Part 11. TEXAS BOARD OF NURSING
Chapter 217. LICENSURE, PEER ASSISTANCE AND PRACTICE
The Texas Board of Nursing (BON) adopts without changes the repeal of 22 Texas Administrative Code §217.19 (Incident-Based Nursing Peer Review), and §217.20 (Safe Harbor Peer Review for Nurses). The proposed repeals were published in the February 15, 2008, edition of the Texas Register (33 TexReg 1222). The Board is concurrently adopting new rules to replace the repealed sections.
Senate Bill 993 (relating to nursing peer review) from the 2007 legislative session implemented new changes to the peer review process, so the BON based on a recommendation by its Nursing Practice Advisory Committee, adopts the repeal of the existing peer review rules in order to address these changes. Concurrent with these repeals, the BON adopts new rules addressing peer review, safe harbor, and whistleblower protections.
No comments were received in response to the proposals.
The adoption 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.
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 21, 2008.
TRD-200802085
Katherine Thomas
Executive Director
Texas Board of Nursing
Effective date: May 11, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 305-6823
The Texas Board of Nursing (BON or board) adopts new §217.19, concerning Incident-Based Nursing Peer Review and Whistleblower Protections, and §217.20, concerning Safe Harbor Peer Review. The new rules are adopted with changes to the proposed text as published in the February 15, 2008, issue of the Texas Register (33 TexReg 1222).
Concurrent with these adopted new rules are the adopted repeals of the existing rules. The changes adopted by the Board are editorial and for the purpose of clarifying the original proposed language. For purposes of consistency and clarification, changes were made in §217.19 to: subsection (a)(1) - definition of assignment is changed to read like the definition of assignment in §217.20; subsection (d)(2)(A) - remove phrase "paragraph (3)(F) of" and leave it as "required by this subsection"; subsection (e)(6) - delete phrase "to remediate a nurse for one or more minor incidents" as the chair person has broader authority than this phrase denotes; subsection (f)(1) and (2) - move the "or" from paragraph (1) to paragraph (2); subsection (g)(4) - add to the phrase "reporting the nurse to the Board" the additional phrase "or a Board-approved peer assistance program" and correct the reference to "paragraph (2)" to "paragraph (1)"; and change subsection (m)(2)(B)(i) and (ii) to subsection (m)(3) and (4). Finally, in §217.20(d)(4)(A)(iii), remove the last sentence regarding a nurse's refusal to engage in requested conduct or an assignment, because this issue is repeated and more clearly addressed in §217.20(d)(4)(A)(iv).
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. The peer review process is outlined in Texas Occupations Code, Chapter 303, Nursing Peer Review. Reporting requirements are found in Texas Occupations Code, Chapter 301 (Nursing Practice Act).
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 (§217.11(1)(B)).
With regard to Safe Harbor Peer Review (§217.20), besides arranging the rule for better flow and understanding, additions include addressing the nurse's due process rights, and providing for a nurse to do a brief "initial" request for safe harbor at the time asked to engage in the conduct, with provision to complete the more detailed request later in the same work period but prior to leaving the work area.
The rules were originally proposed in the November 2, 2007, issue of the Texas Register (32 TexReg 7845), but due to extensive comments and recommendations made to the first proposed new peer review rules, during the January 2008 board meeting, the board approved several substantive changes in response to comments, primarily to §217.20, and moved to withdraw (33 TexReg 1087) and re-propose the new peer review rules.
Two comments were received in response to the proposal. Texas Nurses Association (TNA) submitted a comment in support of the proposed rules, and one individual expressed some concerns.
Comment: Regarding §217.19(a) and §217.20(a), the commenter asked if the list of committees contained within the definition of "Patient Safety Committee" (in both rules) was intended to be exclusive with regard to the specified entities, or if the intent was "including but not limited to"? An additional concern/comment added to this question was that "permitting a hospital to completely control a patient safety committee is tantamount to a self evaluation which is completely subjective; the likelihood of a self report to a licensing or accrediting body is unlikely."
