HBA- MPM C.S.S.B. 1285 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1285 By: Carona Public Health 5/11/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the Board of Nurse Examiners (board) requests between 35 and 55 state-only criminal background checks per month. These investigations are conducted by the Department of Public Safety (DPS). If a person applying for a license has a criminal history in another state, the board would not be aware of this due to the limited information contained in the DPS report. The Federal Bureau of Investigation (FBI) maintains nationwide information on an individual's criminal history. However, this information must be requested by a law enforcement officer. C.S.S.B. 1285 authorizes the board to commission a peace officer to request criminal history information on individuals who apply for a nursing license from the FBI and entitles a person to a hearing if the board proposes as a result of the background check to decline, suspend, or revoke a nurse's license. Additionally, there is language in current law authorizing the board to conduct a three-year study on the mechanism for assuring the continued competency of registered nurses. This study has been concluded. C.S.S.B. 1285 authorizes the board to conduct future pilot projects for innovative applications in the regulation and practice of nursing. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Board of Nurse Examiners in SECTION 3 (Section 301.4652, Health and Safety Code) of this bill. ANALYSIS C.S.S.B. 1285 amends the Occupations Code to authorize the Board of Nurse Examiners (board) to approve pilot and demonstration research projects for innovative applications in the regulation or practice of professional nursing. The board is required to specify the procedures to be followed in applying for approval of a project. The bill specifies that approval may include a provision granting an exception to any rule adopted under the Nursing Practice Act. Approval may also include the board's granting an exception to the duty to report requirements if the project is designed to evaluate the efficacy of alternative reporting methods and provides adequate protection from registered nurses whose continued practice is a threat to public safety. The board is authorized to condition approval of a project on compliance with these provisions and rules adopted therein. The bill specifies that these provisions do not expand the meaning of professional nursing (Sec. 301.1605). The bill repeals existing law authorizing the board to develop pilot programs to evaluate the effectiveness of mechanisms 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 governing the practice of professional nursing (SECTION 7). The bill authorizes the board to recognize, prepare, or implement a continuing competency program rather than a continuing education programs for licensed nurses. The board is authorized to allow a license holder to demonstrate continued competency through mechanisms that include targeted continuing education, certification, professional portfolio, and individual competency evaluation (Sec. 301.303). C.S.S.B. 1285 authorizes the board to commission an employee who has been certified as a peace officer to enforce the Nursing Practice Act. The bill provides that the peace officer commissioned by the board has the powers, privileges, and immunities of a peace officer while carrying out occupational duties, except that the peace officer is prohibited from carrying a firearm or making an arrest (Sec. 301.4651). The bill also modifies the Code of Criminal Procedures to include these individuals in the definition of peace officer (Art. 2.12). The bill further amends the Occupations Code to authorize the board to directly request and receive criminal history record information from the Federal Bureau of Investigation (FBI). The information received is privileged and may not be disclosed to any person except under a court order or to a nursing board that is a member of the Nurse Licensure Compact. The bill entitles a person to a hearing if, because of criminal history record information obtained, the board proposes to determine that a petitioner or license applicant is ineligible for a license or to suspend or revoke a person's license or temporary license. The bill requires the board to adopt rules providing for the fair and uniform application of these provisions (Sec. 301.4652). In making a determination regarding the investigation of a complaint against a registered nurse, the bill requires the board to review the evidence to determine the extent to which any deficiency in care by the nurse was the result of deficiencies in the nurse's judgment, knowledge, training, or skill rather than other factors. In evaluating a nurse's conduct, a peer review committee is also required to review the evidence to make the same determination (Secs. 301.457 and 303.011). C.S.S.B. 1285 provides that the board is a criminal justice agency for the sole purpose of directly obtaining criminal history information maintained by the FBI. The board is required as soon as practicable after September 1, 2001 to request from the appropriate office of the United States Department of Justice a determination letter as to whether the board is recognized as a criminal justice agency for this purpose. On receipt of the letter, the executive director of the board is required to give the letter to the secretary of state for publication in the Texas Register (SECTION 8). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 1285 differs from the original by authorizing approval of a pilot and demonstration research project to include the board's granting an exception to the duty to report requirements if the project meets specific criteria (Sec. 301.1605). The substitute adds provisions that authorize the board to recognize, prepare, or implement a continuing competency program (Sec. 301.303). The substitute adds the requirement that the board and nursing peer review committees determine the extent to which any deficiency in care was the result of deficiencies in the nurse's judgment, knowledge, training, or skill rather than other factors (Secs. 301.457 and 303.011).