22 TAC §217.19, §217.20
The Board of Nurse Examiners adopts new rules 217.19 and
217.20 of 22 Texas Administrative Code with changes. The proposed text was
published in the March 8, 2002, issue of the
Texas
Register
(27 TexReg 1641). The rules are related to Peer Review and
Safe Harbor Peer Review, respectively. The Board's Nursing Practice Advisory
Committee (NPAC) was charged by the Board in July 2000 to review and recommend
changes to the "parity of counsel" section of the Peer Review rule 217.17(c).
The repeal of current rule 217.17 is being adopted concomitantly with the
adoption of these new rules. The NPAC consists of representatives from nursing
practice and education, nursing organizations, hospital organizations, state
agencies, and consumer groups. The Board's charge was the result of a request
by the Association of Nurse Attorneys Texas Division (TAANA). TAANA voiced
concerns that a registered 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. The NPAC met numerous times between October
2000-October 2001 to address the Board's charge, as well as to review the
remainder of rule 217.17, Minimal Procedural Standards During Peer Review.
This cooperative process of bringing together representatives of the Board
and the various affected interested groups in revising rule 217.17 and ultimately
repealing it was not without disagreement. However, the NPAC approved rule
language which resulted in the Board's vote to propose the publication for
comment of new rules 217.19 and 217.20. The comments received echoed the disagreement
voiced by NPAC during the negotiated rule making meetings.
The Board adopts new rules 217.19 and 217.20 with some clarifying changes
to the new sections. The General Counsel for the Board advises that the changes
in the adopted rules affect no new persons, entities, or subjects. Accordingly,
republication of the adopted sections as proposed amendments is not required.
No one commented on the repeal of rule 217.17. The following entities and
individuals furnished comments on the proposed new rules 217.19 and 217.20:
Luisa Acosta, RN, La Feria; Maria Alamia, RN, Edinburg; Georgena Allen, RN,
San Benito; Arlington Memorial Hospital, by Nancy B. Jones, RN, MSN; Raymundo
Arredondo, RN, Laredo; Doreen Z. Bartlett, RN, JD, individually and as President
of Association of Nurse Attorneys Texas Division (TAANA); Guadalupe Chapa,
Jr., RN, BSN, Edinburg; Betty Condray, RN, Mission; Ruth Coronado, RN, Donna;
Davis & Davis, C. Dean Davis; Donna Hale, RN, on behalf of East Texas
Medical Center (ETMC) Athens; and on behalf of Judy Peterson, RN, ETMC Carthage;
Rhonda Strate, RN, ETMC Clarksville; Linda Tate, RN, ETMC Crockett; John Reeves,
RN, ETMC Fairville; Pat Poole, RN, ETMC Jacksonville; Anitha Sanderson, RN,
ETMC Mt. Vernon; Paula Robison, RN, ETMC Pittsburg; Bobbie Laughlin, RN, ETMC
Quitman; Claudia Engberg, RN, ETMC Trinity; Diana Espinoza, RN, Laredo; Carlos
Garza, RN, Mercedes; Patricia Giovannelli, RN, Pharr; Maria Gonzales, RN,
Harlingen; Jerry D. Adair, on behalf of Good Shepherd Medical Center; Lillie
Graham, RN, McAllen; Louise Baldwin, RN, on behalf of Harris Methodist Continued
Care Hospital; Nancy Pittman, CNO, & Ronald Dorris, President on behalf
of Harris Methodist Erath County; Harris Methodist Fort Worth Hospital, Phyllis
Norman, CNO & Barclay E. Berdan, President; Harris Methodist - HEB Hospital,
Bob Lumpkins, CNO & Jack McCabe, President and CEO; Harris Methodist Southwest,
Charlotte Pierce, RN/MS & Stansel Harvey, President; Harris Methodist
Walls Regional Hospital, Beth Herrick, RN & Brent Magers, FACHE; Hendrick
Health System, Rick DeFoore; Harris Methodist Continued Care Hospital, Louise
Baldwin, RN; Hill Country Memorial Hospital, Lavonne E. Hall, RN; Hillcrest,
Cyndy Dunlap, RN; JSP Health Network, Trudy Sanders, RN; Janet Lyssy, RN,
San Antonio; McAllen Medical Center, Linda K. Daum, RN; Taralynn R. Mackay,
RN, JD; Medical Center at Lancaster, Jeff Grauerholz, RN, CEN, CCRN; Northwest
Texas Healthcare System, Vicky Brockman; Northwest Texas Healthcare System,
Deborah Casida, RN, BSN; Northwest Texas Healthcare System, Moody Chisholm,
CEO; Northwest Texas Healthcare System; Valerie Kiper, MSN, RN, CNA; Palo
