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Agenda Item: 6.8Prepared by: C. Marshall & J. Sparks

January 2008

REPLACEMENT REPORTProposed Revisions to Peer Review Rules 217.19 & 217.20

Summary of Request:

In response to SB 993 and HB 2426 passed during the 80th Legislative Session, the Board chargedthe Nursing Practice Advisory Committee(NPAC) with the task of revising the nursing peer reviewrules at the July 2007 board meeting. The proposed new rules along with repeal of the currentRules 217.19 and 217.20 were published in the November 2, 2007 issue (Vol. 32, #44) of the TexasRegister for a 30-day comment period. No comments were received regarding the repeal of currentpeer review rules 217.19 and 217.20.

The comments received on the initially proposed new peer review rules were extensive. Staff haveadopted many of the these changes and made additional adjustments based on feedback such thatstaff propose to withdraw the initially proposed rules, and re-propose the new rules attached to thisreport. The repeal of the current rules 217.19 and 217.20 remains in effect in conjunction with thisrequest. The new proposed rule language is reflected in Attachment A {rule 217.19} andAttachment B {rule 217.20}.

This report contains the comments received (Attachments C-1 and C-2), board staff responses tocomments, and proposed new rule language for §217.19 and 217.20. Responses to comments onthe initially proposed new rules (Tex. Reg. 11/2/07) are broken down by comments/responses notimpacting rule language (Attachment D) and comparison tables (Attachments E and F) that doreflect rule language changes. This agenda item is for review, discussion, and action by the board.

Historical Perspective:

Though most of this information was included in the previous board report in October 2007, it isrepeated here for the benefit of anyone seeing this as the first report on the subject of the re-proposed peer review rules. Some additional clarifying information has been added based onquestions received.

The basic rules and concepts of nursing peer review have been in existence since 1987, with “parityof counsel” added in 1995, and safe harbor peer review in 1997. It was not until the Board ofNursing and the Board of Vocational Nurse Examiners combined in February 2004 that safe harborpeer review became applicable and accessible to LVNs. The peer review process is outlined inTexas Occupations Code, chapter 303, Nursing Peer Review. Reporting requirements are foundin Tex. Occ. Code, chapter 301.

In 2001, after a year of deliberations on revisions by NPAC, as well as response to publiccomments, the board repealed rule 217.17 Minimal Procedural Standards During Peer Review, andadopted two new rules that separated incident-based peer review [rule 217.19] and safe harborpeer review [217.20].

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In response to the first Institute of Medicine (IOM) report “To Err is Human,” the concept of havinga peer review committee examine external factors contributing to a nursing error was incorporatedinto rule 217.19(a)(7) in 2001. As national patient safety efforts continue to focus on externalsystem factors, SB 993 amended §301.305(c) to require that a peer review committee examine anyrequired report of a nurse to the board by a nurse’s employer or practice setting when a nurse isterminated, suspended for 7 or more days, or other substantive disciplinary action ensues relatedto one or more practice errors committed by the nurse.

The intent is to prevent external factors that negatively impact patient safety from going uncheckedand unchanged —the issues and surrounding circumstances do not go away because the nursewas terminated, suspended, made a “do not return”, etc. New language in §301.305(c) furthermandates that the peer review committee report to a facility’s patient safety committee if it isdetermined that external factors did impact or contribute to the nurse’s error.

Revisions to rule 217.16 Minor Incidents went into effect 5/17/06. This rule is should be utilized byboth nursing managers and incident-based peer review committees in determining whether or nota nurse’s behavior is board reportable. The Minor Incident rule defines exclusions (acts that cannotbe considered minor under any circumstances) and establishes criteria for determining if one ormore minor incidents should be reported to the board.

This newest §217.16 incorporated a new concept of permitting a peer review committee to utilizea smaller workgroup of the committee to engage in fact-finding, analysis, and dialogue with thenurse [217.16(g)(2)]. The workgroup is permitted to use informal processes, and the nurse’s rightsare protected through review by the full committee prior to any report to the board. This concept,along with more detailed guidance, has been added to the proposed new §§217.19 and 217.20,with the nurse involved having the right to accept or reject the use of a smaller workgroup.

The reasons for adding the ability to utilize a smaller work group of the peer review committeeprimarily related to incident-based peer review, however the process can be used in safe harboras well. Incident-based peer review is often seen as an intimidating process where the nurse isbeing questioned and judged by a panel, instead of the original intent of peer review–to be acollegial review of a nurse’s practice, looking at both individual and system-related factors thatcontributed to nursing error. With Safe Harbor, contributing factors may involve multipledepartments within a practice setting. Exploration into these systems factors may be just aseffectively accomplished by having fewer nurses (the smaller work group) from the peer reviewcommittee gathering the background information and discussing the specific issues with the nurse;however, the nurse retains the right to have the entire peer review committee convene and makea determination.

