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.