Part 11. TEXAS BOARD OF NURSING
Chapter 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Board of Nursing or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Nursing (BON) proposes the repeal of §217.19 (Incident-Based Nursing Peer Review), and §217.20 (Safe Harbor Peer Review for Nurses). These repeals were originally proposed in the November 2, 2007, edition of the Texas Register . The Board concurrently proposed new rules, but due to the comments responsive to those rules, the Board voted to withdraw the rules and re-propose new rules. Due to the potential expiration of the proposed repeals prior to the adoption of the proposed new rules, it became necessary to withdraw the proposed repeals and re-propose the repeals. Concurrent with these re-proposed repeals are the re-proposed new rules.
Katherine Thomas, Executive Director, has determined that for the first five-year period the proposal is in effect there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposal is in effect, the public benefit will be that the BON will more effectively fulfill its mission. There will not be any effect on small businesses or foreseeable anticipated costs to affected individuals as a result of the implementation of this proposal.
Written comments on the proposal may be submitted to Joy Sparks, Assistant General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701; by email to joy.sparks@bon.state.tx.us; or by facsimile to (512) 305-8101.
The proposal is pursuant to the authority of Texas Occupations Code §301.151 which authorizes the BON to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. Texas Occupations Code §§301.4106, 301.401, 301.402, 301.4025, 301.403, 301.404, 301.405, 301.407, 301.413, 301.457, 303.001, 303.0015, 303.005, 303.0075 and 303.011 are affected and implemented by this proposal.
§217.19.Incident-Based Nursing Peer Review.
§217.20.Safe Harbor Peer Review for Nurses.
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 January 29, 2008.
TRD-200800499
Katherine Thomas
Executive Director
Texas Board of Nursing
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 305-6823
The Texas Board of Nursing (BON or Board) proposes new §217.19 (Incident-Based Nursing Peer Review and Whistleblower Protections) and §217.20 (Safe Harbor Peer Review for Nurses and Whistleblower Protections). At the July 2007 BON meeting, the Board charged the Nursing Practice Advisory Committee (NPAC) with the task of revising the nursing peer review rules to incorporate the statutes passed during the 2007 Legislative Session. These rules were originally proposed in the November 2, 2007, edition of the Texas Register, and the comments received on the initially proposed rules were extensive. The Board incorporated many of the requested changes and made additional revisions. Due to the revisions, however, the Board voted to withdraw the rules and re-propose new rules. Concurrent with these re-proposed new rules are the re-proposed repeals of the existing rules due to the potential expiration of the proposed repeals prior to the adoption of the new rules.
Historical Background
The basic rules and concepts of nursing peer review have been in existence since 1987, with "parity of counsel" added in 1995 and safe harbor peer review in 1997. In 2001, after a year of deliberations on revisions by NPAC as well as response to public comments, the Board repealed §217.17, Minimal Procedural Standards During Peer Review, and adopted two new rules that separated incident-based peer review, the current §217.19, and safe harbor peer review, the current §217.20. It was not until the Board of Nursing and the Board of Vocational Nurse Examiners combined in February 2004 that safe harbor peer review became applicable and accessible to LVNs. The peer review process is outlined in Texas Occupations Code, ch. 303, Nursing Peer Review. Reporting requirements are found in Tex. Occ. Code, ch. 301 (Nursing Practice Act).
Revisions to 22 TAC §217.16, Minor Incidents, went into effect May 17, 2006. It included a new section that permits a peer review committee to utilize a smaller workgroup of the committee to engage in fact-finding, analysis, and dialogue with the nurse (§217.16(g)(2)). The workgroup is permitted to use informal processes, and the nurse's rights are protected through review by the full committee prior to any report to the Board. Proposed revisions to Incident-Based Peer Review incorporate use of a workgroup and tie in the minor incident rule in evaluation of one or more nursing errors or a request for "safe harbor."
Current Review
During the 2007 Legislative Session, Senate Bill 993, addressing nursing peer review, added protections for a nurse who reports a nurse, refuses to engage in conduct, or assists a nurse with filing safe harbor because of unsafe conditions for patients. This includes not only protections for the nurse claiming safe harbor or reporting another nurse, but also for the nurse reporting a facility or non-nurse health care provider who the nurse believes in good faith is endangering patient safety. These "whistleblower" protections have been added at the end of each rule, as well as included in the titles for each rule, to assure that nurses are able to easily find and be aware that they do have these protections when upholding their duty to always advocate for patient safety (22 TAC §217.11(1)(B)).
In response to the first Institute of Medicine (IOM) report, "To Err is Human," the concept of having a peer review committee examine external factors contributing to a nursing error was incorporated into §217.19(a)(7) in 2001. As national patient safety efforts continue to focus on external system factors, SB 993 amended §301.305(c) to require that a peer review committee examine any required report of a nurse to the Board by a nurse's employer or practice setting when a nurse is terminated, suspended for seven or more days, or received other substantive disciplinary action. The intent is to prevent external factors that negatively impact patient safety from going unchecked and unchanged--the issues and surrounding circumstances do not go away because the nurse was terminated, suspended, made a "do not return," etc. New language in §301.305(c) further mandates that the peer review committee report to a facility's patient safety committee if it is determined that external factors did impact or contribute to the nurse's error.
At the July 2007 BON meeting, the Board charged the Nursing Practice Advisory Committee (NPAC or Committee) with the task of revising the nursing peer review rules. The Board's Committee is familiar with the history of nursing peer review, so it considered the new laws and re-evaluated the rules. The Committee rearranged the Safe Harbor Peer Review (22 TAC §217.20) rule for better flow and understanding, to clearly address the nurse's due process rights, and to provide for a nurse to do a brief "initial" request for safe harbor at the time asked to engage in the conduct that is the subject of Safe Harbor. NPAC members also recommended redundancy on the most important step with safe harbor: invoking it at the time the nurse is asked to engage in the conduct or to accept the assignment. The Committee agreed that a nurse may be handicapped by the stress of the situation that is creating the danger to patients, while at the same time trying to recall what steps to take to invoke safe harbor. Repeating this vital step in more than one place in the rule is intended to help the nurse find and carry out this step that protects the nurse's license while enabling the nurse to protect the patients. The BON agreed with and approved these recommendations.
