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TITLE 22EXAMINING BOARDS
PART 11TEXAS BOARD OF NURSING
CHAPTER 217LICENSURE, PEER ASSISTANCE AND PRACTICE
RULE §217.19Incident-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 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) (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 §301.401(1) and §301.402(e) (NPA) (relating to alternate reporting by nurses to nursing peer review when a nurse engages in conduct subject to reporting), §301.403 (relating to nursing peer review committee reporting), §301.405(c) (relating to nursing 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

Cont'd...

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