Pinto General Hospital, Patricia J. Dorris, CEO; Permian General Hospital,
Kendra Slatton, RN, MSN, CDE; Presbyterian Hospital of Dallas, Martha Steinbauer,
MS, RN, CNAA; Presbyterian Hospital of Greenville, Renea Decker, RN; Presbyterian
Hospital of Greenville, Sylvia Walters, RN, CCRN; Presbyterian Hospital of
Plano, Mike Evans, RN, MS, & Phil Wentworth, FACHE; Presbyterian Hospital
of Winnsboro, Janet Haley, RN, BSN & Dan Noteware; St. David's Medical
Center, Bonnie Clipper Salzberg; Alexis A. Schultz, RN, CEN; Scott & White,
Valerie Harger, RN, MA, CNOR; Patricia Sepulveda RN, Weslaco; Irene Tello,
San Antonio; Texas Association for Home Care, Rachel Hammon, RN, BSN Texas
Hospital Association (THA), Elizabeth N. Sjoberg, RN, JD; Texas Nurses Association,
James H. Willmann, JD; Donella Tucker, RNC, MSN; Wadley Regional Medical Center,
Sheila Temples, RN, CNOR; Wadley Regional Medical Center, Debra J. Wright,
MS, RN; Zale Lipshy University Hospital, Greg Grantham, RN, MS.
The Board received many comments in favor of the rule in totality. The
majority of comments received in opposition to the rule did not object to
most of the rule, but are focused on three selective provisions: rule 217.19(a)(5)
to the extent it allows for an attorney consultation during peer review; rule
217.19(a)(7) which requires peer review take into account any system errors;
and rule 217.19 (b) which allows for an RN's continuing duty to report conduct
to the BNE if a RN believes there is a "bad faith" peer review.
Two nurse attorneys, Doreen Bartlett, RN, JD, and Taralynn R. Mackay, RN,
JD, commented in support of the new rules 217.19 and 217.20. Ms. Bartlett,
as president of the TAANA, stated that her organization supported the repeal
and adoption of the new sections. Additionally, sixteen individual nurses
who did not identify themselves as affiliated with a particular hospital or
organization also voiced support for the adoption of the new rules without
amendment. Ms. Bartlett stated that she supported the proposed changes to
22 TAC §§217.17, 217.19, and 217.20, but felt the rules should go
further, and allow attorneys to speak on behalf of their nurse client's, as
well as to be allowed by rule to question witnesses and answer questions.
Based on the Board's initial charge back in July 2000 to review the "parity
of counsel" in peer review, the NPAC extensively discussed the issue of allowing
attorney representation in peer review with expanded authority of advocating
with the nurse. The NPAC believed and the Board agreed that the purpose and
focus of Peer Review is to be an advisory committee on the nurse's practice,
which requires interaction between the nurse and the committee. The Board
does not wish the peer review process to become attorney driven. To preclude
the peer review process from becoming "attorney run," it is the Board's position
that an attorney be permitted to accompany the nurse in a consultative role
only, with the exception of the "parity" concept in regard to the nurse's
attorney having the same privileges during the meeting as the facility's attorney.
The comments received from the individual nurses primarily supported the
addition to the new rule which allows a nurse peer or attorney to accompany
the reviewed nurse. Some commented that having a lawyer at your side would
put you more at ease; therefore, allowing you to participate better. Others
supported allowing someone to accompany a RN to peer reviews even though the
employer entity may choose not to have legal counsel present. One commenter
felt that is was not too much to ask to have a support person, even if that
person is an attorney, present during a potentially career changing event.
The Board agrees with these comments and believes they capsulize the intent
behind the adoption of the new rules 217.19 and 217.20. Presbyterian Hospital
of Greenville, Sylvia Walters, RN, CCRN, and Texas Hospital Association, Elizabeth
N. Sjoberg, RN, JD, both support "nurse peer" representation at the peer review
proceeding. However, as discussed below, the allowance for attorney representation
in peer review garnered the most negative comments.