The Board is aware that holding a peer review is a time-consuming process and may be a hardship on a facility or agency trying to staff direct patient care needs at the same time pulling nurses off to participate in peer review. It is hoped that, by permitting the use of a smaller workgroup of the peer review committee, the peer review process can be effective, easier than in the past, less intimidating, less time-consuming, and can promote safer patient care.
Katherine Thomas, Executive Director, has determined that, for the first five-year period the proposal is in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
Ms. Thomas also has determined that, for each year of the first five years the proposal is in effect, the public benefit will be that the rule language will carry out the legislative intent of Chapter 303 of the Texas Occupations Code. There will not be any foreseeable effect on small businesses or foreseeable anticipated costs to affected individuals as a result of the implementation of this proposal.
Written comments on the proposal may be submitted by mail to Joy Sparks, Assistant General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701; by e-mail to joy.sparks@bon.state.tx.us; or by facsimile to (512) 305-8101.
The proposal is pursuant to the authority of Texas Occupations Code, §301.151, which authorizes the BON to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. Texas Occupations Code, §§301.401, 301.402, 301.4025, 301.403 - 301.405, 301.407, 301.413, 301.457, 303.001, 303.0015, 303.005, 303.0075, and 303.011 are affected and implemented by this proposal.
§217.19.Incident-Based Nursing Peer Review and Whistleblower Protections.
(a) Definitions.
(1) Assignment--Designated responsibility for the provision or supervision of nursing care for a defined period of time in a defined work setting. This includes but is not limited to the specified functions, duties, practitioner orders, supervisory directives, and amount of work designated as the individual nurse's responsibility. Changes in the nurse's licensure responsibilities may occur at any time during the work period.
(2) Bad Faith--Knowingly or recklessly taking action not supported by a reasonable factual or legal basis. The term includes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
(3) Chief Nursing Officer (CNO)--The registered nurse, by any title, who is administratively responsible for the nursing services at a facility, association, school, agency, or any other setting that utilizes the services of nurses.
(4) Conduct Subject to Reporting defined by Texas Occupations Code §301.401 of the Nursing Practice Act as conduct by a nurse that:
(A) violates the Nursing Practice Act (NPA) or a Board rule and contributed to the death or serious injury of a patient;
(B) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or
(D) indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.
(5) Duty to a patient--A nurse's duty is to always advocate for patient safety, including any nursing action necessary to comply with the standards of nursing practice (§217.11 of this title) and to avoid engaging in unprofessional conduct (§217.12 of this title). This includes administrative decisions directly affecting a nurse's ability to comply with that duty.
(6) Good Faith--Taking action supported by a reasonable factual or legal basis. Good faith precludes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
(7) Incident-Based Peer Review--Incident-based peer review focuses on determining if a nurse's actions, be it a single event or multiple events (such as in reviewing up to five (5) minor incidents by the same nurse within a year's period of time) should be reported to the Board, or if the nurse's conduct does not require reporting because the conduct constitutes a minor incident that can be remediated. The review includes whether external factors beyond the nurse's control may have contributed to any deficiency in care by the nurse, and to report such findings to a patient safety committee as applicable.
(8) Malice--Acting with a specific intent to do substantial injury or harm to another.
(9) Minor incident--Conduct by a nurse that does not indicate that the nurse's continued practice poses a risk of harm to a patient or another person as described in §217.16 of this title.
(10) Nurse Administrator--Chief Nursing Officer (CNO) or the CNO's designee.
(11) Nursing Peer Review Law (NPR Law)--Chapter 303 of the Texas Occupations Code (TOC). Nurses involved in nursing peer review must comply with the NPR Law.
(12) Nursing Practice Act (NPA)--Chapter 301 of the Texas Occupations Code (TOC). Nurses must comply with the NPA.
(13) Patient Safety Committee--Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety including:
(A) the entity's medical staff composed of individuals licensed under Subtitle B (Medical Practice Act, Texas Occupations Code §151.001, et seq.);
(B) a medical committee under Subchapter D, Chapter 161 of the Health and Safety Code (§§161.031 - 161.033); or
(C) a multi-disciplinary committee, including nursing representation, or any committee established by the same entity to promote best practices and patient safety.
(14) Peer Review--Defined by Texas Occupations Code §303.001(5) (NPR Law) as the evaluation of nursing services, the qualifications of a nurse, the quality of patient care rendered by a nurse, the merits of a complaint concerning a nurse or recommendation regarding a complaint. 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. Peer review conducted by any entity must comply with NPR Law and with applicable Board rules related to incident-based or safe harbor peer review.
(15) Safe Harbor--A process that protects a nurse from employer retaliation and licensure sanction when a nurse makes a good faith request for peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. Safe Harbor must be invoked prior to engaging in the conduct or assignment for which peer review is requested, and may be invoked at anytime during the work period when the initial assignment changes.
(16) Texas Occupations Code (TOC)--One of the topical subdivisions or "codes" into which the Texas Statutes or laws are organized. The Texas Occupations Code contains the statutes governing occupations and professions including the health professions. Both the NPA and NPR Law are located within these statutes. The TOC can be changed only by the Texas Legislature.
