerk of the House |
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Approved: |
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Date |
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Governor |