The Board received the identical negative comments from eleven different
hospital facilities concerning adopted subsections 217.19(a)(7) and 217.19(b).
With regard to section 217.19(a)(7) (consideration of mitigating factors
in error for which RN is being Peer Reviewed), the facilities' presidents,
nurses, and chief nursing officers voiced that peer review will become the
primary vehicle for "system" error identification and process improvement.
Reference is made to the JCAHO requirement for root cause analysis when serious
errors or unexpected outcomes occur. Facilities echoed the sentiment that
"comprehensive review for system errors is not appropriate for peer review
proceedings." The comments stated that review of systems errors should occur
before the peer review committee convenes and not be a part of peer review
in order to prevent the peer review committee from becoming mired in systems
analysis.
The Board disagrees with removing §217.19(a)(7) from the adopted rule.
The Board would note that the addition of §217.19(a)(7) to the Peer Review
Rule complements language already in the Minor Incidents Rule §217.16(c).
Both of the sections of these separate rules relate to looking at potential
"system" errors and their relationship to the nurse's actions. Neither are
stated nor intended to replace the process improvement method of a facility.
The BNE believes that a fair incident based peer review must consider systems
and the potential for system errors if it is to adequately review incident
based nursing practice. The peer review is not intended to be a substitute
for the exhaustive root cause analysis requirements of JCAHO or other quality
assurance mechanisms utilized within the facilities. Further, the BNE's joint
Position Statement 15.17 with the Board of Pharmacy regarding Medication Errors
and looking at system factors as well as individual actions further supports
not limiting error investigations to the person who committed the error.
With regard to section 217.19(b) relating to a nurse's responsibility to
report to the BNE if the nurse believes the peer review committee acted in
"bad faith," the facilities stated opposition to the rule for reason that
the nurse would be making an uninformed decision (i.e. would not know outcome
of peer review) regarding whether or not the peer review committee acted in
"good faith" in making its decision. The facilities also want determination
criterion for "bad faith" and "good faith."
The Board disagrees with removing §217.19(b) from the adopted rule.
The main purpose of this section is to alleviate the need for a nurse to duplicate
reporting to a peer review and to the Board. The concept of eliminating duplicative
reporting was supported by the commenters. The Board would note, however,
that RNs in Texas are mandated to report any RN whom they believe to be in
violation of the NPA or Board Rules [Tex. Occ. Code §301.402 and 22 Tex.
Admin. Code §217.11(16)]. Because there may be good faith disagreements
or regarding reportable conduct, a report to a peer review will satisfy the
mandatory reporting requirement. However, the mandatory reporting statutes
vest the Board with jurisdiction to investigate practice errors. It would
be contrary to the Board's enabling legislation to adopt a rule that would
create a barrier to reporting to the Board when a nurse has reasonable cause
to believe a reportable act has occurred. Contrary to the commenters assertions
that the reporting nurse is uninformed of the peer review proceedings, the
nurse making the initial report to the peer review committee will know the
outcome/decision as required by §217.19(b)(2).
The Board also understands the commenters request for "determination criterion"
for what constitutes bad faith. However, as with the NPA and other rules,
the RN must use his/her "Professional Judgment" in determining if he/she feels
the PRC acted in a reasonable manner. Differences of opinion are a natural
consequence in nursing. As with all other aspects of the NPA and Board rules,
the proposed rule on peer review, including §217.19(b), is written broadly
to apply to nursing practice in any setting. It would be impossible for the
BNE or any committee to devise a complete list of criterion by which good
faith or bad faith could be measured in any given setting.
The eleven earlier noted hospital facilities as well as an additional 21
facilities commented in opposition to the adoption of Section 217.19(a)(5),
to the extent it allows for attorney appearance with the reported nurse. All
32 facilities agree that Peer review should remain a nursing function and
not a legal one. Texas Hospital Association, Elizabeth Sjoberg, RN, JD, and
C. Dean Davis echoed the opposition to an attorney accompanying the nurse.
The commenters share the concern that peer review will turn into a legal proceeding
should attorneys be permitted to "represent" a nurse and would allow nursing
evaluation to be decided in an adversarial process. The commenters believe
that "representation" by an attorney will not fix the problem of peer review
that is either not being done, or not being done correctly by some facilities.
