S.B. No. 476
 
 
 
 
AN ACT
  relating to staffing, overtime, and other employment protections
  for nurses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle B, Title 4, Health and Safety Code, is
  amended by adding Chapters 257 and 258 to read as follows:
  CHAPTER 257. NURSE STAFFING
         Sec. 257.001.  DEFINITIONS. In this chapter:
               (1)  "Committee" means a nurse staffing committee
  required by this chapter.
               (2)  "Department" means the Department of State Health
  Services.
               (3)  "Hospital" means:
                     (A)  a general hospital or special hospital, as
  those terms are defined by Section 241.003, including a hospital
  maintained or operated by this state; or
                     (B)  a mental hospital licensed under Chapter 577.
               (4)  "Patient care unit" means a unit or area of a
  hospital in which registered nurses provide patient care.
         Sec. 257.002.  LEGISLATIVE FINDINGS. (a)  The legislature
  finds that:
               (1)  research supports a conclusion that adequate nurse
  staffing is directly related to positive patient outcomes and nurse
  satisfaction with the practice environment;
               (2)  nurse satisfaction with the practice environment
  is in large measure determined by providing an adequate level of
  nurse staffing based on research findings and patient intensity;
               (3)  nurse satisfaction and patient safety can be
  adversely affected when nurses work excessive hours; and
               (4)  hospitals and nurses share a mutual interest in
  patient safety initiatives that create a healthy environment for
  nurses and appropriate care for patients.
         (b)  In order to protect patients, support greater retention
  of registered nurses, and promote adequate nurse staffing, the
  legislature intends to establish a mechanism whereby nurses and
  hospital management shall participate in a joint process regarding
  decisions about nurse staffing.
         Sec. 257.003.  NURSE STAFFING POLICY AND PLAN. (a)  The
  governing body of a hospital shall adopt, implement, and enforce a
  written nurse staffing policy to ensure that an adequate number and
  skill mix of nurses are available to meet the level of patient care
  needed. The policy must include a process for:
               (1)  requiring the hospital to give significant
  consideration to the nurse staffing plan recommended by the
  hospital's nurse staffing committee and to that committee's
  evaluation of any existing plan;
               (2)  adopting, implementing, and enforcing an official
  nurse services staffing plan that is based on the needs of each
  patient care unit and shift and on evidence relating to patient care
  needs;
               (3)  using the official nurse services staffing plan as
  a component in setting the nurse staffing budget;
               (4)  encouraging nurses to provide input to the
  committee relating to nurse staffing concerns;
               (5)  protecting from retaliation nurses who provide
  input to the committee; and
               (6)  ensuring compliance with rules adopted by the
  executive commissioner of the Health and Human Services Commission
  relating to nurse staffing.
         (b)  The official nurse services staffing plan adopted under
  Subsection (a) must:
               (1)  reflect current standards established by private
  accreditation organizations, governmental entities, national
  nursing professional associations, and other health professional
  organizations;
               (2)  set minimum staffing levels for patient care units
  that are:
                     (A)  based on multiple nurse and patient
  considerations; and
                     (B)  determined by the nursing assessment and in
  accordance with evidence-based safe nursing standards;
               (3)  include a method for adjusting the staffing plan
  for each patient care unit to provide staffing flexibility to meet
  patient needs; and
               (4)  include a contingency plan when patient care needs
  unexpectedly exceed direct patient care staff resources.
         (c)  The hospital shall:
               (1)  use the official nurse services staffing plan:
                     (A)  as a component in setting the nurse staffing
  budget; and
                     (B)  to guide the hospital in assigning nurses
  hospital-wide; and
               (2)  make readily available to nurses on each patient
  care unit at the beginning of each shift the official nurse services
  staffing plan levels and current staffing levels for that unit and
  that shift.
         Sec. 257.004.  NURSE STAFFING COMMITTEE. (a)  A hospital
  shall establish a nurse staffing committee as a standing committee
  of the hospital.
         (b)  The committee shall be composed of members who are
  representative of the types of nursing services provided in the
  hospital.
         (c)  The chief nursing officer of the hospital is a voting
  member of the committee.