(17) Whistleblower Protections--Protections available to a nurse that prohibit retaliatory action by an employer or other entity because the nurse:
(A) made a good faith request for Safe Harbor Nursing Peer Review under TOC §303.005(c) (NPR Law) and 22 TAC §217.20 of this title;
(B) refused to engage in an act or omission relating to patient care that would constitute a violation of the NPA or Board rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage in Certain Conduct). A nurse invoking Safe Harbor under § 217.20 of this title must comply with §217.20(g) of this title if the nurse refuses to engage in the conduct or assignment; or
(C) made a lawful report of unsafe practitioners, or unsafe patient care practices or conditions, in accordance with TOC §301.4025 (NPA) (report of unsafe practices of non-nurse entities) and subsection (j)(2) of this section.
(b) Purpose. The purpose of this rule is to:
(1) define minimum due process to which a nurse is entitled under incident-based peer review,
(2) provide guidance to facilities, agencies, schools, or anyone who utilizes the services of nurses in the development and application of incident-based peer review plans,
(3) assure that nurses have knowledge of the plan, and
(4) provide guidance to the incident-based peer review committee in its fact finding process.
(c) Applicability of Incident-Based Peer Review. Texas Occupations Code §303.0015 (NPR Law) requires a person who regularly employs, hires or contracts for the services of ten (10) or more nurses (for peer review of an RN, at least 5 of the 10 must be RNs) to conduct nursing peer review for purposes of TOC §§301.402(e) (NPA) (relating to alternate reporting by nurses to peer review), 301.403 (relating to peer review committee reporting), 301.405(c) (relating to peer review of external factors as part of employer reporting), and 301.407(b) (relating to alternate reporting by state agencies to peer review).
(d) Minimum Due Process.
(1) A licensed nurse subject to incident-based peer review is entitled to minimum due process under TOC §303.002(e) (NPR Law). Any person or entity that conducts incident-based peer review must comply with the due process requirements of this section even if the person or entity does not utilize the number of nurses described by subsection (c) of this section.
(2) A facility conducting incident-based peer review shall have written policies and procedures that, at a minimum, address:
(A) the level of participation of nurse or nurse's representative at an incident-based peer review hearing beyond that required by paragraph (3)(F) of this subsection;
(B) confidentiality and safeguards to prevent impermissible disclosures including written agreement by all parties to abide by TOC §§303.006 and 303.007, 303.0075 (NPR Law) and subsection (h) of this section;
(C) handling of cases involving nurses who are impaired or suspected of being impaired by chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity in accordance with the TOC §301.410, and subsection (g) of this section;
(D) reporting of nurses to the Board by incident-based peer review committee in accordance with the TOC §301.403, and subsection (i) of this section; and
(E) effective date of changes to the policies which in no event shall apply to incident-based peer review proceedings initiated before the change was adopted unless agreed to in writing by the nurse being reviewed.
(3) In order to meet the minimum due process required by TOC ch. 303 (NPR Law), the nursing peer review committee must:
(A) comply with the membership and voting requirements as set forth in TOC §303.003 (NPR Law);
(B) exclude from the committee, including attendance at the peer review hearing, any person or persons with administrative authority for personnel decisions directly relating to the nurse. This requirement does not exclude a person who is administratively responsible over the nurse being reviewed from appearing before the committee to speak as a fact witness;
(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:
(i) the nurse's practice is being evaluated;
(ii) the incident-based 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:
(I) the incident-based peer review committee determines an extended time period (extending the 45 days by no more than an additional 45 days) is necessary in order to consult with a patient safety committee; or
(II) otherwise agreed upon by the nurse and incident-based peer review committee; and
(iii) includes the information required by subparagraph (D) of this paragraph.
(D) Include in the notice required by subparagraph (C) of this paragraph:
(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) the name, address, telephone number of contact person to receive the nurse's response; and
(iii) a copy of this rule (§217.19 of this title) and a copy of the facility's incident-based 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) complete its review no more than fourteen (14) calendar days after the incident-based peer review hearing, or in compliance with subparagraph (C)(ii) of this paragraph relating to consultation with a patient safety committee;
(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 incident-based peer review record to be included whenever the committee's findings are disclosed;
(4) An incident-based peer review committee's determination to report a nurse to the Board cannot be overruled, changed, or dismissed.
(5) Nurse's Right To Representation.
(A) A nurse shall have a right of representation as set out in this paragraph. These rights are minimum requirements and a facility may allow the nurse more representation. The incident-based 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.
(B) The nurse has the right to be accompanied to the hearing by a nurse peer or an attorney. Representatives attending the incident-based peer review hearing must comply with the facility's incident-based peer review policies and procedures regarding participation beyond conferring with the nurse.
(C) If either the facility or nurse will have an attorney or representative present at the incident-based 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.
(D) Notwithstanding any other provisions of these rules, if an attorney representing the facility or incident-based peer review committee is present at the incident-based peer review hearing in any capacity, including serving as a member of the incident-based 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) A nurse whose practice is being evaluated may properly choose not to participate in the proceeding after the nurse has been notified under paragraph (3)(C) of this subsection. If a nurse elects not to participate in incident-based peer review, the nurse waives any right to procedural due process under TOC §303.002 (NPR Law) and this subsection.
(e) Use of Informal Work Group In Incident Based Peer Review. A facility may choose to initiate an informal review process utilizing a workgroup of the nursing incident-based peer review committee provided there are written policies for the informal workgroup that require:
(1) the nurse be informed of how the informal work group will function, and consent, in writing, to the use of an informal work group. A nurse does not waive any right to incident-based peer review by accepting or rejecting the use of an informal work group;
(2) if the informal work group suspects that the nurse's practice is impaired by chemical dependency or diminished mental capacity, the chair person must be notified to determine if peer review should be terminated and the nurse reported to the Board or to a Board-approved peer assistance program as required by subsection (g) of this section;
(3) the informal work group comply with the membership and voting requirements of subsection (d)(3)(A) and (B) of this section;
(4) the nurse be provided the opportunity to meet with the informal work group;
(5) the nurse have the right to reject any decision of the informal work group and to then have his/her conduct reviewed by the peer review committee, in which event members of the informal work group shall not participate in that determination; and
(6) ratification by the committee chair person of any decision made by the informal work group. If the chair person disagrees with a determination of the informal work group to remediate a nurse for one or more minor incidents, the chair person shall convene the full peer review committee to make a determination regarding the conduct in question; and
(7) the chair person communicate any decision of the informal work group to the CNO or nurse administrator.