The commenters emphasize that the peer review process is not a hearing or
a substitute for a legal procedure. There is wide spread concern among the
commenters that attorneys will take control of the peer review committee and
dictate how the meeting will proceed. In addition, an attorney's presence
can impede the "fact-finding" process as the attorney could recommend to the
nurse not to respond to questions posed during the proceeding.
The Board disagrees with the request to remove the right to have an attorney
accompany the nurse from adopted Rule 217.19(a)(5). NPAC found that under
the former rule the nurse was forced to walk into his/her peer review alone
without any type of support person. It was the consensus that attorney involvement,
in a consulting position only, would not damage the peer review process or
its mission. Section 217.19(a)(5) states in part "...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... Representatives attending the peer review hearing must comply
with the facility's peer review policies and procedures regarding participation
beyond conferring with the nurse." This process should not interfere with
peer review particularly when compared to the Board's similar experience with
attorneys in disciplinary proceedings who have a much more expanded role.
It has been the long-standing Informal Hearing process that RNs are permitted
to have an attorney present during a meeting to discuss the RN's practice.
Only a small percentage of nurses avail themselves of legal representation,
even though the outcome of these meetings may be an Agreed Order placing certain
sanctions on the RN's license. The experience of the BNE with legal representation
of nurses has been mostly positive. Given this historical basis, it is quite
feasible that the strong concern and opposition for this proposed change in
the peer review rule will ultimately be less significant than stated by the
facilities and Texas Hospital Association. That is not to say that, at some
point in the future, the Board might not once again look into amending the
peer review rule toward the goal of continuous process improvement, should
it be necessary for any reason.
Nothing about allowing an attorney to attend a peer review meeting as proposed
in rule 217.19 changes the focus of peer review from being a nursing-driven
and directed process. To the contrary, the proposed language specifically
safeguards this focus.
Other reasons for objecting to attorney presence in peer review came from
22 facilities who stated that Nurses serve voluntarily on peer review committees
and permitting the nurse undergoing peer review to be accompanied by an attorney
will intimidate the witnesses and nurses serving on the committee. Further,
the commenters believe attorneys will deter nurses from volunteering to serve
on peer review committees and/or reporting nurses to peer review as a "litigious
environment" will exist. Facilities and nurses may simply choose to report
nurses directly to the BNE, thus increasing the BNE's workload.
In response to this concern, the BNE would note that the NPAC committee
discussed the issue of a "litigious environment" extensively in developing
the rule to prevent Peer Review from turning into a legal process. Section
217.19(a)(5) limits the person accompanying the nurse to the peer review proceeding
(either another nurse or an attorney) to consulting/supporting the nurse only,
unless facility policy or the PRC chairperson permits participation beyond
consulting with the RN, or unless the facility's attorney is present and participates
in the PRC meeting (in which case "parity of counsel" applies). One of the
ways the BNE fulfills its mission to protect the public through the regulation
of professional nursing is to investigate and discipline violators. The BNE
believes the workload concerns are overstated. Facility initiated peer review
has existed since 1987 and throughout that time period, mandatory reporting
of RNs suspected to have violated any portion of the NPA or Rules has also
been in place. Therefore, the BNE's workload in relation to whether or not
a nurse is peer reviewed is not within the purview of this rule.
Ten facilities and C. Dean Davis, an attorney who often represents facilities,
stated that they were concerned that permitting the nurse undergoing peer
review to be accompanied by an attorney will require the facility to employ
the services of an attorney in order to help ensure the fairness of the proceeding.
They emphasized that smaller hospitals do not have in-house counsel so this
would create a burden on these facilities as a rural area may not have access
to an attorney with peer review experience.
In response, the Board believes that this concern may be overstated. The
Board would note that few nurses obtain legal counsel when coming before the
BNE Informal Hearing process. The BNE does not envision or anticipate overwhelming
cost associated with the rule change allowing attorney presence. The determination
of whether to have an attorney is voluntary, both for the RN and the facility.
The rule does not require attorney presence. The facility may choose not to
have an attorney present since the RN's attorney is present for consultation
to the nurse only and not as advocate. The lack of access to an attorney for
the rural hospitals would appear to be shared by the RN. Therefore, the Board
does not envision this dilemma as a real threat to facilities. Lastly, the
Board continues to note that nothing in the adopted rule allows an attorney
to do anything but consult with the RN during the peer review meeting. As
peer review is not a legal proceeding and attorneys are not mandatory for
any party involved, the cost concerns do not appear to be an overwhelming
risk.
