22 TAC §217.19, §217.20
The Board of Nurse Examiners for the State of Texas (BNE
or Board) proposes the repeal of 22 TAC §217.17, and the adoption of
a new 22 TAC §217.19, relating to Incident-Based Peer Review for nurses,
and new 22 TAC §217.20, relating to Safe Harbor Peer Review for registered
nurses (RNs). The Board is intentionally skipping §217.17 in the sequence
of the proposed new rule numbers in anticipation of future expansion of §217.
The proposed rule numbers also allow the two peer review related rules to
be sequentially numbered. This notice concerns the adoption of new §217.19
and §217.20.
In July 2000, the Board of Nurse Examiners requested that the Board's Nursing
Practice Advisory Committee (NPAC) review and recommend changes to the "parity
of counsel" section of the Peer Review Rule §217.17(c). The NPAC consists
of representatives from nursing practice and education, nursing organizations,
hospital organizations, state agencies, and consumer groups. The Board's request
of NPAC was precipitated by a request from the American Association of Nurse
Attorneys-Texas Division (TAANA). TAANA voiced concerns that a nurse being
peer reviewed is not, under current rule, afforded the opportunity to have
a support person with him/her during the actual peer review proceeding when
such support and advice may be essential to a productive peer review process.
The NPAC met five times between October 2000-October 2001 to address the Board's
charge. The NPAC also expanded its initial charge, with the Board's agreement,
to consider and review the remainder of §217.17 relating to Minimal Procedural
Standards During Peer Review. Based on these NPAC recommendations, the BNE
proposes a general overhaul of the peer review rules to add clarity and understanding
for those required to conduct nursing peer review pursuant to chapter 303
of the Texas Occupations Code.
The basic rules and concepts of peer review have been in existence since
1987. The peer review process is currently outlined in chapter 303, TEX. OCC.
CODE, with additional requirements specified in chapter 301, TEX. OCC. CODE.
The "parity of counsel" section of the rule has been in effect since 1995.
Safe Harbor Peer Review was added to the rule in 1997. The purpose of peer
review is to serve as a means of determining a nurse's adherence to the BNE
and Board of Vocational Nurse Examiners (BVNE) rules by having other nurses
in the same work setting review practice-based incidents. Under chapter 303,
licensed vocational nurses are also included in the incident-based peer review
process. The result of a peer review may be that a nurse is reported to the
BVNE or BNE if a peer review committee determines that a nurse engaged in
conduct not in compliance with the applicable statutory and regulatory standards.
Peer review may also serve as a quality improvement mechanism to identify
system problems that may contribute to patient-related errors.
The proposed rules are a culmination of NPAC's recommendations to the Board
as well as the Board's review of public comments received during the open
meeting on January 24, 2002. A summary and rationale behind the major changes
are as follows:
New proposed §217.19(a) is a slight modification to the old §217.17(a).
Sections (1) and (2) were moved to the front of the rule for more logical
flow as these sections define incident-based peer review and clarifies its
application to RNs and licensed vocational nurses (LVNs).
Proposed §217.19(a)(3) states that a facility conducting peer review
must have written policies and procedures to guide participants in fulfilling
minimum due process requirements. The amended language includes information
formerly included only in the statutes (TEX. OCC. CODE §§303.006-303.007,
301.403, 301.410) regarding confidentiality of proceedings, suspected chemical
dependency issues, the reporting of the nurse to either the BNE or BVNE, and
conducting peer review under existing facility policies.
Proposed §217.19(a)(4)(A-H) repeats the statute (TEX. OCC. CODE §303.003)
relating to peer review committee membership. A new restriction exists to
exclude "any person or person with administrative authority for personnel
decisions directly relating to the nurse." As administrative/employment decisions
are separate from licensure actions, the Board felt that the presence of administrative
or Human Resource personnel involved in disciplinary matters could have a
negative effect (intentional or unintentional) on the peer review process.