(f) Exclusions to Minimum Due Process Requirements. The minimum due process requirements set out in subsection (d) of this section do not apply to:
(1) peer review conducted solely in compliance with TOC §301.405(c) (NPA) relating to review of external factors, after a report of a nurse to the Board has already occurred under TOC §301.405(b) (relating to mandatory report by employer, facility or agency); or
(2) reviews governed by subsection (g) of this section involving nurses whose practice is suspected of being impaired due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity;
(3) when a person required to report a nurse believes that a nurse's practice is impaired or suspected of being impaired and has also resulted in a violation under TOC §301.410(b), that requires a direct report to the Board.
(g) Incident-Based Peer Review of a Nurse's Impaired Practice/Lack of Fitness.
(1) When a nurse's practice is impaired or suspected of being impaired due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity, peer review of the nurse shall be suspended. The nurse shall be reported to the Board or to a Board-approved peer assistance program in accordance with TOC §301.410 (related to reporting of impairment):
(A) if there is no reasonable factual basis for determining that a practice violation is involved, the nurse shall be reported to:
(i) the Board; or
(ii) a Board-approved peer assistance program, that shall handle reporting the nurse in accordance with §217.13 of this title; or
(B) if there is a reasonable factual basis for a determination that a practice violation is involved, the nurse shall be reported to the Board.
(2) Following suspension of peer review of the nurse, the committee shall proceed to evaluate external factors to determine if:
(A) any factors beyond the nurse's control contributed to a practice violation; and
(B) any deficiency in external factors enabled the nurse to engage in unprofessional or illegal conduct.
(3) If the committee determines under paragraph (2) of this subsection that external factors do exist for either paragraph (2)(A) or (2)(B) of this subsection, the committee shall report its findings to a patient safety committee or to the CNO or nurse administrator if there is no patient safety committee.
(4) A facility, organization, contractor, or other entity does not violate a nurse's right to due process under subsection (d) of this section by suspending the committee's review of the nurse and reporting the nurse to the Board in accordance with paragraph (2) of this subsection.
(5) Paragraph (1) of this subsection does not preclude a nurse from self-reporting to a peer assistance program or appropriate treatment facility.
(h) Confidentiality of Proceedings.
(1) Confidentiality of information presented to and/or considered by the incident-based peer review committee shall be maintained and the information not disclosed except as provided by TOC §§303.006, 303.007, and 303.0075 (NPR Law). 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.
(2) In accordance with TOC §303.0075, a nursing incident-based peer review committee, including an entity contracted to conduct peer review under TOC §303.0015(b), and any patient safety committee established by the same entity, may share information.
(A) A record or determination of a patient safety committee, or a communication made to a patient safety committee, is not subject to subpoena or discovery and is not admissible in any civil or administrative proceeding, regardless of whether the information has been provided to a nursing peer review committee.
(B) The privileges under this subsection may be waived only through a written waiver signed by the chair, vice chair, or secretary of the patient safety committee.
(C) This section does not affect the application of TOC §303.007 (NPR Law) (relating to disclosures by peer review committee) to a nursing peer review committee.
(D) A committee that receives information from another committee shall forward any request to disclose the information to the committee that provided the information.
(3) A CNO or Nurse Administrator shall assure that policies are in place relating to sharing of information and documents between an Incident-Based Nursing Peer Review committee and a patient safety committee(s) that at a minimum, address:
(A) separation of confidential Incident-Based Nursing Peer Review information from the nurse's human resource file;
(B) methods in which shared communications and documents are labeled and maintained as to which committee originated the documents or communications;
(C) the confidential and separate nature of incident-based peer review and patient safety committee proceedings including shared information and documents; and
(D) the treatment of nurses who violate the policies including when a violation may result in a nurse being reported to the Board or a nursing peer review committee.
(i) Committee Responsibility to Evaluate and Report.
(1) In evaluating a nurse's conduct, the incident-based peer review 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.
(2) An incident-based peer review committee shall consider whether a nurse's conduct constitutes one or more minor incidents under §217.16 (Minor Incidents) of this title. In accordance with that section, the committee may determine that the nurse:
(A) can be remediated to correct the deficiencies identified in the nurse's judgment, knowledge, training, or skill; or
(B) should be reported to the Board for either a pattern of practice that fails to meet minimum standards, or for one or more events that the incident-based peer review committee determines cannot be categorized as a minor incident(s).
(3) An incident-based nursing peer review committee is not required to submit a report to the Board if:
(A) the committee determines that the reported conduct was a minor incident that is not required to be reported in accordance with provisions of §217.16 (Minor Incident) of this title; or
(B) the nurse has already been reported to the Board under TOC §301.405(b) (NPA) (employer reporting requirements).
(4) If the committee determines it is required to report a nurse to the Board, the committee shall submit to the Board a written, signed report that includes:
(A) the identity of the nurse;
(B) a description of the conduct subject to reporting;
(C) a description of any corrective action taken against the nurse;
(D) a recommendation as to whether the Board should take formal disciplinary action against the nurse, and the basis for the recommendation;
(E) the extent to which any deficiency in care provided by the reported nurse was the result of a factor beyond the nurse's control; and
(F) any additional information the Board requires.
(5) If an incident-based peer review committee determines that a deficiency in care by the nurse was the result of a factor(s) beyond the nurse's control, in compliance with TOC §303.011(b) (NPR Law) (related to required peer review committee report when external factors contributed to a nurse's deficiency in care), the committee must submit a report to the applicable patient safety committee, or to the CNO or nurse administrator if there is no patient safety committee. A patient safety committee must report its findings back to the incident-based peer review committee.
