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  81R16232 NC-D
 
  By: McReynolds, Peña H.B. No. 3961
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of nursing.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 301.160(a)(2), Occupations Code, is
  amended to read as follows:
               (2)  "Targeted continuing nursing education" means
  continuing education focusing on a skill that would likely benefit
  a significant proportion of [registered] nurses in a particular
  practice area.
         SECTION 2.  Sections 301.160(b) and (j) are amended to read
  as follows:
         (b)  The board may develop pilot programs to evaluate the
  effectiveness of mechanisms, including proactive nursing peer
  review and targeted continuing nursing education, for maintenance
  of the clinical competency of a [registered] nurse in the nurse's
  area of practice and the understanding by [registered] nurses of
  the laws, including regulations, governing the practice of
  [professional] nursing.
         (j)  The board shall issue an annual report regarding any
  pilot programs developed or approved and a status report on those
  programs, including preliminary or final findings concerning their
  effectiveness. The board shall mail the report to statewide
  associations of [registered] nurses and[, registered nurse]
  educators[,] and employers of [registered] nurses that request a
  copy. [The board shall issue a final report not later than
  September 1, 2000.]
         SECTION 3.  Sections 301.1605(a) and (c), Occupations Code,
  are amended to read as follows:
         (a)  The board may approve and adopt rules regarding pilot
  programs for innovative applications in the practice and regulation
  of [professional] nursing.
         (c)  In approving a pilot program, the board may grant the
  program an exception to the mandatory reporting requirements of
  Sections 301.401-301.409 or to a rule adopted under this chapter or
  Chapter 303 that relates to the practice of [professional] nursing,
  including education and reporting requirements for [registered]
  nurses. The board may not grant an exception to:
               (1)  the education requirements of this chapter unless
  the program includes alternate but substantially equivalent
  requirements; or
               (2)  the mandatory reporting requirements unless the
  program:
                     (A)  is designed to evaluate the efficiency of
  alternative reporting methods; and
                     (B)  provides consumers adequate protection from
  [registered] nurses whose continued practice is a threat to public
  safety.
         SECTION 4.  Sections 301.1606(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  The [Before January 1, 2004, the] board may [shall]
  solicit proposals for pilot programs designed to evaluate the
  efficacy and effect on protection of the public of reporting
  systems designed to encourage identification of system errors.
         (b)  The board may grant a pilot program approved under this
  section an exception to the mandatory reporting requirements of
  Sections 301.401-301.409 or to a rule adopted under this chapter or
  Chapter 303 that relates to the practice of [professional] nursing,
  including education and reporting requirements for [registered]
  nurses. If the board grants an exception, the board may require
  that the program:
               (1)  provide for the remediation of the deficiencies of
  a [registered] nurse who has knowledge or skill deficiencies that
  unless corrected may result in an unreasonable risk to public
  safety;
               (2)  provide for supervision of the nurse during
  remediation of deficiencies under Subdivision (1);
               (3)  require reporting to the board of a [registered]
  nurse:
                     (A)  who fails to satisfactorily complete
  remediation, or who does not make satisfactory progress in
  remediation, under Subdivision (1);
                     (B)  whose incompetence in the practice of
  [professional] nursing would pose a continued risk of harm to the
  public; or
                     (C)  whose error contributed to a patient death or
  serious patient injury; or
               (4)  provide for a nursing peer review committee to
  review whether a [registered] nurse is appropriate for remediation
  under Subdivision (1).
         SECTION 5.  Subchapter E, Chapter 301, Occupations Code, is
  amended by adding Sections 301.206 and 301.207 to read as follows:
         Sec. 301.206.  CONFIDENTIALITY OF INFORMATION COLLECTED FOR
  EMERGENCY RELIEF PROGRAMS. (a) In this section, "emergency relief
  program" means a program operated or sponsored by the federal
  government, the state, or a nonprofit organization to provide
  nurses to assist in providing health care to victims or potential
  victims of a disaster or state or local emergency.
         (b)  A nurse's personal contact information, including
  e-mail addresses, telephone numbers, and fax numbers, collected by
  the board for use by an emergency relief program is:
               (1)  confidential and not subject to disclosure under
  Chapter 552, Government Code; and
               (2)  not subject to disclosure, discovery, subpoena, or
  other means of legal compulsion for release to anyone other than for
  the purpose of contacting the nurse to assist in an emergency relief
  program.
         Sec. 301.207.  CONFIDENTIALITY OF HEALTH INFORMATION
  PROVIDED FOR LICENSURE. Information regarding a person's diagnosis
  or treatment for a physical condition, mental condition, or
  chemical dependency that the person submits to the board for a
  petition for a declaratory order of eligibility for a license or for
  an application for an initial license or a license renewal under
  this chapter is confidential to the same extent information
  collected on a nurse as part of an investigation of a complaint is
  confidential under Section 301.466.
