S.B. No. 993

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