         (d)  At least 60 percent of the members of the committee must
  be registered nurses who:
               (1)  provide direct patient care during at least 50
  percent of their work time; and
               (2)  are selected by their peers who provide direct
  patient care during at least 50 percent of their work time.
         (e)  The committee shall meet at least quarterly.
         (f)  Participation on the committee by a hospital employee as
  a committee member is part of the employee's work time, and the
  hospital shall compensate that member for that time accordingly.
  The hospital shall relieve a committee member of other work duties
  during committee meetings.
         (g)  The committee shall:
               (1)  develop and recommend to the hospital's governing
  body a nurse staffing plan that meets the requirements of Section
  257.003;
               (2)  review, assess, and respond to staffing concerns
  expressed to the committee;
               (3)  identify the nurse-sensitive outcome measures the
  committee will use to evaluate the effectiveness of the official
  nurse services staffing plan;
               (4)  evaluate, at least semiannually, the
  effectiveness of the official nurse services staffing plan and
  variations between the plan and the actual staffing; and
               (5)  submit to the hospital's governing body, at least
  semiannually, a report on nurse staffing and patient care outcomes,
  including the committee's evaluation of the effectiveness of the
  official nurse services staffing plan and aggregate variations
  between the staffing plan and actual staffing.
         (h)  In evaluating the effectiveness of the official nurse
  services staffing plan, the committee shall consider patient needs,
  nursing-sensitive quality indicators, nurse satisfaction measures
  collected by the hospital, and evidence-based nurse staffing
  standards.
         Sec. 257.005.  REPORTING OF STAFFING INFORMATION TO
  DEPARTMENT. (a)  A hospital shall annually report to the
  department on:
               (1)  whether the hospital's governing body has adopted
  a nurse staffing policy as required by Section 257.003;
               (2)  whether the hospital has established a nurse
  staffing committee as required by Section 257.004 that meets the
  membership requirements of that section;
               (3)  whether the nurse staffing committee has evaluated
  the hospital's official nurse services staffing plan as required by
  Section 257.004 and has reported the results of the evaluation to
  the hospital's governing body as provided by that section; and
               (4)  the nurse-sensitive outcome measures the
  committee adopted for use in evaluating the hospital's official
  nurse services staffing plan.
         (b)  Information reported under Subsection (a) is public
  information.
         (c)  To the extent possible, the department shall collect the
  data required under Subsection (a) as part of a survey required by
  the department under other law.
  CHAPTER 258. MANDATORY OVERTIME FOR NURSES PROHIBITED
         Sec. 258.001.  DEFINITIONS. In this chapter:
               (1)  "Hospital" means:
                     (A)  a general hospital or special hospital, as
  those terms are defined by Section 241.003, including a hospital
  maintained or operated by this state; or
                     (B)  a mental hospital licensed under Chapter 577.
               (2)  "Nurse" means a registered nurse or vocational
  nurse licensed under Chapter 301, Occupations Code.
               (3)  "On-call time" means time spent by a nurse who is
  not working but who is compensated for availability.
         Sec. 258.002.  MANDATORY OVERTIME. For purposes of this
  chapter, "mandatory overtime" means a requirement that a nurse work
  hours or days that are in addition to the hours or days scheduled,
  regardless of the length of a scheduled shift or the number of
  scheduled shifts each week. In determining whether work is
  mandatory overtime, prescheduled on-call time or time immediately
  before or after a scheduled shift necessary to document or
  communicate patient status to ensure patient safety is not
  included.
         Sec. 258.003.  PROHIBITION OF MANDATORY OVERTIME. (a)  A
  hospital may not require a nurse to work mandatory overtime, and a
  nurse may refuse to work mandatory overtime.
         (b)  This section does not prohibit a nurse from volunteering
  to work overtime.
         (c)  A hospital may not use on-call time as a substitute for
  mandatory overtime.