         SECTION 6.  Section 301.257(a), Occupations Code, is amended
  to read as follows:
         (a)  A person may petition the board for a declaratory order
  as to the person's eligibility for a license under this chapter if
  the person has reason to believe that the person is ineligible for
  the license and:
               (1)  is enrolled or planning to enroll in an
  educational program that prepares a person for an initial license
  as a registered nurse or vocational nurse; or [and]
               (2)  is an applicant for a [has reason to believe that
  the person is ineligible for the] license.
         SECTION 7.  Section 301.401(2), Occupations Code, is amended
  to read as follows:
               (2)  "Minor incident" means conduct by a nurse that
  does not indicate that the nurse's continued practice poses a risk
  of harm to a patient or another person. This term is synonymous
  with "minor error" or "minor violation of this chapter or board
  rule."
         SECTION 8.  Subchapter J, Chapter 301, Occupations Code, is
  amended by adding Section 301.4521 to read as follows:
         Sec. 301.4521.  PHYSICAL AND PSYCHOLOGICAL EVALUATION. (a)
  In this section:
               (1)  "Applicant" means:
                     (A)  a petitioner for a declaratory order of
  eligibility for a license; or
                     (B)  an applicant for an initial license or
  renewal of a license.
               (2)  "Evaluation" means a physical or psychological
  evaluation conducted to determine a person's fitness to practice
  nursing.
         (b)  The board may require a nurse or applicant to submit to
  an evaluation only if the board has probable cause to believe that
  the nurse or applicant is unable to practice nursing with
  reasonable skill and safety to patients because of:
               (1)  physical impairment;
               (2)  mental impairment; or
               (3)  chemical dependency or abuse of drugs or alcohol.
         (c)  A demand for an evaluation under Subsection (b) must be
  in writing and state:
               (1)  the reasons probable cause exists to require the
  evaluation; and
               (2)  that refusal by the nurse or applicant to submit to
  the evaluation will result in an administrative hearing to be held
  to make a final determination of whether probable cause for the
  evaluation exists.
         (d)  If the nurse or applicant refuses to submit to the
  evaluation, the board shall schedule a hearing on the issue of
  probable cause to be conducted by the State Office of
  Administrative Hearings. The nurse or applicant must be notified
  of the hearing by personal service or certified mail. The hearing
  is limited to the issue of whether the board had probable cause to
  require an evaluation. The nurse or applicant may present testimony
  and other evidence at the hearing to show why the nurse or applicant
  should not be required to submit to the evaluation. The board has
  the burden of proving that probable cause exists.  At the conclusion
  of the hearing, the hearing officer shall enter an order requiring
  the nurse or applicant to submit to the evaluation or an order
  rescinding the board's demand for an evaluation.  The order may not
  be vacated or modified under Section 2001.058, Government Code.
         (e)  If a nurse or applicant refuses to submit to an
  evaluation after an order requiring the evaluation is entered under
  Subsection (d), the board may:
               (1)  refuse to issue or renew a license;
               (2)  suspend a license; or
               (3)  issue an order limiting the license.
         (f)  The board may request a nurse or applicant to consent to
  an evaluation by a practitioner approved by the board for a reason
  other than a reason listed in Subsection (b). A request for an
  evaluation under this subsection must be in writing and state:
               (1)  the reasons for the request;
               (2)  the type of evaluation requested;
               (3)  how the board may use the evaluation;
               (4)  that the nurse or applicant may refuse to submit to
  an evaluation; and
               (5)  the procedures for submitting an evaluation as
  evidence in any hearing regarding the issuance or renewal of the
  nurse's or applicant's license.
         (g)  If a nurse or applicant refuses to consent to an
  evaluation under Subsection (f), the nurse or applicant may not
  introduce an evaluation into evidence at a hearing to determine the
  nurse's or applicant's right to be issued or retain a nursing
  license unless the nurse or applicant:
               (1)  not later than the 30th day before the date of the
  hearing, notifies the board that an evaluation will be introduced
  into evidence at the hearing;
               (2)  provides the board the results of that evaluation;
               (3)  informs the board of any other evaluations by any
  other practitioners; and
               (4)  consents to an evaluation by a practitioner that
  meets board standards established under Subsection (h).
         (h)  The board shall establish by rule the qualifications for
  a licensed practitioner to conduct an evaluation under this
  section. The board shall maintain a list of qualified
  practitioners. The board may solicit qualified practitioners
  located throughout the state to be on the list.
         (i)  A nurse or applicant shall pay the costs of an
  evaluation conducted under this section.
         (j)  The results of an evaluation under this section are:
               (1)  confidential and not subject to disclosure under
  Chapter 552, Government Code; and
               (2)  not subject to disclosure by discovery, subpoena,
  or other means of legal compulsion for release to anyone, except
  that the results may be:
                     (A)  introduced as evidence in a proceeding before
  the board or a hearing conducted by the State Office of
  Administrative Hearings under this chapter; or
                     (B)  included in the findings of fact and
  conclusions of law in a final board order.
         (k)  If the board determines there is insufficient evidence
  to bring action against a person based on the results of any
  evaluation under this section, the evaluation must be expunged from
  the board's records.