The Board is also aware that holding a peer review is a time-consuming process and may be ahardship on a facility or agency trying to staff direct patient care needs at the same time pullingnurses off to participate in peer review. It is hoped that by permitting the use of a smallerworkgroup of the peer review committee, the peer review process can be effective, easier than inthe past, less intimidating, less time-consuming, and can promote safer patient care.`

SB993 added protections for a nurse who reports a nurse, refuses to engage in conduct, or assistsa nurse with filing safe harbor because of unsafe conditions for patients. This includes not onlyprotections for the nurse claiming safe harbor or reporting another nurse, but also for the nursereporting a facility or non-nurse health care provider who the nurse believes in good faith isendangering patient safety. These “whistle blower” protections have been added at the end of eachrule, as well as included in the titles for each rule, to assure that nurses are able to easily find andbe aware that they do have these protections when upholding their duty to always advocate forpatient safety [rule 217.11(1)(B)].

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With regard to Safe Harbor Peer Review (rule 217.20), besides arranging the rule for better flowand understanding, additions include addressing the nurse’s due process rights, and providing fora nurse to do a “quick” request for safe harbor at the time asked to engage in the conduct, withprovision to complete the “comprehensive” request later in the same work period but prior to leavingthe work area.

NPAC members also decided to be redundant on the most important step with safe harbor: invokingit at the time the nurse is asked to engage in the conduct or accept the assignment. The committeeagreed that a nurse may be handicapped by the stress of the situation that is creating the dangerto patients, while at the same time trying to recall what steps to take to invoke safe harbor.Repeating this vital step in more than one place in the rule is intended to help the nurse find andcarry out this step that protects the nurse’s license while enabling the nurse to protect and care forpatients.

Repetition and redundancy in certain other elements of both rules was intentional on the part ofNPAC to emphasize and assure nurses and those who utilize nursing services are aware of keyprovisions of each rule.

A brief summary of the key changes brought about by SB 993, and now incorporated into theproposed and re-proposed new peer review rules, is accessible at the following link (page 14,October 2007 BON Bulletin) ftp://www.bon.state.tx.us/oct07.pdf.

Pros & Cons:Pros: The peer review process has always been one of the more complex sections of

nursing law. The proposed rule revisions to peer review rules 217.19 and 217.20are congruent with the newest changes in NPA Ch. 301 and Peer Review Ch. 303.The proposed rules have also been re-ordered by the committee to be morereadable and understandable for nurses and anyone trying to implement peerreview in the spirit that was legislatively intended. Further clarity has been achievedfollowing additional language changes implemented after responding to commentsreceived from the first proposed rules published 11/02/07, as well as additionalcomments from TNA to the re-drafted language for rule 217.20 (see replacementagenda item for Attachment B and additional TNA comments in supplement toAttachment C-2).

Cons: Since provisions of SB993 became effective 9/1/07, failure to publish and adopt newpeer review rules may result in confusion, and possible lack of compliance with thenew statutes due to a disconnect between the current peer review rules and the newstatutes.

Staff Recommendations:Move to withdraw proposed peer review rules 217.19 and 217.20, and to re-propose adoption ofnew rules by the same titles:

217.19 Incident-Based Nursing Peer Review and Whistleblower Protections; and 217.20 Safe Harbor Peer Review for Nurses and Whistleblower Protections.

in the Texas Register for a 30-day comment period.

The board authorizes staff legal counsel to make non-substantive language changes in theproposed new rules for clarification purposes. Such non-substantive editorial changes may occurprior to publication in the Texas Register. If negative comments are not received, move to adoptnew rules 217.19 and 217.20 as re-proposed.

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Agenda Item 6.8 Attachments

A: Re-Proposed Rule 217.19 Incident-Based Nursing Peer Review and WhistleblowerProtections

B: Re-Proposed Rule 217.20 Safe Harbor Peer Review for Nurses and WhistleblowerProtections (Please Reference Replacement Attachment B)

C-1: Comments Received on Proposed Peer Review Rules Published in TexasRegister November 2, 2007 [except TNA Comments]

C-2: Comments Received from Texas Nurses Association (TNA) on Proposed PeerReview Rules Published in Texas Register November 2, 2007

D: BON Responses to Comments Not Involving Language Changes to Rules

E: Table: BON Responses to Comments on Rule 217.19 Incident-Based PeerReview and Whistleblower Protections [language changes]

F: Table: BON Responses to Comments on Rule 217.20 Safe Harbor PeerReview and Whistleblower Protections [language changes]

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Agenda Idem 6.81January 20082

Prepared by C. Marshall & J. Sparks34

ATTACHMENT A5Re-Proposed Rule 217.196

Incident-Based Peer Review789

1011121314151617

217.19. Incident-Based Nursing Peer Review and Whistleblower Protections.1819

(a) Definitions2021

(1) Assignment: Designated responsibility for the provision or supervision of nursing22care for a defined period of time in a defined work setting. This includes but is not23limited to the specified functions, duties, practitioner orders, supervisory24directives, and amount of work designated as the individual nurse's responsibility.25Changes in the nurse’s licensure responsibilities may occur at any time during26the work period .27

28(2) Bad Faith: Knowingly or recklessly taking action not supported by a reasonable29

factual or legal basis. The term includes misrepresenting the facts surrounding the30events under review, acting out of malice or personal animosity towards the nurse,31acting from a conflict of interest, or knowingly or recklessly denying a nurse due32process.33

34(3) Chief Nursing Officer (CNO): The registered nurse, by any title, who is35

administratively responsible for the nursing services at a facility, association, school,36agency, or any other setting that utilizes the services of nurses.37