(6) An incident-based peer review committee is not required to withhold its determination of the nurse being incident-based peer reviewed, pending feedback from a patient safety committee, unless the committee believes that a determination from a patient safety committee is necessary in order for the incident-based peer review committee to determine if the nurse's conduct is reportable.
(A) If an incident-based peer review committee finds that factors outside the nurse's control contributed to a deficiency in care, in addition to reporting to a patient safety committee, the incident-based peer review committee may also make recommendations for the nurse, up to and including reporting to the Board.
(B) An incident-based peer review committee may extend the time line for completing the incident-based peer review process (extending the 45 days by no more than an additional 45 days) if the committee members believe they need input from a patient safety committee. The incident-based peer review committee must complete its review of the nurse within this 90-day time frame.
(7) An incident-based peer review committee's determination to report a nurse to the Board cannot be overruled, changed, or dismissed.
(j) Nurse's Duty to Report.
(1) A report made by a nurse to a nursing incident-based peer review committee will satisfy the nurse's duty to report to the Board under TOC §301.402 (mandatory report by a nurse) provided that the following conditions are met:
(A) The reporting nurse shall be notified of the incident-based peer review committee's actions or findings and shall be subject to TOC §303.006 (confidentiality of peer review proceedings); and
(B) The nurse has no reason to believe the incident-based peer review committee made its determination in bad faith.
(2) A nurse may not be suspended, terminated, or otherwise disciplined or discriminated against for filing a report made without malice under this section and TOC §301.402(f) (retaliation for a report made without malice prohibited). A violation of this subsection or TOC §301.402(f) is subject to TOC §301.413 that provides a nurse the right to file a civil suit to recover damages. The nurse may also file a complaint with the regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.
(k) State Agency Duty to Report. A state agency that has reason to believe that a nurse has engaged in conduct subject to reporting shall report the nurse in writing to:
(1) the Board; or
(2) the applicable nursing peer review committee in lieu of reporting to Board.
(l) Integrity of Incident-Based Peer Review Process.
(1) Incident-Based Peer Review must be conducted in good faith. A nurse who knowingly participates in incident-based peer review in bad faith is subject to disciplinary action by the Board.
(2) The CNO or nurse administrator of a facility, association, school, agency, or of any other setting that utilizes the services of nurses is responsible for knowing the requirements of this rule and for taking reasonable steps to assure that incident-based peer review is implemented and conducted in compliance with the NPA, NPR Law, and this section.
(3) A determination by an incident-based peer review committee, a CNO, nurse administrator, or an individual nurse to report a nurse to the Board cannot be overruled, dismissed, changed, or reversed. An incident-based peer review committee, CNO, and individual nurse each have a separate responsibility to protect the public by reporting a nurse to the Board as set forth in TOC §301.402, §301.405, 22 TAC §217.11(1)(K) of this title, and this section.
(m) Reporting Conduct of other Practitioners or Entities: Whistleblower Protections.
(1) This section does not expand the authority of any incident-based peer review committee or the Board to make determinations outside the practice of nursing.
(2) In a written, signed report to the appropriate licensing Board or accrediting body, and in accordance with TOC §301.4025 (report of unsafe practices of non-nurse entities), a nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to:
(A) minimum standards of acceptable and prevailing professional practice, for a report made regarding a practitioner; or
(B) statutory, regulatory, or accreditation standards, for a report made regarding an agency or facility.
(i) A nurse may report to the nurse's employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.
(ii) A person may not suspend or terminate the employment of, or otherwise discipline or discriminate against, a person who reports, without malice, under this subsection. A violation of this subsection is subject to TOC §301.413 (NPA) that provides a nurse the right to file civil suit to recover damages. The nurse may also file a complaint with the regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.
§217.20.Safe Harbor Peer Review.
(a) Definitions.
(1) Assignment--Designated responsibility for the provision or supervision of nursing care for a defined period of time in a defined work setting. This includes but is not limited to the specified functions, duties, practitioner orders, supervisory directives, and amount of work designated as the individual nurse's responsibility. Changes in the nurse's assignment may occur at any time during the work period.
(2) Bad Faith--Knowingly or recklessly taking action not supported by a reasonable factual or legal basis. The term includes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
(3) Chief Nursing Officer (CNO)--The registered nurse, by any title, who is administratively responsible for the nursing services at a facility, association, school, agency, or any other setting that utilizes the services of nurses.
(4) Conduct Subject to Reporting defined by Texas Occupations Code §301.401 of the Nursing Practice Act as conduct by a nurse that:
(A) violates the Nursing Practice Act (NPA) or a Board rule and contributed to the death or serious injury of a patient;
(B) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or
(D) indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.
(5) Duty to a patient--A nurse's duty is to always advocate for patient safety, including any nursing action necessary to comply with the standards of nursing practice (§217.11 of this title) and to avoid engaging in unprofessional conduct (§217.12 of this title). This includes administrative decisions directly affecting a nurse's ability to comply with that duty.
(6) Good Faith--Taking action supported by a reasonable factual or legal basis. Good faith precludes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
(7) Incident-Based Peer Review--Incident-based peer review focuses on determining if a nurse's actions, be it a single event or multiple events (such as in reviewing up to five (5) minor incidents by the same nurse within a year's period of time) should be reported to the Board, or if the nurse's conduct does not require reporting because the conduct constitutes a minor incident that can be remediated. The review includes whether external factors beyond the nurse's control may have contributed to any deficiency in care by the nurse, and to report such findings to a patient safety committee as applicable.
(8) Malice--Acting with a specific intent to do substantial injury or harm to another.
(9) Minor incident--Conduct by a nurse that does not indicate that the nurse's continued practice poses a risk of harm to a patient or another person as described in §217.16 (Minor Incident) of this title.