         (l)  The board shall adopt guidelines for requiring or
  requesting a nurse or applicant to submit to an evaluation under
  this section.
         (m)  The authority granted to the board under this section is
  in addition to the board's authority to make licensing decisions
  under this chapter.
         SECTION 9.  Sections 301.453(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  If the board determines that a person has committed an
  act listed in Section 301.452(b), the board shall enter an order
  imposing one or more of the following:
               (1)  denial of the person's application for a license,
  license renewal, or temporary permit;
               (2)  issuance of a written warning;
               (3)  administration of a public reprimand;
               (4)  limitation or restriction of the person's license,
  including:
                     (A)  limiting to or excluding from the person's
  practice one or more specified activities of nursing; or
                     (B)  stipulating periodic board review;
               (5)  suspension of the person's license [for a period
  not to exceed five years];
               (6)  revocation of the person's license; or
               (7)  assessment of a fine.
         (b)  In addition to or instead of an action under Subsection
  (a), the board, by order, may require the person to:
               (1)  submit to care, counseling, or treatment by a
  health provider designated by the board as a condition for the
  issuance or renewal of a license;
               (2)  participate in a program of education or
  counseling prescribed by the board, including a program of remedial
  education;
               (3)  practice for a specified period under the
  direction of a registered nurse or vocational nurse designated by
  the board; or
               (4)  perform public service the board considers
  appropriate.
         SECTION 10.  Section 301.4535, Occupations Code, is amended
  by adding Subsection (a-1) and amending Subsection (b) to read as
  follows:
         (a-1)  An applicant or nurse who is refused an initial
  license or renewal of a license or whose license is suspended under
  Subsection (a) is not eligible for a probationary, stipulated, or
  otherwise encumbered license unless the board establishes by rule
  criteria that would permit the issuance or renewal of the license.
         (b)  On final conviction or a plea of guilty or nolo
  contendere for an offense listed in Subsection (a), the board, as
  appropriate, may not issue a license to an applicant, shall refuse
  to renew a license, or shall revoke a license [if the applicant or
  license holder did not previously disclose the conviction or plea
  and the fifth anniversary of the date the person successfully
  completed community supervision or parole has not occurred].
         SECTION 11.  Subchapter J, Chapter 301, Occupations Code, is
  amended by adding Section 301.4551 to read as follows:
         Sec. 301.4551.  TEMPORARY LICENSE SUSPENSION FOR DRUG OR
  ALCOHOL USE. The board shall temporarily suspend the license of a
  nurse as provided by Section 301.455 if the nurse is under a board
  order prohibiting the use of alcohol or a drug or requiring the
  nurse to participate in a peer assistance program, and the nurse:
               (1)  tests positive for alcohol or a prohibited drug;
               (2)  refuses to comply with a board order to submit to a
  drug or alcohol test; or
               (3)  fails to participate in the peer assistance
  program and the program issues a letter of dismissal and referral to
  the board for noncompliance.
         SECTION 12.  Section 301.468, Occupations Code, is amended
  by amending Subsection (a) and adding Subsections (e) and (f) to
  read as follows:
         (a)  The board may determine that an order denying a license
  application or suspending a license be probated. A person subject
  to a probation order shall conform to each condition the board sets
  as the terms of probation, including a condition:
               (1)  limiting the practice of the person to, or
  excluding, one or more specified activities of professional nursing
  or vocational nursing; [or]
               (2)  requiring the person to submit to supervision,
  care, counseling, or treatment by a practitioner designated by the
  board; or
               (3)  requiring the person to submit to random drug or
  alcohol tests in the manner prescribed by the board.
         (e)  A hearing under this section is limited to a
  determination of whether the person violated the terms of the
  probation order under Subsection (a) and whether the board should:
               (1)  continue, rescind, or modify the terms of
  probation, including imposing an administrative penalty; or
               (2)  enter an order denying, suspending, or revoking
  the person's license.
         (f)  If one of the conditions of probation is the
  prohibition of using alcohol or a drug or participation in a peer
  assistance program, violation of that condition is established by:
               (1)  a positive drug or alcohol test result;
               (2)  refusal to submit to a drug or alcohol test as
  required by the board; or
               (3)  a letter of noncompliance from the peer assistance
  program.
         SECTION 13.  Section 301.202(b), Occupations Code, is
  repealed.
         SECTION 14.  (a) The change in law made by Section 301.4521,
  Occupations Code, as added by this Act, applies only to an
  application filed with the Texas Board of Nursing on or after the
  effective date of this Act. An application filed before the
  effective date of this Act is covered by the law in effect when the
  application was filed, and the former law is continued in effect for
  that purpose.
         (b)  The changes in law made by Section 301.4551, Occupations
  Code, as added by this Act, and Section 301.468, Occupations Code,
  as amended by this Act, apply only to a violation of an order issued
  by the Texas Board of Nursing on or after the effective date of this
  Act. A violation of an order issued by the Texas Board of Nursing
  before the effective date of this Act is covered by the law in
  effect when the order was issued, and the former law is continued in
  effect for that purpose.
         SECTION 15.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2009.