Twenty facilities responded that instead of attorney involvement, education
and training for employers and their peer review committees are better solutions.
They note that the BNE should offer additional education for nurses and hospitals
regarding the peer review process and not change the rules.
In response, the BNE already offers peer review education with all jurisprudence
workshops (conducted on almost a monthly basis across the state.) Additional
information on peer review is available on the BNE web page, and nursing consultants
are available on an on-going basis for phone call and e-mail questions related
to peer review. Educational workshops will be a natural result of the adoption
of the new peer review rules. However, the BNE is not the institution to provide
educational training in order to improve the peer review process for it has
neither the staff nor the budget to support doing facility-to-facility training,
as suggested by a few respondents.
Eight facilities stated that attorney participation on behalf of the nurse
undergoing peer review penalizes those facilities that are compliant with
the laws and regulations. The BNE should deal with these non-compliant facilities
directly, instead of changing the rules and "punishing" everyone.
The Board disagrees. The new rule revisions were discussed at length by
members of NPAC at multiple meetings. They were not designed to penalize institutions
but to improve understanding of the process and the process itself. The facilities'
complaints do not appear to be based on attorney participation in peer review
because attorneys generally have not been allowed to participate. The BNE
has not experienced the concerns expressed in these comments when it has examined
the very analogous Informal Conference procedures which have involved attorneys
representing nurses for many years.
Four facilities have noted that the Texas Department of Health (TDH) adopted
revisions to the Hospital Licensing Rules related to nurse staffing. The commenters
note that the nurse staffing rules specifically state that hospitals must
comply with both incident-based and safe harbor peer review. The commenters
suggest that because the TDH revised staffing rules which place greater emphasis
on peer review, the BNE rules on peer review do not need to be revised.
The Board disagrees with the conclusion that the new TDH rules make changes
to the BNE peer review rules moot. The new TDH rules cannot substitute for
the BNE's duty to define the minimum due process afforded by peer review.
The rule changes are a result of nearly two years of negotiated rule making
designed by interested parties to improve peer review. To suggest that the
TDH rules affecting facilities has improved the peer review process studied
by the BNE and stake holders who have voted for new BNE rules is not legally
supportable.
Rachel Hammon, RN, BSN, Texas Association for Home Care, commented that
in relation to proposed §217.19(a)(5), she feels that both parties should
have the right to object to the presence of an attorney for either side (voicing
the concern that the facility may choose to have one, and the RN may choose
not to have one). Her concern is that the RN may be at a disadvantage if the
facility has an attorney but the RN does not.
The Board would note that the suggested change would result in return to
the "parity of counsel" concept rejected by NPAC. A major focus of NPAC in
developing the revised peer review rules was to eliminate the possibility
of a RN being forced to attend a PRC without any type of support person. Under
the former rule, facilities could dictate whether or not the RN may bring
anyone with them into the PRC meeting. Under Ms. Hammon's suggestion, a RN's
request to bring an attorney could be vetoed.
Greg Grantham RN, MS, CNO, Zale Lipshy University Hospital, commented that
the attorney option for the RN would lead to more reporting to the Board.
His comments suggested that the BNE was attempting to substitute attorneys
as the only individuals capable of determining the due process requirements
of peer review.
The Board disagrees with Mr. Grantham's characterization of the Rules.
The adopted rules do not abdicate the decision-making process in peer review
to non-nurses, including an attorney accompanying a nurse to a PR meeting.
Additionally, the Board has not seen any evidence to support the suggestion
that a PRC would report a RN who is represented more often than if they appear
without counsel.
No new changes in adopted rules 217.19 and 217.20 were adopted in response
to the above comments. Approximately ten comments were received from the Texas
Nurses Association (TNA), and minor, non-substantive changes to the rules
were adopted by the Board in response to some of these proposed changes in
the language. These comments and BNE responses are as follows:
TNA believes individual members of the peer review committee or other participants
in the process should be prohibited from reporting the nurse being reviewed
to the BNE or BVNE if that person's knowledge about the incident consists
entirely of what the person learned from peer review. TNA recommended that
the rule should require that a member of the peer review committee or any
other participant may not disclose, including reporting the information to
the Board, any information learned about a nurse's conduct as a result of
participation in the peer review process except as permitted by sections 303.006
and 303.007, Texas Occupations Code, relating to confidentiality and limited
disclosure of peer review information.