(10) Nurse Administrator--Chief Nursing Officer (CNO) or the CNO's designee.
(11) Nursing Peer Review Law (NPR law)--Chapter 303 of the Texas Occupations Code (TOC). Nurses involved in nursing peer review must comply with the NPR Law.
(12) Nursing Practice Act (NPA)--Chapter 301 of the Texas Occupations Code (TOC). Nurses must comply with the NPA.
(13) Patient Safety Committee--Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety including:
(A) the entity's medical staff composed of individuals licensed under Subtitle B (Medical Practice Act, Texas Occupations Code §151.001, et seq);
(B) a medical committee under Subchapter D, Chapter 161 of the Health and Safety Code (§§161.031 - 161.033); or
(C) a multi-disciplinary committee, including nursing representation, or any committee established by the same entity to promote best practices and patient safety.
(14) Peer Review--Defined by Texas Occupations Code §303.001(5) (NPR Law) as the evaluation of nursing services, the qualifications of a nurse, the quality of patient care rendered by a nurse, the merits of a complaint concerning a nurse or recommendation regarding a complaint. 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. Peer review conducted by any entity must comply with NPR Law and with applicable Board rules related to incident-based or safe harbor peer review.
(15) Safe Harbor--A process that protects a nurse from employer retaliation and licensure sanction when a nurse makes a good faith request for peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. Safe Harbor must be invoked prior to engaging in the conduct or assignment for which peer review is requested, and may be invoked at anytime during the work period when the initial assignment changes.
(16) Texas Occupations Code (TOC)--One of the topical subdivisions or "codes" into which the Texas Statutes or laws are organized. The Texas Occupations Code contains the statutes governing occupations and professions including the health professions. Both the NPA and NPR Law are located within these statutes. The TOC can be changed only by the Texas Legislature.
(17) Whistleblower Protections--Protections available to a nurse that prohibit retaliatory action by an employer or other entity because the nurse:
(A) made a good faith request for Safe Harbor Nursing Peer Review under Texas Occupations Code §303.005(c) and 22 TAC §217.20 of this title; or
(B) refused to engage in an act or omission relating to patient care that would constitute a violation of the NPA or Board rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage in Certain Conduct). A nurse invoking Safe Harbor under §217.20 of this title must comply with §217.20(g) of this title if the nurse refuses to engage in the conduct or assignment; or
(C) made a lawful report of unsafe practitioners, or unsafe patient care practices or conditions, in accordance with TOC §301.4025 (report of unsafe practices of non-nurse entities) and subsection (j)(2) of this section.
(b) Purpose. The purpose of this rule is to:
(1) define the process for invoking Safe Harbor;
(2) define minimum due process to which a nurse is entitled under safe harbor peer review;
(3) provide guidance to facilities, agencies, employers of nurses, or anyone who utilizes the services of nurses in the development and application of peer review plans;
(4) assure that nurses have knowledge of the plan as well as their right to invoke Safe Harbor; and
(5) provide guidance to the peer review committee in making its determination of the nurse's duty to the patient.
(c) Applicability of Safe Harbor Nursing Peer Review.
(1) Texas Occupations Code §303.0015 (NPR Law) requires a person who regularly employs, hires or contracts for the services of ten (10) or more nurses (for peer review of an RN, at least 5 of the 10 must be RNs) to permit a nurse to request Safe Harbor Peer Review when the nurse is requested or assigned to engage in conduct that the nurse believes is in violation of his/her duty to a patient.
(2) Any person or entity that conducts Safe Harbor Nursing Peer Review is required to comply with the requirements of this rule.
(d) Invoking Safe Harbor.
(1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times:
(A) when the conduct is requested or assignment made;
(B) when changes occur in the request or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned that a nurse believes in good faith that patient harm may result; or
(C) when the nurse refuses to engage in the requested conduct or assignment.
(2) The nurse must notify the supervisor requesting the conduct or assignment in writing that the nurse is invoking Safe Harbor. The content of this notification must meet the requirements for a Quick Request Form described in paragraph (3) of this subsection. A detailed written account of the Safe Harbor request that meets the minimum requirements for the Comprehensive Written Request described in paragraph (4) of this subsection must be completed before leaving the work setting at the end of the work period.
(3) Quick Request Form.
(A) A nurse wishing to invoke Safe Harbor must make an initial request in writing that at a minimum includes the following:
(i) the nurse(s) name making the safe harbor request and his/her signature(s);
(ii) the date and time of the request;
(iii) the location of where the conduct or assignment is to be completed;
(iv) the name of the person requesting the conduct or making the assignment; and
(v) a brief explanation of why safe harbor is being requested.
(B) The BON Safe Harbor Quick Request Form may be used to invoke the initial request for Safe Harbor, but use of the form is not required. The initial written request may be in any written format provided the above minimum information is provided.
(4) Comprehensive Written Request for Safe Harbor Peer Review.
(A) A nurse who invokes Safe Harbor must supplement the initial written request under paragraph (3)(A) of this subsection by submitting a comprehensive request in writing before leaving the work setting at the end of the work period. This comprehensive written request must include a minimum of the following information:
(i) the conduct assigned or requested, including the name and title of the person making the assignment or request;
(ii) a description of the practice setting, e.g., the nurse's responsibilities, resources available, extenuating or contributing circumstances impacting the situation;
(iii) a detailed description of how the requested conduct or assignment would have violated the nurse's duty to a patient or any other provision of the NPA and Board Rules. If possible, reference the specific standard (§217.11 of this title) or other section of the NPA and/or Board rules the nurse believes would have been violated. If a nurse refuses to engage in the requested conduct or assignment, the nurse must document the existence of a rationale listed under subsection (g) of this section.
(iv) If applicable, the rationale for the nurse's not engaging in the requested conduct or assignment awaiting the nursing peer review committee's determination as to the nurse's duty. The rationale should refer to one of the justifications described in subsection (g)(2) of this section for not engaging in the conduct or assignment awaiting a peer review determination.
