| (6) A nurse may invoke safe harbor to question the
medical reasonableness of a physician's order in accordance with TOC §303.005(e)
(NPR Law). In this situation, the medical staff or medical director
shall determine whether the order was reasonable.
(e) Safe Harbor Protections.
(1) To activate protections outlined in TOC §303.005(c)
and paragraph (2) of this subsection, the nurse shall:
(A) invoke safe harbor in good faith;
(B) notify the supervisor that he/she intends to invoke
safe harbor in accordance with subsection (d) of this section. This
must be done prior to engaging in the conduct or assignment for which
safe harbor is requested and at any of the following times:
(i) when the conduct is requested or assignment made;
(ii) 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
(iii) when the nurse refuses to engage in the requested
conduct or assignment.
(2) TOC §303.005(c) and (h) (NPR Law) and §301.352
provide the following protections:
(A) A nurse may not be suspended, terminated, or otherwise
disciplined, retaliated, or discriminated against for requesting safe
harbor in good faith.
(B) A nurse or other person may not be suspended, terminated,
or otherwise disciplined, retaliated, or discriminated against for
advising a nurse in good faith of the nurse's right to request a determination,
or of the procedures for requesting a determination.
(C) A nurse is not subject to being reported to the
Board and may not be disciplined by the Board for engaging in the
conduct awaiting the determination of the nursing peer review committee
as permitted by subsection (g) of this section. A nurse's protections
from disciplinary action by the Board for engaging in the conduct
or assignment awaiting nursing peer review determination remain in
place for 48 hours after the nurse is advised of the nursing peer
review committee's determination. This time limitation does not affect
the nurse's protections from retaliation by the facility, agency,
entity or employer under TOC §303.005(h)(NPR Law) for requesting
safe harbor.
(3) If retaliation occurs, TOC §301.413 (NPA)
provides a nurse the right to file civil suit to recover damages.
The nurse may also file a complaint with the appropriate regulatory
agency that licenses or regulates the nurse's practice setting. The
BON does not have regulatory authority over practice settings or civil
liability.
(4) Safe harbor protections do not apply to any civil
action for patient injury that may result from the nurse's practice.
(f) Exclusions to Safe Harbor Protections.
(1) A nurse's protections from disciplinary action
by the Board under subsection (e)(2) of this section do not apply
to:
(A) the nurse who invokes safe harbor in bad faith;
(B) conduct the nurse engages in prior to the request
for safe harbor; or
(C) conduct unrelated to the reason for which the nurse
requested safe harbor.
(2) If the nursing peer review committee determines
that a nurse has engaged in conduct subject to reporting that is not
related to the request for safe harbor, the committee must comply
with the requirements of §217.19 of this title.
(g) Nurse's Right to Refuse to Engage in Certain Conduct
Pending Nursing Safe Harbor Nursing Peer Review Determination.
(1) A nurse invoking safe harbor may engage in the
requested conduct or assignment while awaiting nursing peer review
determination unless the conduct or assignment is one in which:
(A) the nurse lacks the basic knowledge, skills, and
abilities that would be necessary to render the care or engage in
the conduct requested or assigned at a minimally competent level such
that engaging in the requested conduct or assignment would expose
one or more patients to an unjustifiable risk of harm; or
(B) the requested conduct or assignment would constitute
unprofessional conduct and/or criminal conduct such as fraud, theft,
patient abuse, exploitation, or falsification.
(2) If a nurse refuses to engage in the conduct or
assignment because it is beyond the nurse's scope as described under
paragraph (1)(A) of this subsection:
(A) the nurse and supervisor must collaborate in an
attempt to identify an acceptable assignment that is within the nurse's
scope and enhances the delivery of safe patient care; and
(B) the results of this collaborative effort must be
documented in writing and maintained in nursing peer review records
by the chair of the nursing peer review committee.
(h) Minimum Due Process.
(1) A person or entity required by TOC §303.005(i)
to provide nursing peer review shall adopt and implement a policy
to inform nurses of their right to request a nursing peer review committee
determination (safe harbor nursing peer review) and the procedure
for making a request.
(2) In order to meet the minimum due process required
by TOC Chapter 303, the nursing peer review committee shall:
(A) comply with the membership and voting requirements
as set forth in TOC §303.003;
(B) exclude from the committee membership, any persons
or person with administrative authority for personnel decisions directly
affecting the nurse;
(C) limit attendance at the safe harbor nursing peer
review hearing by a CNO, nurse administrator, or other individual
with administrative authority over the nurse, including the individual
who requested the conduct or made the assignment, to appearing before
the safe harbor nursing peer review committee to speak as a fact witness;
and
(D) Permit the nurse requesting safe harbor to:
(i) appear before the committee;
(ii) ask questions and respond to questions of the
committee; and
(iii) make a verbal and/or written statement to explain
why he or she believes the requested conduct or assignment would have
violated a nurse's duty to a patient.
(i) Safe Harbor Timelines.
(1) The safe harbor nursing peer review committee shall
complete its review and notify the CNO or nurse administrator within
14 calendar days of when the nurse requested safe harbor.
(2) Within 48 hours of receiving the committee's determination,
the CNO or nurse administrator shall review these findings and notify
the nurse requesting safe harbor of both the committee's determination
and whether the administrator believes in good faith that the committee's
findings are correct or incorrect.