38(4) Conduct Subject to Reporting defined by §301.401 of the Nursing Practice Act as39

conduct by a nurse that:4041

(A) violates the Nursing Practice Act (NPA) or a board rule and contributed to42the death or serious injury of a patient;43

44(B) causes a person to suspect that the nurse's practice is impaired by chemical45

dependency or drug or alcohol abuse;4647

(C) constitutes abuse, exploitation, fraud, or a violation of professional48boundaries; or49

50(D) indicates that the nurse lacks knowledge, skill, judgment, or51

conscientiousness to such an extent that the nurse's continued practice of52nursing could reasonably be expected to pose a risk of harm to a patient or53

Legend Suggested Language from Comments: Blue BON Recommended Language: Green Language Changes Underlined (strike-outs deleted)

See Attachment E (table) for details Section Headings in bold for ease in navigating rule

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another person, regardless of whether the conduct consists of a single1incident or a pattern of behavior.2

3(5) Duty to a patient: A nurse’s duty is to always advocate for patient safety,4

including any nursing action necessary to comply with the standards of nursing5practice (§ 217.11) and to avoid engaging in unprofessional conduct (§ 217.12).6This includes administrative decisions directly affecting a nurse’s ability to comply7with that duty.8

(6) Good Faith: Taking action supported by a reasonable factual or legal basis. Good9faith precludes misrepresenting the facts surrounding the events under review,10acting out of malice or personal animosity, acting from a conflict of interest, or11knowingly or recklessly denying a nurse due process. 12

13(7) Incident-Based Peer Review: Incident-based peer review focuses on determining14

if a nurse’s actions, be it a single event or multiple events (such as in reviewing up15to 5 minor incidents by the same nurse within a year’s period of time) should be16reported to the board, or if the nurse’s conduct does not require reporting because17the conduct constitutes a minor incident that can be remediated. The review18includes whether external factors beyond the nurse’s control may have contributed19to any deficiency in care by the nurse, and to report such findings to a patient safety20committee as applicable. 21

22(8) Malice: Acting with a specific intent to do substantial injury or harm to another.23

24(9) Minor incident: Conduct by a nurse that does not indicate that the nurse's continued25

practice poses a risk of harm to a patient or another person as described in rule26217.16.27

28(10) Nurse Administrator: Chief Nursing Officer (CNO) or the CNO’s designee.29

30(11) Nursing Peer Review Law (NPR law): Chapter 303 of the Texas Occupations Code31

(TOC). Nurses involved in nursing peer review must comply with the NPR Law.3233

(12) Nursing Practice Act (NPA): Chapter 301 of the Texas Occupations Code (TOC).34Nurses must comply with the NPA.35

36(13) Patient Safety Committee: Any committee established by an association, school,37

agency, health care facility, or other organization to address issues relating to38patient safety including:39

40(A) the entity’s medical staff composed of individuals licensed under Subtitle B41

(Medical Practice Act, Occupations Code §151.001 et seq.) ;4243

(B) a medical committee under Subchapter D, Chapter 161 of the Health and44Safety Code (§§161.031-.033); or 45

46(C) a multi-disciplinary committee, including nursing representation, or any47

committee established by the same entity to promote best practices and48patient safety.49

50(14) Peer Review: Defined by §303.001(5) of NPR Law (TOC ch. 303) as the evaluation51

of nursing services, the qualifications of a nurse, the quality of patient care rendered52by a nurse, the merits of a complaint concerning a nurse or recommendation53

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regarding a complaint. The peer review process is one of fact finding, analysis and1study of events by nurses in a climate of collegial problem solving focused on2obtaining all relevant information about an event. Peer review conducted by any3entity must comply with NPR Law and with applicable Board rules related to4incident-based or safe harbor peer review. 5

6(15) Safe Harbor: A process that protects a nurse from employer retaliation and7

licensure sanction when a nurse makes a good faith request for peer review of8an assignment or conduct the nurse is requested to perform and that the nurse9believes could result in a violation of the NPA (TOC) or board rules. Safe10Harbor must be invoked prior to engaging in the conduct or assignment for which11peer review is requested, and may be invoked at anytime during the work12period when the initial assignment changes. 13

14(16) Texas Occupations Code (TOC): One of the topical subdivisions or “codes” into15

which the Texas Statutes or laws are organized. The Occupation Code contains the16statutes governing occupations and professions including the health professions.17Both the NPA and NPR Law are located within these statutes. The Occupations18Code can be changed only by the Texas Legislature. 19

20(17) Whistleblower Protections: protections available to a nurse that prohibit retaliatory21

action by an employer or other entity because the nurse:2223

(A) made a good faith request for Safe Harbor Nursing Peer Review under24§303.005(c) of NPR Law (TOC ch. 303) and rule 217.20, or25

26(B) refused to engage in an act or omission relating to patient care that would27

constitute a violation of the NPA or board rules as permitted by §301.35228of the NPA (TOC ch. 301) (Protection for Refusal to Engage in Certain29Conduct); A nurse invoking Safe Harbor under 217.20 must comply30with 217.20(g) if the nurse refuses to engage in the conduct or31assignment; or32

33(C) made a lawful report of unsafe practitioners, or unsafe patient care practices34

or conditions, in accordance with NPA (TOC) §301.4025 (report of unsafe35practices of non-nurse entities) and (j)(2) of this section.36