(v) 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
(vi) the nurse's name, title, and relationship to the supervisor making the assignment or request.
(B) The BON Comprehensive Request for Safe Harbor Form may be used when submitting the detailed request for Safe Harbor, but use of the form is not required. The comprehensive written request may be in any written format provided the above minimum information is included.
(5) The nurse invoking Safe Harbor is responsible for keeping a copy of the request for Safe Harbor.
(6) A nurse may invoke Safe Harbor to question the medical reasonableness of a physician's order in accordance with TOC §303.005(e) (NPR Law). In this situation, the medical staff or medical director shall determine whether the order was reasonable.
(e) Safe Harbor Protections.
(1) To activate protections outlined in TOC §303.005(c) and paragraph (2) of this subsection, the nurse shall:
(A) invoke Safe Harbor in good faith;
(B) notify the supervisor in writing that he/she intends to invoke Safe Harbor in accordance with subsection (d) of this section. This must be done prior to engaging in the conduct or assignment for which safe harbor is requested and at any of the following times:
(i) when the conduct is requested or assignment made;
(ii) when changes occur in the request or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned that a nurse believes in good faith that patient harm may result; or
(iii) when the nurse refuses to engage in the requested conduct or assignment.
(2) Texas Occupations Code §303.005(c) and (h) (NPR Law), provide the following protections:
(A) A nurse may not be suspended, terminated, or otherwise disciplined or discriminated against for requesting Safe Harbor in good faith.
(B) A nurse or other person may not be suspended, terminated, or otherwise disciplined or discriminated against for advising a nurse in good faith of the nurse's right to request a determination, or of the procedures for requesting a determination.
(C) A nurse is not subject to being reported to the Board and may not be disciplined by the Board for engaging in the conduct awaiting the determination of the peer review committee as permitted by subsection (g) of this section. A nurse's protections from disciplinary action by the Board for engaging in the conduct or assignment awaiting peer review determination remain in place for 48 hours after the nurse is advised of the peer review committee's determination. This time limitation does not affect the nurse's protections from retaliation by the facility, agency, entity or employer under TOC §303.005(h) (NPR Law) for requesting Safe Harbor.
(3) If retaliation occurs, TOC §301.413 (NPA) provides a nurse the right to file civil suit to recover damages. The nurse may also file a complaint with the appropriate regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.
(4) Safe Harbor protections do not apply to any civil action for patient injury that may result from the nurse's practice.
(f) Exclusions to Safe Harbor Protections.
(1) A nurse's protections from disciplinary action by the Board under subsection (e)(2) of this section do not apply to:
(A) the nurse who invokes Safe Harbor in bad faith;
(B) conduct the nurse engages in prior to the request for Safe Harbor; or
(C) conduct unrelated to the reason for which the nurse requested Safe Harbor.
(2) If the peer review committee determines that a nurse has engaged in conduct subject to reporting that is not related to the request for Safe Harbor, the committee must comply with the requirements of §217.19 (Incident-Based Nursing Peer Review) of this title.
(g) Nurse's Right To Refuse To Engage In Certain Conduct Pending Nursing Safe Harbor Peer Review Determination.
(1) A nurse invoking safe harbor may engage in the requested conduct or assignment while awaiting peer review determination unless the conduct or assignment is one in which:
(A) the nurse lacks the basic knowledge, skills, and abilities that would be necessary to render the care or engage in the conduct requested or assigned at a minimally competent level such that engaging in the requested conduct or assignment would expose one or more patients to an unjustifiable risk of harm; or
(B) the requested conduct or assignment would constitute unprofessional conduct and/or criminal conduct such as fraud, theft, patient abuse, exploitation, or falsification.
(2) If a nurse refuses to engage in the conduct or assignment because it is beyond the nurse's scope as described under paragraph (1)(A) of this subsection:
(A) the nurse and supervisor must collaborate in an attempt to identify an acceptable assignment that is within the nurse's scope and enhances the delivery of safe patient care; and
(B) the results of this collaborative effort must be documented in writing and maintained in peer review records by the chair of the peer review committee.
(h) Minimum Due Process.
(1) A person or entity required by TOC §303.005(i) to provide nursing peer review shall adopt and implement a policy to inform nurses of their right to request a nursing peer review committee determination (Safe Harbor Nursing Peer Review) and the procedure for making a request.
(2) In order to meet the minimum due process required by TOC chapter 303, the nursing peer review committee shall:
(A) comply with the membership and voting requirements as set forth in TOC §303.003;
(B) exclude from the committee membership, any persons or person with administrative authority for personnel decisions directly affecting the nurse;
(C) limit attendance at the Safe Harbor Nursing Peer Review hearing by a CNO, nurse administrator, or other individual with administrative authority over the nurse, including the individual who requested the conduct or made the assignment, to appearing before the safe harbor peer review committee to speak as a fact witness; and
(D) Permit the nurse requesting safe harbor to:
(i) appear before the committee;
(ii) ask questions and respond to questions of the committee; and
(iii) make a verbal and/or written statement to explain why he or she believes the requested conduct or assignment would have violated a nurse's duty to a patient.
(i) Safe Harbor Timelines.
(1) The Safe Harbor Nursing Peer Review committee shall complete its review and notify the CNO or nurse administrator within 14 calendar days of when the nurse requested Safe Harbor.
(2) Within 48 hours of receiving the committee's determination, the CNO or nurse administrator shall review these findings and notify the nurse requesting safe harbor of both the committee's determination and whether the administrator believes in good faith that the committee's findings are correct or incorrect.
(3) The nurse's protection from disciplinary action by the Board for engaging in the conduct or assignment awaiting peer review determination expires 48 hours after the nurse is advised of the peer review committee's determination. The expiration of this protection does not affect the nurse's protections from retaliation by the facility, agency, entity or employer under TOC §303.005(h) for requesting Safe Harbor.