(3) The nurse's protection from disciplinary action
by the Board for engaging in the conduct or assignment awaiting nursing
peer review determination expires 48 hours after the nurse is advised
of the nursing peer review committee's determination. The expiration
of this protection does not affect the nurse's protections from retaliation
by the facility, agency, entity or employer under TOC §303.005(h)
for requesting safe harbor.
(j) General Provisions.
(1) The Chief Nursing Officer (CNO) or nurse administrator
of a facility, association, school, agency, or of any other setting
that utilizes the services of nurses is responsible for knowing the
requirements of this Rule and for taking reasonable steps to assure
that nursing peer review is implemented and conducted in compliance
with the NPA and the NPR law.
(2) Safe harbor nursing peer review must be conducted
in good faith. A nurse who knowingly participates in nursing peer
review in bad faith is subject to disciplinary action by the Board.
(3) The nursing peer review committee and participants
shall comply with the confidentiality requirement of TOC §303.006
and §303.007 relating to confidentiality and limited disclosure
of nursing peer review information.
(4) If a nurse requests a safe harbor nursing peer
review determination under TOC §303.005(b) and refuses to engage
in the requested conduct or assignment pending the safe harbor nursing
peer review, the determinations of the committee are not binding if
the CNO or nurse administrator believes in good faith that the committee
has incorrectly determined a nurse's duty.
(A) In accordance with TOC §303.005(d), the determination
of the safe harbor nursing peer review committee shall be considered
in any decision by the nurse's employer to discipline the nurse for
the refusal to engage in the requested conduct.
(B) If the CNO or nurse administrator in good faith
disagrees with the committee's determination, the rationale for disagreeing
must be recorded and retained with the nursing peer review records.
(C) If the CNO or nurse administrator believes the
nursing peer review was conducted in bad faith, she/he has a duty
to report the nurses involved under TOC §301.402 (NPA) and §217.11(1)(K)
of this title.
(D) This section does not affect the protections under
TOC §303.005(c)(1) and §301.352 relating to a nurse's protection
from disciplinary action or discrimination for making a request for
safe harbor nursing peer review.
(k) Use of Informal WorkGroup In Safe Harbor Nursing
Peer Review. A facility may choose to initiate an informal review
process utilizing a workgroup of the nursing peer review committee
provided that the final determination of the nurse's duty complies
with the time lines set out in this rule and there are written policies
for the informal workgroup that require:
(1) the nurse to:
(A) be informed how the informal workgroup will function
and that the nurse does not waive any right to nursing peer review
by accepting or rejecting the use of an informal workgroup; and
(B) consent, in writing, to the use of an informal
workgroup;
(2) the informal workgroup to comply with the membership
and voting requirements of subsection (h) of this section;
(3) the nurse to be provided the opportunity to meet
with the informal workgroup;
(4) the nurse to have the right to reject any decision
of the informal workgroup and have the entire committee determine
if the requested conduct or assignment violates the nurse's duty to
the patient(s), in which event members of the informal workgroup shall
not participate in that determination;
(5) ratification by the safe harbor nursing peer review
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 review the conduct in question; and
(6) the nursing peer review chairperson communicate
any decision of the informal workgroup to the CNO or nurse administrator.
(l) Reporting Conduct of other Practitioners or Entities;
Whistleblower Protections.
(1) This subsection does not expand the authority of
any safe harbor nursing peer review committee or the Board to make
determinations outside the practice of nursing.
(2) In a written, signed report to the appropriate
licensing Board or accrediting body, and in accordance with TOC §301.4025,
a nurse may report a licensed health care practitioner, agency, or
facility that the nurse has reasonable cause to believe has exposed
a patient to substantial risk of harm as a result of failing to provide
patient care that conforms to:
(A) minimum standards of acceptable and prevailing
professional practice, for a report made regarding a practitioner;
or
(B) statutory, regulatory, or accreditation standards,
for a report made regarding an agency or facility.
(3) A nurse may report to the nurse's employer or another
entity at which the nurse is authorized to practice any situation
that the nurse has reasonable cause to believe exposes a patient to
substantial risk of harm as a result of a failure to provide patient
care that conforms to minimum standards of acceptable and prevailing
professional practice or to statutory, regulatory, or accreditation
standards. For purposes of this subsection, an employer or entity
includes an employee or agent of the employer or entity.
(4) A person may not suspend or terminate the employment
of, or otherwise discipline, retaliate, or discriminate against, a
person who reports, in good faith, under this section or advises a
nurse of the nurse's rights and obligations under this section. A
violation of this subsection is subject to TOC §301.413 that
provides a nurse the right to file civil suit to recover damages.
The nurse may also file a complaint with the regulatory agency that
licenses or regulates the nurse's practice setting. The BON does not
have regulatory authority over practice settings or civil liability.
|
| Source Note: The provisions of this §217.20 adopted to be effective May 11, 2008, 33 TexReg 3633; amended to be effective July 29, 2008, 33 TexReg 5930; amended to be effective January 9, 2012, 37 TexReg 62; amended to be effective April 26, 2018, 43 TexReg 2419; amended to be effective October 22, 2019, 44 TexReg 6031 |
