| (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... |