The new rule language adds the provision that the required written notice
to the nurse of both the pending peer review, as well as the peer review committee
results, must be sent by certified mail to the nurse's last known address.
The time line for the peer review meeting was extended from 30 to 45 days
to accommodate adequate notice and review time. The nurse's rights are further
extended in proposed rule language to give the nurse the same rights as the
peer review committee in relation to calling/questioning witnesses, making
opening and closing statements, and asking/responding to questions of the
committee. The last item in this newly proposed section provides the nurse
ten (10) calendar days after notice of the committee's findings to submit
a written rebuttal statement (a clarification on current rule language that
offers the nurse "reasonable opportunity" to submit a rebuttal). In addition,
any allowed disclosure of the committee's findings must include the nurse's
rebuttal as well.
Proposed §217.19(a)(5) relates to a nurse's right to representation
during a peer review proceeding and is a substantive change from the rule
as it exists currently. The current rule outlines "parity of participation
of counsel," which means that if a facility or other entity employing the
nurse has legal counsel present during the peer review proceeding, the nurse
must be allowed to have legal counsel present. In addition, the nurse's attorney
must be allowed to participate in the peer review process to the same extent
as the employing entity's attorney participates. The Board is not recommending
any changes to this provision.
The current peer review rule also provides that if the employing entity
chooses not to have their legal counsel present during the peer review process,
they may deny a nurse's request to be accompanied during the peer review proceeding
by any other person. It has been widely reported by TAANA, and by nurses reporting
to the Board that have undergone peer review, that a nurse being peer reviewed
is often placed in a position where he/she must walk into a room of facility-picked
personnel and peers, and sit by himself/herself throughout the peer review
meeting. Given the consequence of the peer review may be a report to the BNE
or BVNE for potential licensure violations, the BNE sees current peer review
practice as one of high anxiety for the nurse involved.
While the Board's mission is to protect the public through the regulation
of professional nursing, there is also sensitivity to establishing rules that
serve to promote an unbiased and non-adversarial peer review process. Toward
this end, the proposed revisions §217.19(a)(5) relating to a Nurse's
Right to Representation would permit the nurse, as part of minimum due process,
to be accompanied to the peer review proceeding by either another nurse peer
or by legal counsel. The person accompanying the nurse to the peer review
proceeding would be limited to consulting/supporting the nurse only, and he
would not be permitted to interact with the peer review committee unless facility
policy and/or the peer review committee chairperson so permitted. The term
"accompany" is used to express the intent that the nurse must attend the meeting
if he/she chooses to participate; having an alternate person attend the peer
review meeting for the nurse is not an option.
The proposed new rule language clearly limits the nurse's support to one
person only, identifies who (either a nurse peer or an attorney) may come
with the nurse to the peer review, and specifies the extent to which the guest
may participate (consultative/ supportive role to the nurse only). The proposed §217.19(a)(5)
also requires both parties (facility and nurse) to disclose seven (7) days
prior to the peer review proceeding whether they will have an attorney present.
Proposed §217.19(a)(6) relates to confidentiality. As the nature of
peer review is such that confidential patient information may often need to
be disclosed in the meeting, the person accompanying the nurse must maintain
the confidentiality of this information.
Proposed §217.19(a)(7) relates to system issues in nursing errors.
The current rule requires peer review committees to examine the nurse's knowledge,
skills, and judgment in relation to an incident. Since the 1999 report "To
Err Is Human" from the Institute of Medicine, much emphasis has been placed
on examining the entire "system" when errors occur, not just a single human
element. This proposed new language would require a committee to examine the
extent to which factors beyond the nurse's control may have contributed to
an incident. The Board believes that the peer review process is one of the
primary vehicles for examining "system" errors.
Proposed §217.19(a)(8) incorporates the statute (TEX. OCC. CODE §301.403)
into the rule language, clarifying what the peer review committee must report
to the BNE or BVNE if the committee determines that a report is warranted.
Proposed §217.19(a)(9) relates to peer review conducted in bad faith,
and prohibits such conduct by nurses.