(j) General Provisions.
(1) The Chief Nursing Officer (CNO) or nurse administrator of a facility, association, school, agency, or of any other setting that utilizes the services of nurses 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 the NPA and the NPR law.
(2) Safe Harbor Nursing Peer Review must be conducted in good faith. A nurse who knowingly participates in nursing peer review in bad faith is subject to disciplinary action by the Board.
(3) The peer review committee and participants shall comply with the confidentiality requirement of TOC §303.006 and §303.007 relating to confidentiality and limited disclosure of peer review information.
(4) If a nurse requests a Safe Harbor Peer Review determination under TOC §303.005(b) and refuses to engage in the requested conduct or assignment pending the safe harbor peer review, the determinations of the committee are not binding if the CNO or nurse administrator believes in good faith that the committee has incorrectly determined a nurse's duty.
(A) In accordance with TOC §303.005(d), the determination of the safe harbor peer review committee shall be considered in any decision by the nurse's employer to discipline the nurse for the refusal to engage in the requested conduct.
(B) If the CNO or nurse administrator in good faith disagrees with the committee's determination, the rationale for disagreeing must be recorded and retained with the peer review records.
(C) If the CNO or nurse administrator believes the peer review was conducted in bad faith, she/he has a duty to report the nurses involved under TOC §301.402 (NPA) and 22 TAC §217.11(1)(K) of this title.
(D) This section does not affect the protections under TOC §303.005(c)(1) and §301.352 relating to a nurse's protection from disciplinary action or discrimination for making a request for Safe Harbor Peer Review.
(k) Use of Informal Work Group In Safe Harbor Nursing Peer Review. A facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee provided that the final determination of the nurse's duty complies with the time lines set out in this rule and there are written policies for the informal workgroup that require:
(1) the nurse to:
(A) be informed how the informal workgroup will function and that the nurse does not waive any right to peer review by accepting or rejecting the use of an informal workgroup; and
(B) consent, in writing, to the use of an informal workgroup;
(2) the informal workgroup to comply with the membership and voting requirements of subsection (h) of this section;
(3) the nurse to be provided the opportunity to meet with the informal workgroup;
(4) the nurse to have the right to reject any decision of the informal workgroup and have the entire committee determine if the requested conduct or assignment violates the nurse's duty to the patient(s), in which event members of the informal workgroup shall not participate in that determination;
(5) ratification by the safe harbor peer review committee chair person of any decision made by the informal workgroup. If the chair person disagrees with a determination of the informal workgroup, the chair person shall convene the full peer review committee to review the conduct in question; and
(6) the peer review chair person communicate any decision of the informal work group to the CNO or nurse administrator.
(l) Reporting Conduct of other Practitioners or Entities; Whistleblower Protections.
(1) This subsection does not expand the authority of any safe harbor peer review committee or the Board to make determinations outside the practice of nursing.
(2) In a written, signed report to the appropriate licensing Board or accrediting body, and in accordance with TOC §301.4025, a nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to:
(A) minimum standards of acceptable and prevailing professional practice, for a report made regarding a practitioner; or
(B) statutory, regulatory, or accreditation standards, for a report made regarding an agency or facility.
(3) A nurse may report to the nurse's employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.
(4) A person may not suspend or terminate the employment of, or otherwise discipline or discriminate against, a person who reports, without malice, under this section. A violation of this subsection is subject to TOC §301.413 that provides a nurse the right to file civil suit to recover damages. The nurse may also file a complaint with the regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.
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 January 29, 2008.
TRD-200800500
Katherine Thomas
Executive Director
Texas Board of Nursing
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 305-6823
The Texas Board of Nursing proposes an amendment to 22 Texas Administrative Code §223.1, concerning Fees. Effective October 1, 2007, the fee for an Federal Bureau of Investigations (FBI) fingerprint-based criminal history record information, a/k/a criminal background check, was temporarily reduced from $24 to $19.25. (The Texas Department of Public Safety's fee is still $15.) This fee is for an interim period and subject to change. Due to the variable nature of the fee imposed by the FBI and the Texas Department of Public Safety (DPS), the Board grants discretion to the Staff to adjust the fee, as needed, to reflect the actual fee being imposed by the FBI and the DPS instead of coming to the Board each time the fee is changed and requesting the authority to adjust the fee and amend the rule.
Katherine Thomas, Executive Director, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local government as a result of implementing the proposed amendment.
Ms. Thomas has also determined that for each year of the first five years the proposed amendment is in effect, the public benefit will be that nurse licensees and potential licensees will only be charged for the actual cost of fingerprint criminal background checks. There will be no effect on small businesses.
Written comments on the proposal may be submitted by mail to Joy Sparks, Assistant General Counsel, Texas Board of Nursing, 333 Guadalupe Street, Suite 3-460, Austin, Texas 78701; by e-mail to joy.sparks@bon.state.tx.us; or by facsimile to (512) 305-8101.
The amendment is proposed pursuant to the authority of Texas Occupations Code §301.151 and §301.152 which authorize the Texas Board of Nursing to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.
No other statutes, articles, or codes are affected by this proposal.
§223.1.Fees.
(a) The Texas Board of Nursing has established reasonable and necessary fees for the administration of its functions.
(1) - (21) (No change.)
(22)
fee for
Federal Bureau of Investigations
(FBI) and Department of Public Safety (DPS) criminal background check
for licensees, initial licensure applicants and endorsement applicants
as determined by fees imposed by the Criminal Justice Information
Services (CJIS) Division and the Texas Department of Public Safety
[
: $39
]; and
(23) (No change.)
(b) (No change.)
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 January 29, 2008.
TRD-200800514
Katherine Thomas
Executive Director
Texas Board of Nursing
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 305-6823