37(b) Purpose38

39The purpose of this rule is to:40

41(1) define minimum due process to which a nurse is entitled under incident-based peer42

review, 4344

(2) provide guidance to facilities, agencies, schools, or anyone who utilizes the services45of nurses in the development and application of incident-based peer review plans,46

47(3) assure that nurses have knowledge of the plan, and 48

49(4) provide guidance to the incident-based peer review committee in its fact finding50

process.5152

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(c) Applicability of Incident-Based Peer Review12

Section 303.0015 of the NPR Law (TOC ch. 303) requires a person who regularly employs,3hires or contracts for the services of ten (10) or more nurses (for peer review of a RN, at4least 5 of the 10 must be RNs) to conduct nursing peer review for purposes of NPA5§§301.402(e) (relating to alternate reporting by nurses to peer review), 301.403 (relating to6peer review committee reporting), 301.405(c) (relating to peer review of external factors as7part of employer reporting), and 301.407(b) (relating to alternate reporting by state agencies8to peer review).9

10(d) Minimum Due Process11

12(1) A licensed nurse subject to incident-based peer review is entitled to minimum due13

process under Nursing Peer Review (TOC) §303.002(e). Any person or entity that14conducts incident-based peer review must comply with the due process requirements15of this section even if the person or entity does not utilize the number of nurses16described by Subsection (c).17

18(2) A facility conducting incident-based peer review shall have written policies and19

procedures that, at a minimum, address:2021

(A) the level of participation of nurse or nurse’s representative at an incident-22based peer review hearing beyond that required by Subsection (d)(3)(F) of23this rule;24

25(B) confidentiality and safeguards to prevent impermissible disclosures including26

written agreement by all parties to abide by Nursing Peer Review Law (TOC)27§§303.006 and 303.007, 303.0075 and Subsection (h);28

29(C) handling of cases involving nurses who are impaired or suspected of being30

impaired by chemical dependency, drug or alcohol abuse, substance31abuse/misuse, “intemperate use,” mental illness, or diminished mental32capacity in accordance with the NPA (TOC) §301.410, and Subsection (g);33

34(D) reporting of nurses to the board by incident-based peer review committee in35

accordance with the NPA (TOC) §301.403, and subsection (i); and3637

(E) effective date of changes to the policies which in no event shall apply to38incident-based peer review proceedings initiated before the change was39adopted unless agreed to in writing by the nurse being reviewed.40

41(3) In order to meet the minimum due process required by Nursing Peer Review Law42

(TOC) chapter 303, the nursing peer review committee must:4344

(A) comply with the membership and voting requirements as set forth in Nursing45Peer Review (TOC) §303.003;46

47(B) exclude from the committee, including attendance at the peer review hearing,48

any person or persons with administrative authority for personnel decisions49directly relating to the nurse. This requirement does not exclude a person50who is administratively responsible over the nurse being reviewed from51appearing before the committee to speak as a fact witness;52

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(C) provide written notice to the nurse in person or by certified mail at the last1known address the nurse has on file with the facility that:2

3(i) the nurse’s practice is being evaluated;4(ii) the incident-based peer review committee will meet on a specified5

date not sooner than 21 calendar days and not more than 45 calendar6days from date of notice, unless:7

8(l) the incident-based peer review committee determines an9

extended time period (extending the 45 days by no more than10an additional 45 days) is necessary in order to consult with a11patient safety committee, or is12

13(Il) otherwise agreed upon by the nurse and incident-based peer14

review committee. 1516

(iii) includes the information required by Paragraph (D).1718

(D) Include in the notice required by Paragraph (C):1920

(i) a description of the event(s) to be evaluated in sufficient detail to21inform the nurse of the incident, circumstances and conduct (error or22omission), including date(s), time(s), location(s), and individual(s)23involved. The patient/client shall be identified by initials or number to24the extent possible to protect confidentiality but the nurse shall be25provided the name of the patient/client;26

27(ii) the name, address, telephone number of contact person to receive28

the nurse’s response; and2930

(iii) a copy of this rule (§217.19 of this title) and a copy of the facility’s31incident-based peer review plan, policies and procedures.32

(E) provide the nurse the opportunity to review, in person or by attorney, the33documents concerning the event under review, at least 15 calendar days prior34to appearing before the committee;35

36(F) provide the nurse the opportunity to:37

38(i) submit a written statement regarding the event under review;39

40(ii) call witnesses, question witnesses, and be present when testimony41

or evidence is being presented;4243

(iii) be provided copies of the witness list and written testimony or44evidence at least 48 hours in advance of proceeding;45

46(iv) make an opening statement to the committee;47

48(v) ask questions of the committee and respond to questions of the49

committee; and5051

(vi) make a closing statement to the committee after all evidence is52presented;53

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(G) complete its review no more than fourteen (14) calendar days after the1incident-based peer review hearing, or in compliance with subsection2(d)(3)(C)(ii) of this rule relating to consultation with a patient safety committee;3

4(H) provide written notice to the nurse in person or by certified mail at the last5

known address the nurse has on file with the facility of the findings of the6committee within ten (10) calendar days of when the committee’s review has7been completed; and8

9 (I) permit the nurse to file a written rebuttal statement within ten (10) calendar10

days of the notice of the committee’s findings and make the statement a11permanent part of the incident-based peer review record to be included12whenever the committee’s findings are disclosed;13

