| (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 Nursing Peer Review--Incident-based
nursing 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
nursing peer review, and the resolution of workplace and practice
questions relating to nursing and patient care. The nursing 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. Nursing peer review conducted
by any entity must comply with NPR Law and with applicable Board rules
related to incident-based or safe harbor nursing 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
nursing 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 nursing 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 nursing 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 nursing 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 nursing 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 eight
(8) or more nurses (for nursing peer review of an RN, at least four
(4) of the 8 must be RNs) to permit a nurse to request safe harbor
nursing 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) Notification Requirements.
(A) 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 Safe Harbor Quick Request described in paragraph (3) of this
subsection. If a nurse is unable to complete a Safe Harbor Quick Request
or other written form meeting the requirements for a Safe Harbor Quick
Request due to immediate patient care needs, the nurse may orally
invoke safe harbor by notifying the nurse's supervisor of the request.
A detailed written account of the safe harbor request that meets the
requirements of the Comprehensive Written Request for Safe Harbor
Nursing Peer Review described in paragraph (4) of this subsection
must be completed before leaving the work setting at the end of the
work period.
(B) After receiving oral notification of a request,
the nurse's supervisor must record in writing the requirements described
in paragraph (3) of this subsection, which must be signed and attested
to by the requesting nurse and the nurse's supervisor who prepared
the written record.
(3) Safe Harbor Quick Request. The BON Safe Harbor
Quick Request Form may be used to initially invoke safe harbor, but
use of the form is not required. The initial request may be in any
written format, but must include the following information:
(A) the name of the nurse making the request and his/her
signature;
(B) the date and time of the request;
(C) the location where the conduct or assignment that
is the subject of the request occurred;
(D) the name of the person who requested the nurse
engage in the conduct or made the assignment that is the subject of
the request;
(E) the name of the supervisor recording the request,
if applicable;
(F) a brief explanation of why the nurse is requesting
a nursing peer review committee determination; and
(G) a description of the collaboration between the
nurse and the supervisor, if applicable.
(4) Comprehensive Written Request for Safe Harbor Nursing
Peer Review.
(A) A nurse who invokes safe harbor must supplement
the initial written request under paragraph (2) 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 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 nursing 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 Written Request for Safe
Harbor Nursing Peer Review Form may be used when submitting the detailed
request for safe harbor, but use of the form is not required. The
request may be in any written format provided the information specified
in subparagraph (A) of this paragraph is included.
(5) The nurse invoking safe harbor is responsible for
keeping a copy of the request for safe harbor.
Cont'd... |
