22 Tex. Admin. Code § 217.20 - Safe Harbor Nursing Peer Review and Whistleblower Protections
(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 Subchapter D, Chapter 161 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)
and this section; or
(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 this section must comply with subsection (g) of this section 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 (report of unsafe practices of non-nurse entities) and
§
217.19(j)(2) of
this title.
(b) Purpose. The purpose of this rule is to:
(1) define the process for invoking safe
harbor;
(2) define minimum due
process to which a nurse is entitled under safe harbor nursing peer
review;
(3) provide guidance to
facilities, agencies, employers of nurses, or anyone who utilizes the services
of nurses in the development and application of nursing peer review
plans;
(4) assure that nurses have
knowledge of the plan as well as their right to invoke safe harbor;
and
(5) provide guidance to the
nursing peer review committee in making its determination of the nurse's duty
to the patient.
(c)
Applicability of Safe Harbor Nursing Peer Review.
(1) 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 permit a nurse to request safe harbor nursing peer review when
the nurse is requested or assigned to engage in conduct that the nurse believes
is in violation of his/her duty to a patient.
(2) Any person or entity that conducts safe
harbor nursing peer review is required to comply with the requirements of this
rule.
(d) Invoking Safe
Harbor.
(1) Safe harbor must be invoked prior
to engaging in the conduct or assignment and at any of the following times:
(A) when the conduct is requested or
assignment made;
(B) 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
(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/hersignature;
(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
(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.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.