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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

  (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.

    (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 nursing 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 nursing 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 nursing 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.

    (A) For errors involving the death or serious injury of a patient, if a nursing peer review committee makes a determination that a nurse has not engaged in conduct subject to reporting to the Board, the committee must maintain documentation of the rationale for its belief that the nurse's conduct failed to meet each of the factors in the definition of "conduct subject to reporting", as defined in TOC §301.401(1)(A) - (D) and subsection (a)(4)(A) - (D) of this section.

    (B) Conduct subject to reporting means conduct by a nurse that:

      (i) violates the NPA or a Board rule and contributed to the death or serious injury of a patient;

      (ii) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;

      (iii) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or

      (iv) 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.

  (2) An incident-based nursing peer review committee shall consider whether a nurse's conduct constitutes one or more minor incidents under §217.16 of this title. A nursing peer review committee receiving a report involving a minor incident or incidents must review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continued practice poses a risk of harm to patients or other persons and whether remediation would be reasonably expected to adequately mitigate such risk, if it exists. The committee must consider the factors set out in §217.16(d) of this title. In accordance with §217.16, 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 nursing peer review committee determines cannot be categorized as a minor incident(s); or

    (C) if a nurse terminates employment while undergoing remediation activities as directed by a nursing peer review committee under paragraph (2)(A) of this subsection, the nursing peer review committee may:

    (I) report the nurse to the Board;

    (II) report to the nursing peer review committee of the new employer, if known, with the nurse's written consent; or

Cont'd...

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