| (2) A facility conducting incident-based nursing 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 nursing 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
nursing 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 nursing 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 nursing 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 nursing 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 nursing 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
nursing 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 nursing 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 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
Cont'd... |