Proposed §217.19(a)(10) attempts to specify whether or not the nurse
being peer reviewed must participate in the peer review proceeding. Both the
current and new rules would require that a nurse be notified of a pending
peer review and provided an opportunity to participate; however, this section
in the proposed new rule clarifies that the nurse may choose not to participate
in the peer review once he/she has been notified in advance as stated in the
rule.
Proposed §217.19(b) is a new section which states that a nurse's duty
to report a nurse for unsafe nursing practice is met by the nurse reporting
to a peer review committee provided certain conditions are met. If the nurse
believes that peer review was conducted in bad faith, he/she would still have
a duty to report the nurse being reviewed to the appropriate licensing Board.
Section 217.11(16) requires that a nurse report any nurse who the he/she believes
in good faith is or has engaged in unsafe nursing practice. The Board believes
that if either the reporting nurse or a nurse on the peer review committee
feels that the committee reached its decision (to not report a nurse) in "bad
faith," either or both nurses may still report the nurse being peer reviewed.
Therefore, reporting a nurse to the peer review committee does not automatically
absolve the nurse of his/her duty to report unsafe practice.
Proposed §217.20 relates to peer review initiated directly by a registered
nurse who believes in good faith that he/she is being asked to violate some
provision of the Nursing Practice Act (NPA) and Board Rules. This is known
as Safe Harbor Peer Review, and applies to RNs only. Safe Harbor Peer Review
is outlined in TEX. OCC. CODE §303.005. Because Safe Harbor does not
apply to LVNs, and because the minimal procedural standards differ between
Incident-Based Peer Review and Safe Harbor Peer Review, the BNE proposes addressing
Safe Harbor Peer Review in a separate rule, 22 TAC §217.20.
Proposed §217.20 provides that any written request for Safe Harbor
will be acceptable as long as the specified criteria are listed in the written
request. (See proposed §217.20(c)(3)(A-E)). This proposed rule also eliminates
the requirement in the current rule that only the BNE-produced form be utilized
to invoke Safe Harbor and outlines a time line for completion of Safe Harbor
Peer Review proceedings.
Kathy Thomas, Executive Director, has determined that there are no fiscal
implications for state or local government entities as a result of enforcing
or administering these rules.
Ms. Thomas has also determined that the public benefit to enforcing these
rules is to clarify the process and procedures regarding both Incident-Based
Peer Review and Safe Harbor Peer Review. There will be no effect on small
businesses. There is no anticipated increase in costs to persons required
to comply with the proposed new rules; however, there is a potential personal
cost to the RN being peer reviewed should he/she choose to retain personal
legal counsel for the peer review proceeding. If the employing entity does
not have full-time legal counsel, there is also a potential cost to the employer
should the employer choose to seek legal counsel for the peer review proceeding.
Comments on the proposed rules must be made in writing to Kathy Thomas,
Executive Director, Board of Nurse Examiners for the State of Texas, 333 Guadalupe,
Suite 3-460, Austin, Texas 78701. Comments will be accepted and considered
for 30 days following the publication of this proposal in the
Texas Register
.
The adoption of new §217.19 and §217.20 is proposed
under the authority of the Texas Occupations Code §301.151 and §301.152
which authorizes the Board of Nurse Examiners to adopt and enforce rules consistent
with its legislative authority under the Nursing Practice Act, including rules
relating to Incident-Based Peer Review and Safe Harbor Peer Review. The proposed
new rules affect the Nursing Practice Act, Texas Occupations Code §§301.403
and 301.405(c)-301.405(f), and chapter 303 as they pertain to registered nurses.
The proposed new rules also affect Licensed Vocational Nurses, as defined
in Texas Occupations Code chapter 302, and as specified in chapter 303.
§217.19.Nursing Peer Review.