14(4) An incident-based peer review committee’s determination to report a nurse to the15

board cannot be overruled, changed, or dismissed. 1617

(5) Nurse’s Right To Representation1819

(A) A nurse shall have a right of representation as set out in this Subdivision (5).20These rights are minimum requirements and a facility may allow the nurse21more representation. The incident-based peer review process is not a legal22proceeding; therefore, rules governing legal proceedings and admissibility of23evidence do not apply and the presence of attorneys is not required. 24

25(B) The nurse has the right to be accompanied to the hearing by a nurse peer or26

an attorney. Representatives attending the incident-based peer review27hearing must comply with the facility’s incident-based peer review policies28and procedures regarding participation beyond conferring with the nurse. 29

30(C) If either the facility or nurse will have an attorney or representative present at31

the incident-based peer review hearing in any capacity, the facility or nurse32must notify the other at least seven (7) calendar days before the hearing that33they will have an attorney or representative attending the hearing and in what34capacity. 35

36(D) Notwithstanding any other provisions of these rules, if an attorney37

representing the facility or incident-based peer review committee is present38at the incident-based peer review hearing in any capacity, including serving39as a member of the incident-based peer review committee, the nurse is40entitled to “parity of participation of counsel.” “Parity of participation of41counsel” means that the nurse’s attorney is able to participate to the same42extent and level as the facility’s attorney; e.g., if the facility’s attorney can43question witnesses, the nurse’s attorney must have the same right.44

45(6) A nurse whose practice is being evaluated may properly choose not to participate in46

the proceeding after the nurse has been notified under subsection (d)(3)(C) of this47section. If a nurse elects not to participate in incident-based peer review, the nurse48waives any right to procedural due process under TOC §303.002 and Subsection (d).49

50(e) Use of Informal Work Group In Incident Based Peer Review51

52A facility may choose to initiate an informal review process utilizing a workgroup of the53nursing incident-based peer review committee provided there are written policies for the54

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informal workgroup that require:12

(A) the nurse to be informed of how the informal work group will function, and to consent,3in writing, to the use of an informal work group. A nurse does not waive any right to4incident-based peer review by accepting or rejecting the use of an informal work5group;6

7(B) if the informal work group suspects that the nurse’s practice is impaired by chemical8

dependency or diminished mental capacity, the chair person must be notified to9determine if peer review should be terminated and the nurse reported to the board10or to a board-approved peer assistance program as required by Subsection (g);11

12(C) the informal work group to comply with the membership and voting requirements of13

Subsection (d)(3)(A) and (B);1415

(D) the nurse be provided the opportunity to meet with the informal work group;1617

(E) the nurse to have the right to reject any decision of the informal work group and to18then have his/her conduct reviewed by the peer review committee, in which event19members of the informal work group shall not participate in that determination; and20

21(F) ratification by the committee chair person of any decision made by the informal work22

group. If the chair person disagrees with a determination of the informal work group23to remediate a nurse for one or more minor incidents, the chair person shall convene24the full peer review committee to make a determination regarding the conduct in25question. 26

27(G) the chair person must communicate any decision of the informal work group to the28

CNO. 2930

(f) Exclusions to Minimum Due Process Requirements3132

The minimum due process requirements set out in Subsection (d) do not apply to:3334

(1) peer review conducted solely in compliance with NPA (TOC) §301.405(c) relating35to review of external factors, after a report of a nurse to the board has already36occurred under NPA (TOC) §301.405(b) (relating to mandatory report by37employer, facility or agency); or 38

3940

(2) reviews governed by Subsection (g) involving nurses whose practice is suspected41of being impaired due to chemical dependency, drug or alcohol abuse, substance42abuse/misuse, “intemperate use,” mental illness, or diminished mental capacity;43

44(3) when a person required to report a nurse believes that a nurse’s practice is45

impaired or suspected of being impaired and has also resulted in a violation under46NPA (TOC) §301.410(b), that requires a direct report to the board.47

48(g) Incident-Based Peer Review of a Nurse’s Impaired Practice/Lack of Fitness49

50(1) When a nurse’s practice is impaired or suspected of being impaired due to51

chemical dependency, drug or alcohol abuse, substance abuse/misuse,52“intemperate use,” mental illness, or diminished mental capacity, peer review of the53nurse shall be suspended. The nurse shall be reported to the board or to a board-54

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approved peer assistance program in accordance with NPA (TOC) §301.4101(related to reporting of impairment):2

3(A) if there is no reasonable factual basis for determining that a practice4

violation is involved, the nurse shall be reported to:56

(i) the board; or7(ii) a board-approved peer assistance program, that shall handle8

reporting the nurse in accordance with Rule 217.13, or910

(B) if there is a reasonable factual basis for a determination that a practice11violation is involved, the nurse shall be reported to the board.12

13(2) Following suspension of peer review of the nurse, the committee shall proceed to14

evaluate external factors to determine if:1516

(i) any factors beyond the nurse’s control contributed to a practice17violation, and18

19(ii) any deficiency in external factors enabled the nurse to engage in20

unprofessional or illegal conduct.2122

(3) If the committee determines under Subdivision (2) that external factors do exist for23either (i) or (ii) of this Subparagraph, the committee shall report its findings to a24patient safety committee or to the CNO if there is no patient safety committee.25