         Sec. 258.004.  EXCEPTIONS. (a)  Section 258.003 does not
  apply if:
               (1)  a health care disaster, such as a natural or other
  type of disaster that increases the need for health care personnel,
  unexpectedly affects the county in which the nurse is employed or
  affects a contiguous county;
               (2)  a federal, state, or county declaration of
  emergency is in effect in the county in which the nurse is employed
  or is in effect in a contiguous county;
               (3)  there is an emergency or unforeseen event of a kind
  that:
                     (A)  does not regularly occur;
                     (B)  increases the need for health care personnel
  at the hospital to provide safe patient care; and
                     (C)  could not prudently be anticipated by the
  hospital; or
               (4)  the nurse is actively engaged in an ongoing
  medical or surgical procedure and the continued presence of the
  nurse through the completion of the procedure is necessary to
  ensure the health and safety of the patient.
         (b)  If a hospital determines that an exception exists under
  Subsection (a)(3), the hospital shall, to the extent possible, make
  a good faith effort to meet the staffing need through voluntary
  overtime, including calling per diems and agency nurses, assigning
  floats, or requesting an additional day of work from off-duty
  employees.
         Sec. 258.005.  RETALIATION PROHIBITED. A hospital may not
  suspend, terminate, or otherwise discipline or discriminate
  against a nurse who refuses to work mandatory overtime.
         SECTION 2.  Subchapter H, Chapter 301, Occupations Code, is
  amended by adding Section 301.356 to read as follows:
         Sec. 301.356.  REFUSAL OF MANDATORY OVERTIME. The refusal
  by a nurse to work mandatory overtime as authorized by Chapter 258,
  Health and Safety Code, does not constitute patient abandonment or
  neglect.
         SECTION 3.  Subsections (b), (c), and (e), Section 301.413,
  Occupations Code, are amended to read as follows:
         (b)  A person may not suspend, [or] terminate [the employment
  of], or otherwise discipline or discriminate against[,] a person
  who:
               (1)  reports, without malice, under this subchapter;
  [or]
               (2)  requests, in good faith, a nursing peer review
  committee determination under Section 303.005; or
               (3)  refuses to engage in conduct as authorized by
  Section 301.352.
         (c)  A person who reports under this subchapter, refuses to
  engage in conduct as authorized by Section 301.352, or requests a
  nursing peer review committee determination under Section 303.005
  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)  $5,000;
               (2)  exemplary damages;
               (3)  court costs; and
               (4)  reasonable attorney's fees.
         (e)  A person who brings an action under this section has the
  burden of proof. It is a rebuttable presumption that the person
  [person's employment] was suspended, [or] terminated, or otherwise
  disciplined or discriminated against for reporting under this
  subchapter, for refusing to engage in conduct as authorized by
  Section 301.352, or for requesting a peer review committee
  determination under Section 303.005 if:
               (1)  the person was suspended, [or] terminated, or
  otherwise disciplined or discriminated against within 60 days after
  the date the report, refusal, or request was made; and
               (2)  the board or a court determines that:
                     (A)  the report that is the subject of the cause of
  action was:
                           (i)  authorized or required under Section
  301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408,
  301.409, or 301.410; and
                           (ii)  made without malice;
                     (B)  the request for a peer review committee
  determination that is the subject of the cause of action was:
                           (i)  authorized under Section 303.005; and
                           (ii)  made in good faith; or
                     (C)  the refusal to engage in conduct was
  authorized by Section 301.352.
         SECTION 4.  It is not the intent of the legislature that the
  executive commissioner of the Health and Human Services Commission
  rewrite the current rules of the Department of State Health
  Services relating to nurse staffing except to the extent the
  current rules conflict with this Act.
         SECTION 5.  (a)  The executive commissioner of the Health
  and Human Services Commission shall adopt rules for the Department
  of State Health Services as required by this Act as soon as
  practicable after the effective date of this Act, but not later than
  January 1, 2010.
         (b)  The change in law made by this Act to Section 301.413,
  Occupations Code, applies to an action commenced on or after the
  effective date of this Act. An action commenced before the
  effective date of this Act is governed by the law as it existed
  immediately before the effective date of this Act, and that law is
  continued in effect for that purpose.
         SECTION 6.  This Act takes effect September 1, 2009.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 476 passed the Senate on
  March 25, 2009, by the following vote: Yeas 31, Nays 0; and that
  the Senate concurred in House amendment on May 29, 2009, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 476 passed the House, with
  amendment, on May 20, 2009, by the following vote: Yeas 137,
  Nays 0, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor