| (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 nursing 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 nursing
peer review record to be included whenever the committee's findings
are disclosed;
(4) An incident-based nursing 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
nursing 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 nursing peer review hearing must comply with the
facility's incident-based nursing 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 nursing 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 nursing
peer review committee is present at the incident-based nursing peer
review hearing in any capacity, including serving as a member of the
incident-based nursing 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 nursing peer review, the nurse
waives any right to procedural due process under TOC §303.002
(NPR Law) and this subsection.
(e) Use of Informal Workgroup In Incident Based Nursing
Peer Review. A facility may choose to initiate an informal review
process utilizing a workgroup of the nursing incident-based nursing
peer review committee provided there are written policies for the
informal workgroup that require:
(1) the nurse be informed of how the informal workgroup
will function, and consent, in writing, to the use of an informal
workgroup. A nurse does not waive any right to incident-based nursing
peer review by accepting or rejecting the use of an informal workgroup;
(2) if the informal workgroup suspects that the nurse's
practice is impaired by chemical dependency or diminished mental capacity,
the chairperson must be notified to determine if nursing 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 workgroup 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 workgroup;
(5) the nurse have the right to reject any decision
of the informal workgroup and to then have his/her conduct reviewed
by the nursing peer review committee, in which event members of the
informal workgroup shall not participate in that determination; and
(6) ratification by the committee chairperson of any
decision made by the informal workgroup. If the chairperson disagrees
with a determination of the informal workgroup, the chairperson shall
convene the full nursing peer review committee to make a determination
regarding the conduct in question; and
(7) the chairperson communicate any decision of the
informal workgroup 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) nursing 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 Nursing 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, nursing 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 nursing 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 nursing 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 nursing peer review committee, including an entity
contracted to conduct nursing 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.
Cont'd... |
