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TITLE 22EXAMINING BOARDS
PART 11TEXAS BOARD OF NURSING
CHAPTER 217LICENSURE, PEER ASSISTANCE AND PRACTICE
RULE §217.20Safe Harbor Peer Review for Nurses 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 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 nursing care, and a determination or recommendation regarding a complaint. The term also includes the provision of information, advice, and assistance to nurses and other persons relating to the rights and obligations of and protections for nurses who raise care concerns, report under Chapter 301, request peer review, and the resolution of workplace and practice questions relating to nursing and patient care. 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, suspension, termination, discipline, discrimination, 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

Cont'd...

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