22 TAC §217.16
The Board of Nurse Examiners adopts amendments with changes
to 22 TAC §217.16 pertaining to Licensure, Peer Assistance and Practice.
Section 217.16 specifically addresses the minor incident rule contained in
Texas Occupations Code §301.419 and addressed in §301.401. The proposed
rule was published in the February 17, 2006, issue of the
Texas Register
(31 TexReg 965). Editorial changes were implemented
in §217.16(d)(2)(A) and (C) by changing the word "behavior" to "practice"
to make the language consistent with other subsections of the rule.
The Board believes that the adopted revision to the Minor Incident Rule,
22 TAC §217.16, will serve to clarify what constitutes a "minor incident"
in nursing practice, as well as incidents that the Board would not consider
to be a minor incident in any circumstance. In alignment with national patient
safety initiatives, the adopted rule encourages a culture of non-punitive
reporting and remediation of the nurse as initial corrective actions.
Four comments were received in response to the publication of the proposed
rule language. Two comments were received from individuals with suggested
language changes, and comments in support of the proposed rule revisions were
received from Texas Nurses Association and an individual.
Comment: One comment expressed concern for a shift away from the individual
nurse's accountability to the emphasis placed on the infrastructure of the
"system." The accountability of the system, nursing management, thus the chain
of command will need to be explicit. She recommends a "greater emphasis on
the authority administrative/managerial structure and explicit noncompliance
issues on CNO, manager and chain of command."
Further concerns were expressed that, though she feels this clarification
is needed, this may add to the already existing workload for nursing management.
The resulting effect of increasing the reporting threshold from 3 to 5 minor
incidents in a 12 month time period may be a delay in the necessary remediation.
Response: While the Board agrees with the comment in part that a greater
emphasis should be given to the nursing manager's and nursing supervisor's
role in the evaluation, tracking, documenting and remediation of the nurse
involving a minor incident, the Board believes additional consensus building
is needed to determine the most appropriate way to express the responsibility
of the CNO and nurse manager. The Board agrees that the nurse manager's responsibility
under current §217.12(2) should be emphasized in the Interpretive Guideline
for §217.16.
The Board appreciates the concern for possible delay in remediation of
a nurse should a nurse manager remain focused merely on numbers (5 vs. 3)
of minor incidents rather than the "bigger picture" of identifying remediation
needs at any point in the nurse's practice. The Board does not agree that
this would impose an increased workload on nurse managers, who have been and
continue to be required to take appropriate action to assure client safety
in making assignments to nurses for whom the nurse manager is administratively
responsible (§217.11(1)(B) and (S)).
Comment: To make the peer review process fair and equitable in §217.16(g)(2),
the members of the informal workgroup should not be members of the peer review
committee. This assures an impartial group reviewing the incident.
Response: The Board appreciates this recommendation; however, requiring
the informal workgroup to be a separate entity from the peer review committee
may not always be possible, particularly in smaller institutions and facilities.
There may not be enough employees to staff the informal workgroup differently
from the peer review committee. In addition, it may be beneficial in certain
instances for the informal workgroup to consist of nurses from a specialty
practice area who have integral working knowledge of the nursing standards
specific to the practice setting. Conversely, there may be instances where
utilizing nurses from the same specialty unit could jeopardize the impartiality
of the peer review process, rather than enhancing it.
In short, the Board believes adding this requirement to the rule would
make it unnecessarily prescriptive and might be detrimental in some settings.
Therefore, the Board believes the membership of the informal workgroup and
the peer review committee is an issue that is best left up to the individual
policies and procedures concerning minor incidents for each facility. The
Board does believe additional explanation of the membership options of the
informal workgroup in the Interpretive Guideline for §217.16 would provide
clarification for nurse managers and employers.
The amendments are adopted pursuant to the authority of Texas
Occupations Code, §301.151 which authorizes the Board of Nurse Examiners
to adopt, enforce, and repeal rules consistent with its legislative authority
under the Nursing Practice Act.
§217.16.Minor Incidents.
(a)
Purpose. The Board believes protection of the public is
not enhanced by the reporting of every minor incident that may be a violation
of the Texas Nursing Practice Act. This is particularly true when there are
mechanisms in place in the nurse's practice setting to identify nursing errors,
detect patterns of practice, and take corrective action to remediate deficits
in a nurse's judgment, knowledge, training, or skill. This rule is intended
to clarify what constitutes a minor incident and when a minor incident need
not be reported to the board.
(b)
Definition and Scope. A "minor incident" is defined by
Texas Occupations Code §301.419(a) as "conduct that does not indicate
that the continuing practice of nursing by an affected nurse poses a risk
of harm to the client or other person."
(c)
Exclusions. The following conduct shall not be deemed a
minor incident under any circumstance:
(1)
An error that contributed to a patient's death or serious
harm.