The Board believes that TNA's suggestion would conflict with the mandatory
reporting statutes contained generally in Texas Occupations Code §§301.401
- .419. The RN has a mandatory duty to report violations that the RN has "reasonable
cause" to believe have been committed under Texas Occupations Code §301.402(b).
The mandatory duty requirements do not require that the RN have personal knowledge
of the reportable conduct. The Board, therefore, disagrees with the inclusion
of the TNA suggested change.
TNA suggested that the individual responsible for nursing services, the
chief nursing officer (CNO) should be made explicitly responsible for being
knowledgeable about peer review requirements and for taking reasonable steps
to assure that peer review is implemented in accordance with the law and the
BNE rules. TNA suggests that this clarifying language be included in both
rules 217.19 and 217.20.
The Board agrees that it is the responsibility of the Chief Nursing Officer
(CNO) to reasonably know the steps of peer review and assure peer review is
implemented properly. The Board would view the inclusion of this paragraph
as a non-substantive change given that RNs who conduct peer review are required
to do so lawfully under the peer review rules and clarifying this intention
by inclusion of the suggested TNA language is beneficial. Further, the added
language will complement the Texas Department of Health staffing rules recently
adopted [25 TAC §133.41(o)(1)(C)] which require similar adherence. The
BNE therefore has agreed to add that "the chief nursing officer of a facility
is responsible for knowing the requirements of this Rule and for taking reasonable
steps to assure that peer review is implemented and conducted in compliance
with this Rule" and the definition that "the CNO is the registered nurse who
is administratively responsible for nursing services" as new subsections 217.19(a)(11)
and 217.20(f).
TNA also supports that the rules provide that a registered nurse participating
in peer review in bad faith is subject to disciplinary action by the Board.
However, TNA notes that the rules do not require reporting the nurse to the
board. TNA believes an RN who has reason to believe a nurse committee member
is participating in peer review in bad faith should be required to report
the nurse to the CNO, peer review, or Board. TNA believes an RN who has reason
to believe a peer review committee is operating in bad faith should be required
to report the CNO, the committee chair and member to the Board and the sponsoring
facility to its licensing agency. TNA recommends adding language that if a
registered nurse who has reason to believe that a peer review committee is
not acting in good faith the RN shall report the CNO and peer review committee
chair to the Board and the facility to its licensing agency. TNA continues
to hear anecdotal accounts of incident-based peer review not being conducted
in good faith and being used simply to "rubber stamp" previously-made personnel
or administrative decisions. This is clearly bad faith and nurses knowingly
participating in such peer reviews should be reported to the Board.
The Board agrees in part with the TNA comment, but takes exception to part
of the suggested language change. Rule language regarding bad faith and taking
action on the RN's license is already present in the proposed rule 217.19(a)(9).
The Board would decline to further elaborate on methods of reporting as suggested
by the TNA language. The Board agrees that adding similar bad faith language
to Safe Harbor (if PR done in bad faith) is a reasonable request as Safe Harbor
is now a separate rule and therefore has decided to add this same language
as §217.20(g).
The proposed rule provides that an RN's reporting to peer review will satisfy
the RN's duty to report to the Board. TNA supports this change. However, as
written, TNA believes that the rule does not permit the RN to know conclusively
at the time she/he reports to peer review that such reporting has satisfied
the RN's duty to report to the Board. TNA believes that the rule should be
written so the RN will know, at the time of reporting to the peer review committee,
that her/his mandatory reporting duty has been satisfied. TNA recommends that
the proposed rules be rewritten to provide that the report to the committee
will satisfy the nurse's duty to report to the Board "unless the RN has reason
to believe the peer review committee will not conduct peer review in good
faith." TNA further suggests that the rule be modified to require the peer
review committee's action be reported to the reporting RN with the inclusion
of its findings, analysis and a statement that the RN has a right to report
conduct to the Board if the RN "believes the peer review committee did not
take appropriate action."
BNE disagrees with the addition of these changes to §217.19(b). The
Board feels that the RN cannot know in advance whether or not the peer review
will be done in "good faith." As discussed by NPAC, during consideration of
this issue it was noted that, except in rare cases, the timing of a RN reporting
a practice violation of another RN is not so critical that waiting until peer
review has been concluded and the result given to the reporting RN would be
detrimental to the public or to the BNE's investigation of the suspected practice
violation. The BNE disagrees with the TNA suggestions and feels the current
language in rule 217.19(b) should remain.