26(4) A facility, organization, contractor, or other entity does not violate a nurse’s right to27

due process under Subsection (d) by suspending the committee’s review of the28nurse and reporting the nurse to the Board in accordance with this Subdivision (2).29

30(5) Subdivision (1) does not preclude a nurse from self-reporting to a peer assistance31

program or appropriate treatment facility.3233

(h) Confidentiality of Proceedings3435

(1) Confidentiality of information presented to and/or considered by the incident-based36peer review committee shall be maintained and the information not disclosed37except as provided by Nursing Peer Review Law (TOC) §§303.006, 303.007, and38303.0075. Disclosure/discussion by a nurse with the nurse’s attorney is proper39because the attorney is bound to the same confidentiality requirements as the40nurse.41

42(2) In accordance with Nursing Peer Review Law (TOC) §303.0075, a nursing incident-43

based peer review committee, including an entity contracted to conduct peer44review under §303.0015(b), and any patient safety committee established by the45same entity, may share information. 46

47(A) A record or determination of a patient safety committee, or a communication48

made to a patient safety committee, is not subject to subpoena or discovery49and is not admissible in any civil or administrative proceeding, regardless50of whether the information has been provided to a nursing peer review51committee. 52

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(B) The privileges under this subsection may be waived only through a written1waiver signed by the chair, vice chair, or secretary of the patient safety2committee. 3

4(C) This section does not affect the application of Nursing Peer Review Law5

(TOC) §303.007 (relating to disclosures by peer review committee) to a6nursing peer review committee.7

8(D) A committee that receives information from another committee shall forward9

any request to disclose the information to the committee that provided the10information.11

12(3) A CNO shall assure that policies are in place relating to sharing of information and13

documents between an Incident-Based Nursing Peer Review committee and a14patient safety committee(s) that at a minimum, address:15

16(A) separation of confidential Incident-Based Nursing Peer Review information17

from the nurse’s human resource file;1819

(B) methods in which shared communications and documents are labeled and20maintained as to which committee originated the documents or21communications;22

23(C) the confidential and separate nature of incident-based peer review and24

patient safety committee proceedings including shared information and25documents; and 26

27(D) the treatment of nurses who violate the policies including when a violation28

may result in a nurse being reported to the board or a nursing peer review29committee.30

3132

(i) Committee Responsibility to Evaluate and Report 3334

(1) In evaluating a nurse’s conduct, the incident-based peer review committee shall35review the evidence to determine the extent to which any deficiency in care by the36nurse was the result of deficiencies in the nurse’s judgment, knowledge, training,37or skill rather than other factors beyond the nurse’s control. A determination that a38deficiency in care is attributable to a nurse must be based on the extent to which39the nurse’s conduct was the result of a deficiency in the nurse’s judgment,40knowledge, training, or skill.41

42(2) An incident-based peer review committee shall consider whether a nurse’s conduct43

constitutes one or more minor incidents under rule 217.16, Minor Incidents. In44accordance with that rule, the committee may determine that the nurse:45

46(A) can be remediated to correct the deficiencies identified in the nurse’s47

judgment, knowledge, training, or skill, or 4849

(B) should be reported to the board for either a pattern of practice that fails to50meet minimum standards, or for one or more events that the incident-based51peer review committee determines cannot be categorized as a minor52incident(s). 53

54

10

(3) An incident-based nursing peer review committee is not required to submit a report1to the board if:2

3(A) the committee determines that the reported conduct was a minor incident4

that is not required to be reported in accordance with provisions of rule5§217.16 Minor Incidents; or6

7(B) the nurse has already been reported to the board under NPA (TOC)8

§301.405(b) (employer reporting requirements).910

(4) If the committee determines it is required to report a nurse to the board, the11committee shall submit to the board a written, signed report that includes:12

13(A) the identity of the nurse;14

15(B) a description of the conduct subject to reporting;16

17(C) a description of any corrective action taken against the nurse;18

19(D) a recommendation as to whether the board should take formal disciplinary20

action against the nurse, and the basis for the recommendation;2122

(E) the extent to which any deficiency in care provided by the reported nurse23was the result of a factor beyond the nurse’s control and24

25(F) any additional information the board requires.26

2728

(5) If an incident-based peer review committee determines that a deficiency in care by29the nurse was the result of a factor(s) beyond the nurse’s control, in compliance30with TOC §303.011(b) (related to required peer review committee report when31external factors contributed to a nurse’s deficiency in care), the committee must32submit a report to the applicable patient safety committee, or to the CNO if there is33no patient safety committee. A patient safety committee must report its findings34back to the incident-based peer review committee.35

(6) An incident-based peer review committee is not required to withhold its36determination of the nurse being incident-based peer reviewed, pending feedback37from a patient safety committee, unless the committee believes that a determination38from a patient safety committee is necessary in order for the incident-based peer39review committee to determine if the nurse’s conduct is reportable. 40

41(A) If an incident-based peer review committee finds that factors outside the42

nurse’s control contributed to a deficiency in care, in addition to reporting43to a patient safety committee, the incident-based peer review committee44may also make recommendations for the nurse, up to and including45reporting to the board. 46