(2)
Criminal Conduct defined in Texas Occupations Code §301.4535.
(3)
A serious violation of the board's Unprofessional Conduct
Rule (22 TAC §217.12) involving intentional or unethical conduct such
as fraud, theft, patient abuse or patient exploitation.
(d)
Criteria for Determining if Minor Incident is Board-Reportable.
(1)
A nurse involved in a minor incident need not be reported
to the Board unless the conduct:
(A)
creates a significant risk of physical, emotional or financial
harm to the client;
(B)
indicates the nurse lacks a conscientious approach to or
accountability for his/her practice;
(C)
indicates the nurse lacks the knowledge and competencies
to make appropriate clinical judgments and such knowledge and competencies
cannot be easily remediated; or
(D)
indicates a pattern of multiple minor incidents demonstrating
that the nurse's continued practice would pose a risk of harm to clients or
others.
(2)
Evaluation of Multiple Incidents.
(A)
Evaluation of Conduct. In evaluating whether multiple incidents
constitute grounds for reporting it is the responsibility of the nurse manager
or supervisor or peer review committee to determine if the minor incidents
indicate a pattern of practice that demonstrates the nurse's continued practice
poses a risk and should be reported.
(B)
Evaluation of Multiple Incidents. In practice settings
with nursing peer review, the nurse shall be reported to peer review if a
nurse commits five minor incidents within a 12-month period. In practice settings
with no nursing peer review, the nurse who commits five minor incidents within
a 12 month period shall be reported to the Board.
(C)
Nurse Manager and Nurse Supervisor Responsibilities. Regardless
of the time frame or number of minor incidents, if a nurse manager or supervisor
believes the minor incidents indicate a pattern of practice that poses a risk
of harm, the nurse should be reported to the Board or Peer Review Committee.
(e)
Special Considerations in Evaluating Incidents. In evaluating
whether a nurse's conduct constitutes a minor incident or should be reported
to the Board, the following should be considered:
(1)
If an incident is primarily the result of factors beyond
the nurse's control and addressing those factors is more likely to prevent
the incident from reoccurring, a presumption should exist that the incident
is a non-reportable minor incident.
(2)
Multiple factors may contribute to medication errors. For
the purposes of this rule, a medication error should be evaluated to determine
whether the error resulted from failure of the nurse to exercise proper clinical
judgment or if there were other extraneous factors that were the primary cause
of the error. Board Position Statement 15.17 provides guidelines for evaluating
medication errors.
(f)
Documentation of Minor Incidents. A minor incident should
be documented as follows:
(1)
a report shall be prepared and maintained for 12 months
that contains a complete description of the incident, patient record number,
witnesses, nurse involved and the action taken to correct or remedy the problem;
(2)
if a medication error is attributable or assigned to the
nurse as a minor incident, the record of that incident should indicate why
the error is being attributed or assigned to the nurse.
(g)
Nursing Peer Review Committee.
(1)
A peer review committee receiving a report involving a
minor incident or incidents shall review the incident(s) and other conduct
of the nurse during the previous 12 months to determine if the nurse's continuing
to practice poses a risk of harm to clients or other persons and whether remediation
would be reasonably expected to adequately mitigate such risk if it exists.
The committee shall consider the special considerations set out in subsection
(d) of this section.
(2)
Regardless of the number of incidents, the facility may
choose to initiate an informal review process utilizing a workgroup of the
nursing peer review committee. Peer review of minor incidents under this Rule
may be conducted by a special workgroup of the nursing peer review committee.
The workgroup may conduct its review using an informal process as long as
the nurse has opportunity to meet with the workgroup and provided the nurse
is given an opportunity to be peer reviewed in accordance with §217.19
of this title (relating to Incident-Based Nursing Peer Review) prior to any
report being made to the Board.
(3)
If the peer review committee determines either that the
nurse's continuing to practice does not pose a risk of harm to clients or
other persons or that remediation could reasonably be expected to adequately
mitigate any such risk, the committee need not report the nurse to the Board
provided any remediation is successfully completed.
(h)
A Right to Report. Nurses and other persons are encouraged
not to report minor incidents to the Board unless required to do so by this
rule, but nothing in this rule is intended to prevent reporting of a potential
violation directly to the Board.
(i)
Bad Faith Determination. Intentionally misclassifying an
incident in bad faith to avoid reporting may result in violation of the mandatory
reporting statute.
(j)
Chief Nursing Officer's Responsibility. The chief nursing
officer shall be responsible for taking reasonable steps to assure that minor
incidents are handled in compliance with this rule.
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 27, 2006.
TRD-200602355
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: May 17, 2006
Proposal publication date: February 17, 2006
For further information, please call: (512) 305-6823