Response: In both rules, paragraph (13) Patient Safety Committee, subpargraphs (A) and (B) come straight from the statute language in §303.0075 of the Nursing Peer Review Law (NPR). The Nursing Practice Advisory Committee (NPAC) added proposed language in subparagraph (C) to include provision for "a multi-disciplinary team that includes nursing representation or any committee established by the same entity to promote best practices and patient safety, may apply as appropriate."
A number of national patient safety organizations have promoted the utilization of multi-disciplinary teams to remedy system breakdowns relating to patient safety initiative for several years. Examples include the Institute of Safe Medication Practices, http://www.ismp.org, the Agency for Healthcare Research and Quality, http://www.ahrq.gov/, and the Joint Commission, http://www.jointcommission.org/.
The board believes the NPAC proposed language in subparagraph (C) makes it clear that there is no limitation strictly to the entities listed in the definition. The term "patient safety committee" itself is seen as a generic term used legislatively since it would be impossible to know the names of every committee active within a given setting to investigate error events and recommend changes appropriate to the setting.
The BON does not regulate hospitals or practice settings of any kind; therefore, the BON has no authority to mandate who "controls the patient safety committee." The BON's jurisdiction extends up to the Chief Nursing Officer (CNO), nurse administrator, or top nursing position by any other title. A CNO, nurse administrator or other nurse in a similar nursing leadership position can be reported to the BON and investigated for failing to assure that peer review processes are conducted in good faith. Recommend no changes to proposed rule language.
Comment: Regarding §217.19(a)(17) and §217.20(a)(17), the commenter states that "Whistleblower protections need to be strengthened; penalties for a hospitals' refusal to give a nurse safe harbor peer review (beyond reporting the DON or CNE to the BON) should be considered. Otherwise, the Board will be inundated with complaints that an already overburdened staff would have to deal with."
Response: As noted in an earlier BON response, the BON does not regulate hospitals or practice settings of any kind; therefore, the BON has no authority to propose sanctions on a facility, agency, or other employer of nurses. The NPA also prohibits board members and staff from lobbying the Texas Legislature regarding bills that would amend the parts of the Texas Occupations Code relating to the practice of nursing. Nurses are encouraged to work through their professional organizations, as these organizations can lobby the Legislature for bills that can impact work setting and employment issues for nurses. The BON does not have the authority to amend the rules as suggested in this comment. No changes will be made to proposed rule language.
Comment: Regarding §217.19(a)(5) and §217.20(a)(5), the commenter states concern for the language in the BON's definition of "duty to a patient" regarding the phrase "and to avoid engaging in unprofessional conduct (§217.12 of this title). " Commenter states that "Notwithstanding the fact that the Nurse Practice Act (Texas Occupations Code §301.352) specifically addresses refusal of unsafe assignments, the proposed language arguably dilutes the statute by Rule, conjoining the §217.11 (Standards of Nursing Practice) obligations with an unprofessional conduct requirement."
Response: The BON believes the above perception of the proposed rule language is inaccurate. In both incident-based and safe harbor situations, a nursing peer review committee could find that they are dealing with a situation where either a nurse has knowingly engaged in unprofessional conduct (such as stealing from a patient), or where a nurse has invoked safe harbor because he/she was directed to engage in unprofessional conduct (such as falsifying a patient's medical record). The BON expects a nurse to avoid engaging in conduct that could cause harm to the patient. The Board further believes the distinction of when a nurse would be justified in refusing an assignment is sufficiently addressed in §217.20(g). No changes will be made to proposed rule language.
Comment: Regarding §217.20(g), the commenter states concern that this section "essentially requires that the nurse take the assignment and artificially limits her ability to refuse in accordance with the statute Texas Occupations Code §310.352 and with §217.11(1)(T)." A further comment on this topic speaks to the lack of a definition for "unjustifiable risk of harm" in relation to the nurse's duty to maintain client safety when considering a nursing assignment and concern that rule language "obscures" the findings of a landmark court case Lunsford vs. BNE.