(a)
Minimum Due Process For Incident-Based Peer Review
(1)
The provisions of this subsection (a) apply:
(A)
to peer review for both registered nurses (RNs) and licensed
vocational nurses (LVNs). Any reference to "nurse" is a reference to both
RNs and LVNs. See Texas Occupations Code §303.001(1-3).
(B)
only to peer review conducted for purpose of evaluating
if a RN or LVN has engaged in unacceptable nursing practice.
(2)
Texas Occupations Code, §303.001(5), states, "Peer
review means the evaluation of nursing services, the qualifications of nurses,
the quality of patient care rendered by nurses, the merits of complaints concerning
nurses and nursing care, and determinations or recommendations regarding complaints".
The peer review process is one of fact finding, analysis and study of events
by nurses in a climate of collegial problem solving focused on obtaining all
relevant information about an event. Once a decision is made that a nurse
is subject to peer review, Texas Occupations Code, §303.002(e) provides
that the nurse is entitled to minimum due process. The purpose of this Rule
217.19 is to define minimum due process, to provide guidance to facilities
in developing peer review plans, to assure that nurses have knowledge of the
plan, and to provide guidance to the peer review committee in its fact finding
process.
(3)
A facility conducting peer review shall have written policies
and procedures that, at a minimum, address:
(A)
level of participation of nurse or nurse's representative
at peer review proceeding beyond that required by Subsection (a)(4)(F) of
these rules (e.g., nurse's or representative's ability to question witnesses);
(B)
confidentiality and safeguards to prevent impermissible
disclosures including written agreement by all parties to abide by Texas Occupations
Code, §§303.006 and 303.007;
(C)
handling of cases involving nurses suspected of having
problems with chemical dependency or mental illness in accordance with the
Texas Occupations Code, §301.410;
(D)
reporting of nurses to Board of Nurse Examiners and Board
of Vocational Nurse Examiners by peer review committee in accordance with
the Texas Occupations Code, §301.403; and
(E)
effective date of changes to the policies which in no event
shall apply to peer review proceedings initiated before the change was adopted
unless agreed in writing by the nurse being reviewed.
(4)
In order to meet the minimum due process required by the
Texas Occupations Code, Chapter 303, the Nursing Peer Review Committee must:
(A)
comply with the membership and voting requirements as set
forth in Texas Occupations Code §303.003(a) - (d);
(B)
exclude from the committee any person or persons with administrative
authority for personnel decisions directly relating to the nurse;
(C)
provide written notice to the nurse in person or by certified
mail at the last known address the nurse has on file with the facility that
his/her practice is being evaluated, that the peer review committee will meet
on a specified date not sooner than 21 calendar days and not more than 45
calendar days from date of notice , unless otherwise agreed upon by the nurse
and peer review committee. Said notice must include a written copy of the
peer review plan, policies and procedures;
(D)
include in the written notice:
(i)
a description of the event(s) to be evaluated in sufficient
detail to inform the nurse of the incident, circumstances and conduct (error
or omission), including date(s), time(s), location(s), and individual(s) involved.
The patient/client shall be identified by initials or number to the extent
possible to protect confidentiality but the nurse shall be provided the name
of the patient/client;
(ii)
name, address, telephone number of contact person to receive
the nurse's response;
(E)
provide the nurse the opportunity to review, in person
or by attorney, the documents concerning the event under review, at least
15 calendar days prior to appearing before the committee;
(F)
provide the nurse the opportunity to:
(i)
submit a written statement regarding the event under review;
(ii)
call witnesses, question witnesses, and be present when
testimony or evidence is being presented;
(iii)
be provided copies of the witness list and written testimony
or evidence at least 48 hours in advance of proceeding;
(iv)
make an opening statement to the committee;
(v)
ask questions of the committee and respond to questions
of the committee; and
(vi)
make a closing statement to the committee after all evidence
is presented;
(G)
conclude its review no more than fourteen (14) calendar
days from the peer review proceeding;
(H)
provide written notice to the nurse in person or by certified
mail at the last known address the nurse has on file with the facility of
the findings of the committee within ten (10) calendar days of when the committee's
review has been completed; and
(I)
permit the nurse to file a written rebuttal statement within
ten (10) calendar days of the notice of the committee's findings and make
the statement a permanent part of the peer review record to be included whenever
the committee's findings are disclosed.