Additionally, TNA comments that if an RN engages in reportable conduct
while safe harbor peer review is pending that conduct will either be related
or unrelated to the safe harbor request. If related, TNA believes the RN should
not be subject to discipline by either the Board or employer for that conduct.
On the other hand, if the conduct is unrelated, the RN should be held accountable.
TNA believes the Rule must set up a process to assure this result is achieved,
but notes that its suggested procedure turns out to be somewhat complicated.
The BNE disagrees with the proposed suggestions by TNA. The Board believes
that the adopted wording in §217.20(e) is clear and concise, and that
nothing is gained by amending this section of the rule as requested by TNA.
TNA has stated that it is concerned that the proposed rules will permit
RNs to request safe harbor peer review on a form other than the BNE-developed
form on its web site. Although, TNA supports subsection 217.20(c), TNA notes
that the subsection does not take the parties through a process outlined in
the BNE-developed safe harbor form. TNA believes the BNE-developed form must
be used to assure satisfactory compliance with and completion of the safe
harbor peer review process. Consequently, TNA recommends language be added
to the rule 217.20(c) requiring that if the BNE form is not used to make initial
request, that the RN complete the BNE-developed form within 48 hours.
The BNE agrees that the process outlined on the form helps assure uniformity
in the Safe Harbor process; however, to place a requirement for form use in
the rule does not remove this current burden from the nurse invoking Safe
Harbor. The Board does not agree that implementing TNA's suggestion of requiring
the form be filled out within 48 hours will assure that the safe harbor process
is appropriately followed. Therefore, the Board recommends that the following
alternate language be adopted to incorporate the concept of the importance
of following the procedure outlined in-depth on the Safe Harbor form by adding
subsection 217.20(c)(4) which states: "If the RN does not submit the initial
request for Safe Harbor using the form on the BNE web site, the facility and
RN shall adhere to the Safe Harbor process as outlined on the BNE form." As
the above recommended language is simply a clarification of the process, staff
does not feel this constitutes a substantive change. The Board believes this
clarification is helpful and does not constitute a substantive change in the
adopted rule requiring republication.
TNA believes that §303.005 requires that Safe Harbor Peer Review be
conducted in accordance with the provisions of chapter 303 that govern peer
review generally. This includes the provisions relating to confidentiality.
Consequently, TNA recommends rule 217.20 include a statement that the peer
review committee and participants shall comply with the confidentiality requirements
of Texas Occupation Code §§303.006 and 303.007 relating to confidentiality
and limited disclosure of peer review information.
The Board agrees with TNA that this language is not part of the proposed
rule, but that it was the intent of NPAC that Safe Harbor adhere to the same
requirements related to confidentiality. The reference to confidentiality
was omitted when the Board approved the proposal of the new Safe Harbor rule
as §217.20. Therefore, the BNE agrees to add "that the peer review committee
and participants shall comply with the confidentiality requirements of Texas
Occupation Code §§303.006 and 303.007 relating to confidentiality
and limited disclosure of peer review information" as subsection 217.20(h).
The Board believes that this is a non- substantive change which would require
republication.
TNA has commented that even though the law mandates safe harbor peer review
be available only to RNs practicing in facilities utilizing ten or more RNs,
TNA believes employers utilizing fewer RNs should be able to implement safe
harbor peer review on a voluntary basis. If they do, they should have to comply
with the BNE rule governing safe harbor peer review.
The Board responds that nothing in the current or proposed rule precludes
entities who utilize fewer than ten RNs from voluntarily participating in
safe harbor peer review. Though this would add some degree of clarification
to the rule were the above language added, staff feels this would constitute
a substantive change because it would make parties responsible for rule compliance
who would not have had notice prior to adoption of the rule. Any substantive
changes to the proposed rule language would require a re-publication in the
Texas Register. The Board does not feel the implementation gained would off-set
the cost or effort of re-publishing the rule, and therefore, recommends not
adopting this suggested language at present. The BNE agrees to re-explore
this concern in future revisions of this rule.
Additionally, TNA believes that the peer review rules should clearly state
whether the proposed rules for incident-based peer review apply when a peer
review committee, under rule 217.16, reviews an RN with three minor incidents
to determine if he/she should be reported to the Board. In its recommended
changes, TNA has added language making the rule applicable to peer review
relating to minor incidents. However, TNA is not completely convinced that
this is the best policy decision.
