| (C) when the nurse refuses to engage in the requested
conduct or assignment.
(2) Notification Requirements.
(A) The nurse must notify the supervisor requesting
the conduct or assignment in writing that the nurse is invoking safe
harbor. The content of this notification must meet the requirements
for a Safe Harbor Quick Request described in paragraph (3) of this
subsection. If a nurse is unable to complete a Safe Harbor Quick Request
or other written form meeting the requirements for a Safe Harbor Quick
Request due to immediate patient care needs, the nurse may orally
invoke safe harbor by notifying the nurse's supervisor of the request.
A detailed written account of the safe harbor request that meets the
requirements of the Comprehensive Written Request for Safe Harbor
Nursing Peer Review described in paragraph (4) of this subsection
must be completed before leaving the work setting at the end of the
work period.
(B) After receiving oral notification of a request,
the nurse's supervisor must record in writing the requirements described
in paragraph (3) of this subsection, which must be signed and attested
to by the requesting nurse and the nurse's supervisor who prepared
the written record.
(3) Safe Harbor Quick Request. The BON Safe Harbor
Quick Request Form may be used to initially invoke safe harbor, but
use of the form is not required. The initial request may be in any
written format, but must include the following information:
(A) the name of the nurse making the request and his/her
signature;
(B) the date and time of the request;
(C) the location where the conduct or assignment that
is the subject of the request occurred;
(D) the name of the person who requested the nurse
engage in the conduct or made the assignment that is the subject of
the request;
(E) the name of the supervisor recording the request,
if applicable;
(F) a brief explanation of why the nurse is requesting
a nursing peer review committee determination; and
(G) a description of the collaboration between the
nurse and the supervisor, if applicable.
(4) Comprehensive Written Request for Safe Harbor Nursing
Peer Review.
(A) A nurse who invokes safe harbor must supplement
the initial written request under paragraph (2) of this subsection
by submitting a comprehensive request in writing before leaving the
work setting at the end of the work period. This comprehensive written
request must include the following information:
(i) the conduct assigned or requested, including the
name and title of the person making the assignment or request;
(ii) a description of the practice setting, e.g., the
nurse's responsibilities, resources available, extenuating or contributing
circumstances impacting the situation;
(iii) a detailed description of how the requested conduct
or assignment would have violated the nurse's duty to a patient or
any other provision of the NPA and Board Rules. If possible, reference
the specific standard (§217.11 of this title) or other section
of the NPA and/or Board rules the nurse believes would have been violated.
(iv) if applicable, the rationale for the nurse's not
engaging in the requested conduct or assignment awaiting the nursing
peer review committee's determination as to the nurse's duty. The
rationale should refer to one of the justifications described in subsection
(g)(2) of this section for not engaging in the conduct or assignment
awaiting a nursing peer review determination.
(v) any other copies of pertinent documentation available
at the time. Additional documents may be submitted to the committee
when available at a later time; and
(vi) the nurse's name, title, and relationship to the
supervisor making the assignment or request.
(B) The BON Comprehensive Written Request for Safe
Harbor Nursing Peer Review Form may be used when submitting the detailed
request for safe harbor, but use of the form is not required. The
request may be in any written format provided the information specified
in subparagraph (A) of this paragraph is included.
(5) The nurse invoking safe harbor is responsible for
keeping a copy of the request for safe harbor.
(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
Cont'd... |
