| (a) Definitions.
(1) Assignment--Designated responsibility for the provision
or supervision of nursing care for a defined period of time in a defined
work setting. This includes but is not limited to the specified functions,
duties, practitioner orders, supervisory directives, and amount of
work designated as the individual nurse's responsibility. Changes
in the nurse's assignment may occur at any time during the work period.
(2) Bad Faith--Knowingly or recklessly taking action
not supported by a reasonable factual or legal basis. The term includes
misrepresenting the facts surrounding the events under review, acting
out of malice or personal animosity towards the nurse, acting from
a conflict of interest, or knowingly or recklessly denying a nurse
due process.
(3) Chief Nursing Officer (CNO)--The registered nurse,
by any title, who is administratively responsible for the nursing
services at a facility, association, school, agency, or any other
setting that utilizes the services of nurses.
(4) Conduct Subject to Reporting defined by Texas Occupations
Code (TOC) §301.401 of the Nursing Practice Act as conduct by
a nurse that:
(A) violates the Nursing Practice Act (NPA) or a Board
rule and contributed to the death or serious injury of a patient;
(B) causes a person to suspect that the nurse's practice
is impaired by chemical dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud, or a violation
of professional boundaries; or
(D) 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.
(5) Duty to a patient--A nurse's duty is to always
advocate for patient safety, including any nursing action necessary
to comply with the standards of nursing practice (§217.11 of
this title) and to avoid engaging in unprofessional conduct (§217.12
of this title). This includes administrative decisions directly affecting
a nurse's ability to comply with that duty.
(6) Good Faith--Taking action supported by a reasonable
factual or legal basis. Good faith precludes misrepresenting the facts
surrounding the events under review, acting out of malice or personal
animosity, acting from a conflict of interest, or knowingly or recklessly
denying a nurse due process.
(7) Incident-Based Nursing Peer Review--Incident-based
nursing peer review focuses on determining if a nurse's actions, be
it a single event or multiple events (such as in reviewing up to five
(5) minor incidents by the same nurse within a year's period of time),
should be reported to the Board or if the nurse's conduct does not
require reporting because the conduct constitutes a minor incident
that can be remediated. The review includes whether external factors
beyond the nurse's control may have contributed to any deficiency
in care by the nurse and to report such findings to a patient safety
committee as applicable.
(8) Malice--Acting with a specific intent to do substantial
injury or harm to another.
(9) Minor incident--Conduct by a nurse that does not
indicate that the nurse's continued practice poses a risk of harm
to a patient or another person as described in §217.16 of this
title.
(10) Nurse Administrator--Chief Nursing Officer (CNO)
or the CNO's designee.
(11) Nursing Peer Review Law (NPR Law)--Chapter 303
of the TOC. Nurses involved in nursing peer review must comply with
the NPR Law.
(12) Nursing Practice Act (NPA)--Chapter 301 of the
TOC. Nurses must comply with the NPA.
(13) Patient Safety Committee--Any committee established
by an association, school, agency, health care facility, or other
organization to address issues relating to patient safety including:
(A) the entity's medical staff composed of individuals
licensed under Subtitle B (Medical Practice Act, TOC §§151.001,
et seq.);
(B) a medical committee under Chapter 161, Subchapter
D of the Health and Safety Code (§§161.031 - 161.033); or
(C) a multi-disciplinary committee, including nursing
representation, or any committee established by the same entity to
promote best practices and patient safety.
(14) Peer Review--Defined by TOC §303.001(5) (NPR
Law) as the evaluation of nursing services, the qualifications of
a nurse, the quality of patient care rendered by a nurse, the merits
of a complaint concerning a nurse or nursing care, and a determination
or recommendation regarding a complaint. The term also includes the
provision of information, advice, and assistance to nurses and other
persons relating to the rights and obligations of and protections
for nurses who raise care concerns, report under Chapter 301, request
nursing peer review, and the resolution of workplace and practice
questions relating to nursing and patient care. The nursing peer review
process is one of fact finding, analysis and study of events by nurses
in a climate of collegial problem solving focused on obtaining all
relevant information about an event. Nursing peer review conducted
by any entity must comply with NPR Law and with applicable Board rules
related to incident-based or safe harbor nursing peer review.
(15) Safe Harbor--A process that protects a nurse from
employer retaliation, suspension, termination, discipline, discrimination,
and licensure sanction when a nurse makes a good faith request for
nursing peer review of an assignment or conduct the nurse is requested
to perform and that the nurse believes could result in a violation
of the NPA or Board rules. Safe Harbor must be invoked prior to engaging
in the conduct or assignment for which nursing peer review is requested,
and may be invoked at anytime during the work period when the initial
assignment changes.
(16) Texas Occupations Code (TOC)--One of the topical
subdivisions or "codes" into which the Texas Statutes or laws are
organized. The TOC contains the statutes governing occupations and
professions including the health professions. Both the NPA and NPR
Law are located within these statutes. The TOC can be changed only
by the Texas Legislature.
(17) Whistleblower Protections--Protections available
to a nurse that prohibit retaliatory action by an employer or other
entity because the nurse:
(A) made a good faith request for Safe Harbor Nursing
Peer Review under TOC §303.005(c) (NPR Law) and §217.20
of this title;
(B) refused to engage in an act or omission relating
to patient care that would constitute a violation of the NPA or Board
rules as permitted by TOC §301.352 (NPA) (Protection for Refusal
to Engage in Certain Conduct). A nurse invoking Safe Harbor under §217.20
of this title must comply with §217.20(g) of this title if the
nurse refuses to engage in the conduct or assignment; or
(C) made a lawful report of unsafe practitioners, or
unsafe patient care practices or conditions, in accordance with TOC §301.4025
(NPA) (report of unsafe practices of non-nurse entities) and subsection
(j)(2) of this section.
(b) Purpose. The purpose of this rule is to:
(1) define minimum due process to which a nurse is
entitled under incident-based nursing peer review;
(2) provide guidance to facilities, agencies, schools,
or anyone who utilizes the services of nurses in the development and
application of incident-based nursing peer review plans;
(3) assure that nurses have knowledge of the plan;
and
(4) provide guidance to the incident-based nursing
peer review committee in its fact finding process.
(c) Applicability of Incident-Based Nursing Peer Review.
TOC §303.0015 (NPR Law) requires a person who regularly employs,
hires or contracts for the services of eight (8) or more nurses (for
nursing peer review of an RN, at least four (4) of the 8 must be RNs)
to conduct nursing peer review for purposes of TOC §301.401(1)
and §301.402(e) (NPA) (relating to alternate reporting by nurses
to nursing peer review when a nurse engages in conduct subject to
reporting), §301.403 (relating to nursing peer review committee
reporting), §301.405(c) (relating to nursing peer review of external
factors as part of employer reporting), and §301.407(b) (relating
to alternate reporting by state agencies to nursing peer review).
(d) Minimum Due Process.
(1) A licensed nurse subject to incident-based nursing
peer review is entitled to minimum due process under TOC §303.002(e)
(NPR Law). Any person or entity that conducts incident-based nursing
peer review must comply with the due process requirements of this
section even if the person or entity does not utilize the number of
nurses described by subsection (c) of this section.
(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
Cont'd... |