47(B) An incident-based peer review committee may extend the time line for48

completing the incident-based peer review process (extending the 45 days49by no more than an additional 45 days) if the committee members believe50they need input from a patient safety committee. The incident-based peer51review committee must complete its review of the nurse within this 90-day52time frame.53

54

11

(7) An incident-based peer review committee’s determination to report a nurse to the1board cannot be overruled, changed, or dismissed. 2

3(j) Nurse’s Duty to Report4

5(1) A report made by a nurse to a nursing incident-based peer review committee will6

satisfy the nurse’s duty to report to the board under NPA (TOC) §301.4027(mandatory report by a nurse) provided that the following conditions are met:8

9(A) The reporting nurse shall be notified of the incident-based peer review10

committee’s actions or findings and shall be subject to Nursing Peer Review11(TOC) §303.006 (confidentiality of peer review proceedings); and12

13(B) The nurse has no reason to believe the incident-based peer review14

committee made its determination in bad faith.1516

(2) A nurse may not be suspended, terminated, or otherwise disciplined or17discriminated against for filing a report made without malice under this rule and18NPA (TOC) §301.402(f) (retaliation for a report made without malice prohibited). A19violation of this subsection or NPA (TOC) §301.402(f) is subject to NPA (TOC)20§301.413 that provides a nurse the right to file civil suit to recover damages. The21nurse may also file a complaint with the regulatory agency that licenses or22regulates the nurse’s practice setting. The BON does not have regulatory23authority over practice settings or civil liability.24

25(k) State Agency Duty to Report26

27A state agency that has reason to believe that a nurse has engaged in conduct subject to28reporting shall report the nurse in writing to:29

30(A) the board or31

32(B) the applicable nursing peer review committee in lieu of reporting to board.33

34(l) Integrity of Incident-Based Peer Review Process35

36(1) Incident-Based Peer Review must be conducted in good faith. A nurse who knowingly37

participates in incident-based peer review in bad faith is subject to disciplinary action38by the board.39

40(2) The CNO of a facility, association, school, agency, or of any other setting that utilizes41

the services of nurses is responsible for knowing the requirements of this rule and for42taking reasonable steps to assure that incident-based peer review is implemented43and conducted in compliance with the NPA, Nursing Peer Review, and this rule.44

45(3) A determination by an incident-based peer review committee, a CNO, or an individual46

nurse to report a nurse to the board cannot be overruled, dismissed changed, or47reversed. An incident-based peer review committee, CNO, and individual nurse each48have a separate responsibility to protect the public by reporting a nurse to the board49as set forth in NPA (TOC) §301.402, §301.405, rule 217.11(1)(K), and this rule. 50

51(m) Reporting Conduct of other Practitioners or Entities: Whistleblower Protections52

53(1)This section does not expand the authority of any incident-based peer review committee or54

the board to make determinations outside the practice of nursing.55

12

(2)In a written, signed report to the appropriate licensing board or accrediting body, and in1accordance with §301.4025 (report of unsafe practices of non-nurse entities), a nurse may2report a licensed health care practitioner, agency, or facility that the nurse has reasonable3cause to believe has exposed a patient to substantial risk of harm as a result of failing to4provide patient care that conforms to:5

6(A) minimum standards of acceptable and prevailing professional practice, for a7

report made regarding a practitioner; or89

(B) statutory, regulatory, or accreditation standards, for a report made regarding10an agency or facility.11

12(i) A nurse may report to the nurse's employer or another entity at which13

the nurse is authorized to practice any situation that the nurse has14reasonable cause to believe exposes a patient to substantial risk of15harm as a result of a failure to provide patient care that conforms to16minimum standards of acceptable and prevailing professional practice17or to statutory, regulatory, or accreditation standards. For purposes18of this subsection, an employer or entity includes an employee or19agent of the employer or entity.20

21(ii) A person may not suspend or terminate the employment of, or22

otherwise discipline or discriminate against, a person who reports,23without malice, under this section. A violation of this subsection is24subject to §301.413 that provides a nurse the right to file civil suit to25recover damages. The nurse may also file a complaint with the26regulatory agency that licenses or regulates the nurse’s practice27setting. The BON does not have regulatory authority over28practice settings or civil liability.29

30The provisions of this §217.19 adopted to be effective May 12, 2002, 27 TexReg 4019; amended to be effective July 5, 2004,31

29 TexReg 6296.; amended____2008,____Tex Reg____323334

1

Agenda Idem 6.81January 20082

Prepared by C. Marshall and J. Sparks34

ATTACHMENT B REPLACEMENT5Re-Proposed Rule 217.206Safe Harbor Peer Review7

89

101112131415161718

(a) Definitions1920

(1) Assignment: Designated responsibility for the provision or supervision of nursing21care for a defined period of time in a defined work setting. This includes but is not22limited to the specified functions, duties, practitioner orders, supervisory23directives, and amount of work designated as the individual nurse's responsibility.24Changes in the nurse’s licensure responsibilities assignment may occur at any25time during the work period .26

27(2) Bad Faith: Knowingly or recklessly taking action not supported by a reasonable28

factual or legal basis. The term includes misrepresenting the facts surrounding the29events under review, acting out of malice or personal animosity towards the nurse,30acting from a conflict of interest, or knowingly or recklessly denying a nurse due31process.32