Response: NPAC suggested language in §217.20(g) provides clarification for what the BON considers to be "good faith" reasons for refusing to engage in requested conduct or an assignment. The BON believes this language is important to differentiate and provide guidance to nurses with regard to when it is appropriate to refuse versus to accept the first offered assignment when invoking safe harbor.
Take the situation in which a nurse had her license sanctioned by the BON for invoking Safe Harbor in "bad faith" and not only refusing to engage in conduct, but leaving the facility. In this instance, neither the acuity or number of patients assigned on the nurse's home unit exceeded levels routinely handled by nurses in the practice setting. Despite the nursing supervisor obtaining additional staff, the nurse refused the assignment and left the premises, leaving nursing colleagues who were tired after working for 12 hours, to continue caring for expectant mothers and their unborn infants.
Applying the above example to the proposed rule section in question, §217.20(g)(2)(A) would require the nurse refusing the assignment to "...collaborate in an attempt to identify an acceptable assignment that is within the nurse's scope and enhances the delivery of safe patient care." The rule does not mandate the nurse accept an assignment but rather directs that the nurse must at least communicate his/her concerns with the supervisor, and that the supervisor, in turn, must try to address the issue both nurses acting in the best interest of patient safety (§217.11(1)(B)). In other words, simply handing the safe harbor form to the supervisor and walking out is not acceptable or considered acting in "good faith."
What constitutes "unjustifiable risk of harm" cannot be defined in rule as it will vary in every practice setting and situation. This highlights the premise of safe harbor to have a peer review committee of nurses from the practice setting in question review the conduct requested when a nurse invokes safe harbor. Who better than other nurses from the same practice setting to make an accurate determination of the nurse's "duty" and what would constitute "unjustifiable risk of harm"? A nursing peer review committee must consider the nurse's duty under §217.11(1)(B), which is further described in relation to the Lunsford vs. BNE landmark case in Board Position Statement 15.14, Duty of a Nurse in Any Setting, at http://www.bon.state.tx.us/practice/position.html#15.14.
In addition, the comments received demonstrate the risks of taking part of a board rule, i.e. §217.20(j)(4), out of context. Section 217.20(j)(4)(A) - (D) clarify that even if a CNO/nurse administrator disagrees with the determination of the peer review committee, this does not nullify the nurse's protections from employer retaliation set forth in NPR Law §303.005(c) relating to either a nurse's refusal to engage in certain conduct under Nursing Practice Act (NPA) §301.352, or for requesting a Safe Harbor Peer Review determination. The subsections further list required actions of the CNO if he/she takes action not supported by the peer review committee's findings.
Additionally, NPA statutes, §301.405(b) and §301.403, clearly indicate separate reporting requirements for peer review and the nurse's employer. Given the multitude of sections in the statute and proposed rules, including §217.20(j)(4)(D), that prohibit employer retaliation, the only reason a CNO or nurse administrator could differ with the safe harbor peer review committee's findings would be if he/she believed the nurse did not invoke safe harbor in good faith, in which case a report to the board would be required under §217.11(1)(K) and potentially §301.405(b) depending upon the employment action taken. No changes will be made to proposed rule language.
Comment: Commenter states that "Safe Harbor is no protection for loss of license, employment, or civil liability." Further statements address concerns for rule language regarding peer review committee determinations being non-binding if the CNO or nurse administrator believe in good faith that the committee has incorrectly determined a nurse's duty.
Response: First, language regarding the decision of peer review being non-binding on the CNO or nurse administrator has been in the NPA, §303.005(d), for many years as well as in the current Safe Harbor, 22 TAC §217.20 (2003). The BON cannot change or ignore statute.