The Board does not see a need for additional clarification on this issue.
Rule 217.16(d)(4) already states the conditions necessary for minor incidents
to go before a peer review committee. The BNE does not agree to adopt additional
language. The BNE may re-explore this concern in future revisions of this
rule.
TNA believes that peer review conducted in relation to Texas Occupations
Code §301.352 should be conducted in a manner similar to safe harbor
peer review. To accomplish this, TNA recommends adding language to the safe
harbor peer review rule clarifying the procedures for §301.352 peer review.
The Board agrees and disagrees with this suggestion. NPA §301.352
does not require Safe Harbor, nor does the facility have to convene a PRC
to make a determination when a RN refuses to engage in an activity. NPA §301.352(b)-(e)
addresses utilizing the peer review committee determination if there is a
question of whether or not the nurse had grounds to refuse under § 301.401,
but does not mandate peer review in this situation. However, TNA's comment
does highlight the Board's own references in §217.20(c) to §301.352.
The Board believes that since Safe Harbor Peer Review is not mandated by §301.352
then references to the section of the NPA in the adopted rule should be deleted.
The BNE may re-explore this concern in future revisions of this rule.
TNA recommends that rule 217.19(a)(4)(D) include that the written notice
to the RN include the obligation that the RN be provided a copy of rule 217.19
and any written policies developed by the facility which outline the peer
review process and rights of the RN.
The Board agrees with this suggestion and includes as subsection 217.19(a)(4)(D)(iii)
the following: "a copy of this rule 217.19 and a copy of the facility's peer
review plan, policies and procedures."
Lastly, TNA has suggested that the Safe Harbor Peer Review Committee should
exclude from the committee any persons or person with administrative authority
for personnel decisions directly affecting the RN.
The Board agrees with this suggestion. When the Board voted to propose
the Safe Harbor Peer Review as a separate rule 217.20, the assumptions for
the make of the committee contemplated excluding such persons from both rules
217.19 and 217.20 committees. Therefore, the Board adopts rule 217.20 with
the added statement in §217.20(b) that "The peer review committee shall
exclude from the committee any persons or person with administrative authority
for personnel decisions directly affecting the nurse." The Board believes
that this is a non- substantive change which would require republication.
The Board, on further review of the Rules, has decided to make an editorial
correction to the title of §217.19 by including the phrase "Incident
Based" and by amending §217.19 which states "Minimum Due Process for
Incident Based Peer Review" by deleting "For Incident Based Peer Review."
The Board believes this editorial change is clarifying and does not constitute
a substantive change requiring republication.
The new rules 217.19 and 217.20 are adopted with changes under
the authority of the Texas Occupations Code, Sections 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 for RNs.
The repeal and new rules affect the Nursing Practice Act, Texas Occupations
Code, Sections 301.152 and 301.157 as they pertain to registered nurses.
§217.19.Incident-Based Nursing Peer Review.
(a)
Minimum Due Process
(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 recommen- dations 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
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; and
(iii)
a copy of this rule 217.19 and a copy of the facility's
peer review plan, policies and procedures.
(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 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.
(11)
The Chief Nursing Officer (CNO) of a facility is responsible
for knowing the requirements of this Rule and for taking reasonable steps
to assure that peer review is implemented and conducted in compliance with
this Rule. The CNO is the registered nurse who is administratively responsible
for nursing services.
(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 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 §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 peer review committee shall exclude from
the committee any persons or person with administrative authority for personnel
decisions directly affecting the nurse. 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 §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.
(4)
If the RN does not submit the initial request for Safe
Harbor using the form on the BNE web site, the facility and RN shall adhere
to the Safe Harbor process as outlined on the BNE form.
(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.
(f)
The Chief Nursing Officer (CNO) of a facility is responsible
for knowing the requirements of the Rule and for taking reasonable steps to
assure that peer review is implemented and conducted in compliance with this
Rule. The CNO is the registered nurse who is administratively responsible
for nursing services.
(g)
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).
(h)
The peer review committee and participants shall comply
with the confidentiality requirements of Texas Occupations Code §§303.006
and 303.007 relating to confidentiality and limited disclosure of peer review
information.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 22, 2002.
TRD-200202492
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: May 12, 2002
Proposal publication date: March 8, 2002
For further information, please call: (512) 305-6823