(5)
Nurse's Right To Representation. A nurse shall have a right
of representation as set out in this section. The rights set out in this section
are minimum requirements and a facility may allow the nurse more representation.
The peer review process is not a legal proceeding; therefore, rules governing
legal proceedings and admissibility of evidence do not apply and the presence
of attorneys is not required. The nurse has the right to be accompanied to
the hearing by a nurse peer or an attorney. Representatives attending the
peer review hearing must comply with the facility's peer review policies and
procedures regarding participation beyond conferring with the nurse. If either
the facility or nurse will have an attorney or representative present at the
peer review hearing in any capacity, the facility or nurse must notify the
other at least seven (7) calendar days before the hearing that they will have
an attorney or representative attending the hearing and in what capacity.
Notwithstanding any other provisions of these rules, if an attorney representing
the facility or peer review committee is present at the peer review hearing
in any capacity, including serving as a member of the peer review committee,
the nurse is entitled to "parity of participation of counsel." "Parity of
participation of counsel" means that the nurse's attorney is able to participate
to the same extent and level as the facility's attorney; e.g., if the facility's
attorney can question witnesses, the nurse's attorney must have the same right.
(6)
Confidentiality of information presented to and/or considered
by the peer review committee shall be maintained and not disclosed except
as provided by Texas Occupations Code §§303.006 and 303.007. Disclosure/discussion
by a nurse with the nurse's attorney is proper because the attorney is bound
to the same confidentiality requirements as the nurse.
(7)
In evaluating a nurse's conduct, the committee shall 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 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.
(8)
If a peer review committee finds that a nurse has engaged
in conduct reportable to the Board of Nurse Examiners or Board of Vocational
Nurse Examiners, the committee's report shall include:
(A)
a description of any corrective action taken against the
nurse and
(B)
a statement as to whether the committee recommends that
formal disciplinary action be taken against the nurse.
(9)
Texas Occupations Code, Chapter 303, requires that peer
review be conducted in good faith. A nurse who knowingly participates in peer
review in bad faith is subject to disciplinary action by the Board under the
Texas Occupations Code, §301.452(b). Examples of bad faith are taking
action against a nurse without providing the nurse the rights provided by
these rules or taking action based on personal animosity towards the nurse.
(10)
A nurse whose practice is being evaluated may properly
choose not to participate in the proceeding after the nurse has been notified
under proposed Rule §217.19(a)(4)(C). Texas Occupations Code 303.002(d)
prohibits nullifying by contract any right a nurse has under the peer review
process.
(b)
Effect of RN Reporting to Peer Review Committee. If a registered
nurse reports a nurse to a nursing peer review committee for conduct that
the nurse has a duty to report to the Board, the report to the committee will
satisfy the nurse's duty to report to the Board provided that the following
conditions are met:
(1)
The peer review committee shall report the nurse to the
Board, if it finds the nurse engaged in reportable conduct. If the peer review
committee finds that the conduct constitutes a minor incident as defined by
Rule §217.16 (relating to reporting of minor incidents), it shall report
in accordance with the requirements of that rule;
(2)
The reporting nurse shall be notified of the peer review
committee's findings and shall be subject to Texas Occupations Code, §303.006;
and
(3)
the reporting nurse accepts in good faith the findings
of the peer review committee.
§217.20. Safe Harbor Peer Review for RNs.
(a)
Texas Occupations Code, §303.005 requires a person
who regularly employs, hires or contracts for the services of at least ten
(10) RNs to permit a RN to request Peer Review when requested to engage in
conduct that the RN believes is in violation of his/her duty to a patient.