The statute in NPA §301.352, mentioned earlier in the commenter's letter, does provide a nurse with civil recourse should the nurse's employer engage in retaliatory action with regard to the nurse's employment for invoking Safe Harbor or refusing to engage in conduct that violates the statutes or board rules. Senate Bill 993 (the same bill that initiated the current proposed changes to the peer review rules) did strengthen a nurse's protection from employer retaliation. Current NPA §301.413, and NPR Law §303.005(c), (d), and (h), along with proposed §217.20(e)(2) - (3) and (i)(3) address the prohibition of retaliatory action by an employer against the nurse who either invokes safe harbor or refuses in good faith to engage in conduct that the nurse believes could violate his/her duty to a patient. As the BON does not regulate employment issues or practice settings, the BON has no authority to impose any penalty on an employer. This is, and always has been, a private civil matter for the nurse to pursue.
As for civil liability protection for the nurse, this also is and always has been beyond the authority of the BON's regulations. The language in the new rules does not, and cannot, impact civil liability.
With regard to Commenter's statement that "safe harbor is no protection for loss of license," this is factually incorrect. Both past and current statutes and rules on Safe Harbor have provided the nurse protection against BON licensure sanctions, including revocation, provided the nurse invoked Safe Harbor in good faith. The BON would be lax in its mission to protect the public if it approved rule language that unequivocally exonerated a nurse for refusing an assignment without regard to the nurse's intent to engage in unprofessional conduct versus upholding his/her duty to the patient. In addition, board statutes and rules relating to procedural due process with regard to investigation of alleged violations of the NPA and board rules further provide a nurse the opportunity to demonstrate good faith efforts to comply with BON statutes and rules. No changes will be made to proposed rule language.
The new rules are adopted 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.
§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 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 (TOC) §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 TOC. Nurses involved in nursing peer review must comply with the NPR Law.
(12) Nursing Practice Act (NPA)--Chapter 301 of the 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, TOC §§151.001, et seq.);
(B) a medical committee under Chapter 161, Subchapter D 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 TOC §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 TOC 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 §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. TOC §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 this subsection;
(B) confidentiality and safeguards to prevent impermissible disclosures including written agreement by all parties to abide by TOC §§303.006, 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 Chapter 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, 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);
(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; or
(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 (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 or a Board-approved peer assistance program in accordance with paragraph (1) 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 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 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, 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.
(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 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 (TOC) §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 TOC. Nurses involved in nursing peer review must comply with the NPR Law.
(12) Nursing Practice Act (NPA)--Chapter 301 of the 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, TOC §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 TOC §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 TOC 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) and this section; 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 this section must comply with subsection (g) of this section 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 §217.19(j)(2) of this title.
(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) TOC §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.
(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) TOC §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 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 §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 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 21, 2008.
TRD-200802086
Katherine Thomas
Executive Director
Texas Board of Nursing
Effective date: May 11, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 305-6823
Chapter 329. LICENSING PROCEDURE
The Texas Board of Physical Therapy Examiners adopts amendments to §329.5, concerning Licensing Procedures for Foreign-Trained Applicants, without changes to the proposed text as published in the March 7, 2008, issue of the Texas Register (33 TexReg 1954). The amendments make it easier for foreign-trained applicants to apply for an exception to the required score for the CBT Test of Spoken English. They also align the number of professional education hours required by the Board with the standards set by the Federation of State Boards of Physical Therapy in the Coursework Evaluation Tool.
The amendments allow applicants to use physical therapists licensed in the U.S. rather than Texas to attest to their abilities to communicate in English. They also increase the amount of professional education required to 90 hours, the minimum number required to accredited PT programs in the U.S.
No comments were received regarding the proposed amendments.
The amendments are adopted under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
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 16, 2008.
TRD-200801982
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Effective date: May 6, 2008
Proposal publication date: March 7, 2008
For further information, please call: (512) 305-6900