"Duty to a patient" means conduct, including administrative decisions directly
affecting a registered RN's ability to comply with that duty, required by
standards of practice or professional conduct adopted by the Board. A RN requesting
safe harbor in compliance with §303.005 and these rules is afforded the
protections outlined in §§301.352 and 303.005(c).
(b)
Minimum Due Process The minimum due process requirements
of Rule §217.19 do not apply to Safe Harbor Peer Review except in those
circumstances outlined in Rule §217.20(e)(2). The RN requesting safe
harbor shall be permitted to:
(1)
appear before the committee;
(2)
ask questions and respond to questions of the committee;
and
(3)
make a verbal and/or written statement to explain why he
or she believes the requested conduct would have violated a RN's duty to a
patient.
(c)
Safe Harbor Protections To activate protections outlined
in Texas Occupations Code §301.352 and §303.005, the RN shall:
(1)
Invoke Safe Harbor in good faith. "Good faith" means that
the RN believes that the requested conduct violates a RN's duty to a patient
and that belief is one a reasonable RN could hold.
(2)
At the time the RN is requested to engage in the activity,
notify the supervisor making the assignment that the RN is invoking Safe Harbor.
(3)
At the time of supervisor notification, also submit a written
request for Safe Harbor utilizing the Safe Harbor form provided on the Board's
web site or on a form that includes a minimum of the following information:
(A)
the conduct assigned or requested, including the name and
title of the person making the assignment or request;
(B)
a description of the practice setting (e.g., the RN's responsibilities,
resources available, extenuating or contributing circumstances impacting the
situation):
(C)
a detailed description of how the conduct would have violated
the RN's duty to a patient or any other provision of the Nursing Practice
Act and Board Rules. If possible, reference the specific standard (Rule §217.11)
or other section of the Nursing Practice Act and/or Board rules the RN believes
would have been violated;
(D)
any other copies of pertinent documentation available at
the time. Additional documents may be submitted to the committee when available
at a later time; and
(E)
the RN's name, title, and relationship to the supervisor
making the assignment or request.
(d)
Safe Harbor Processes
(1)
The following timelines shall be followed:
(A)
the peer review committee shall complete its review and
notify the nurse administrator within 14 days of when the RN requested Safe
Harbor;
(B)
within 48 hours of receiving the committee's determination,
the nurse administrator shall review these findings and notify the RN requesting
peer review of both the committee's determination and whether the administrator
believes in good faith that the committee's findings are correct or incorrect.
(2)
If Safe Harbor was invoked to question the medical reasonableness
of a physician's order, the medical staff or medical director shall determine
whether the order was reasonable. Consideration for patient safety should
contribute to the timeline for implementing a decision, but shall not exceed
the time limits specified in this section.
(3)
The RN invoking Safe Harbor is responsible for keeping
a copy of the request for Safe Harbor, and shall be given a copy of the committee's
determination and the nurse administrator's review, if separate from the Safe
Harbor form.
(e)
Exclusions to Safe Harbor Protections
(1)
The protections provided under subsection (c) do not apply
to the RN who invokes Safe Harbor in bad faith, or engages in activity unrelated
to the reason for the request for Safe Harbor and that constitutes reportable
misconduct of a professional nurse, even if this activity occurs during the
time a peer review committee is considering the RN's request for Safe Harbor.
(2)
In addition to consideration of the RN's request for Safe
Harbor, the peer review committee may consider whether an exclusion to Safe
Harbor peer review applies, and evaluate whether a professional nurse has
engaged in reportable misconduct provided such review is conducted in accordance
with the requirements of Rule §217.19.
(3)
If the peer review committee determines that a RN's conduct
was not related to the RN's request for Safe Harbor and would otherwise constitute
misconduct reportable to the Board, the committee shall report the RN to the
Board as required in Texas Occupations Code §301.403.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 21, 2002.
TRD-200201060
Katherine A. Thomas, MN, RN
Executive Director
Board of Nurse Examiners
Earliest possible date of adoption: April 7, 2002
For further information, please call: (512) 305-6811