33(3) Chief Nursing Officer (CNO): The registered nurse, by any title, who is34

administratively responsible for the nursing services at a facility, association, school,35agency, or any other setting that utilizes the services of nurses.36

37(4) Conduct Subject to Reporting defined by §301.401 of the Nursing Practice Act as38

conduct by a nurse that:3940

(A) violates the Nursing Practice Act (NPA) or a board rule and contributed to41the death or serious injury of a patient;42

43(B) causes a person to suspect that the nurse's practice is impaired by chemical44

dependency or drug or alcohol abuse;4546

(C) constitutes abuse, exploitation, fraud, or a violation of professional47boundaries; or48

49(D) indicates that the nurse lacks knowledge, skill, judgment, or50

conscientiousness to such an extent that the nurse's continued practice of51nursing could reasonably be expected to pose a risk of harm to a patient or52another person, regardless of whether the conduct consists of a single53incident or a pattern of behavior.54

Legend

Suggested Language from Comments: Blue BON Recommended Language: Green

Language Changes Underlined (strike-outs deleted) See Attachment F (table) for details

Section Headings in bold for ease in navigating rule Highlight = Changes & Rationale in Replacement Doc. for Jan 08 Brd Mtg

2

1(5) Duty to a patient: A nurse’s duty is to always advocate for patient safety,2

including any nursing action necessary to comply with the standards of nursing3practice (§ 217.11) and to avoid engaging in unprofessional conduct (§ 217.12).4This includes administrative decisions directly affecting a nurse’s ability to comply5with that duty.6

78

(6) Good Faith: Taking action supported by a reasonable factual or legal basis. Good9faith precludes misrepresenting the facts surrounding the events under review,10acting out of malice or personal animosity, acting from a conflict of interest, or11knowingly or recklessly denying a nurse due process. 12

13(7) Incident-Based Peer Review: Incident-based peer review focuses on determining14

if a nurse’s actions, be it a single event or multiple events (such as in reviewing up15to 5 minor incidents by the same nurse within a year’s period of time) should be16reported to the board, or if the nurse’s conduct does not require reporting because17the conduct constitutes a minor incident that can be remediated. The review18includes whether external factors beyond the nurse’s control may have contributed19to any deficiency in care by the nurse, and to report such findings to a patient safety20committee as applicable. 21

22(8) Malice: Acting with a specific intent to do substantial injury or harm to another.23

24(9) Minor incident: Conduct by a nurse that does not indicate that the nurse's continued25

practice poses a risk of harm to a patient or another person as described in rule26217.16.27

28(10) Nurse Administrator: Chief Nursing Officer (CNO) or the CNO’s designee.29

30(11) Nursing Peer Review Law (NPR law): Chapter 303 of the Texas Occupations Code31

(TOC). Nurses involved in nursing peer review must comply with the NPR Law.3233

(12) Nursing Practice Act (NPA): Chapter 301 of the Texas Occupations Code (TOC).34Nurses must comply with the NPA.35

36(13) Patient Safety Committee: Any committee established by an association, school,37

agency, health care facility, or other organization to address issues relating to38patient safety including:39

40(A) the entity’s medical staff composed of individuals licensed under Subtitle B41

(Medical Practice Act, Occupations Code §151.001 et seq.) ;4243

(B) a medical committee under Subchapter D, Chapter 161 of the Health and44Safety Code (§§161.031-.033); or 45

46(C) a multi-disciplinary committee, including nursing representation, or any47

committee established by the same entity to promote best practices and48patient safety.49

50(14) Peer Review: Defined by §303.001(5) of NPR Law (TOC ch. 303) as the evaluation51

of nursing services, the qualifications of a nurse, the quality of patient care rendered52by a nurse, the merits of a complaint concerning a nurse or recommendation53regarding a complaint. The peer review process is one of fact finding, analysis and54study of events by nurses in a climate of collegial problem solving focused on55

3

obtaining all relevant information about an event. Peer review conducted by any1entity must comply with NPR Law and with applicable Board rules related to2incident-based or safe harbor peer review. 3

45

(15) Safe Harbor: A process that protects a nurse from employer retaliation and6licensure sanction when a nurse makes a good faith request for peer review of7an assignment or conduct the nurse is requested to perform and that the nurse8believes could result in a violation of the NPA (TOC) or board rules. Safe9Harbor must be invoked prior to engaging in the conduct or assignment for which10peer review is requested, and may be invoked at anytime during the work11period when the initial assignment changes. 12

13(16) Texas Occupations Code (TOC): One of the topical subdivisions or “codes” into14

which the Texas Statutes or laws are organized. The Occupation Code contains the15statutes governing occupations and professions including the health professions.16Both the NPA and NPR Law are located within these statutes. The Occupations17Code can be changed only by the Texas Legislature. 18

19(17) Whistleblower Protections: protections available to a nurse that prohibit retaliatory20

action by an employer or other entity because the nurse:2122

(A) made a good faith request for Safe Harbor Nursing Peer Review under23§303.005(c) of NPR Law (TOC ch. 303) and rule 217.20, or24

25(B) refused to engage in an act or omission relating to patient care that would26

constitute a violation of the NPA or board rules as permitted by §301.35227of the NPA (TOC ch. 301) (Protection for Refusal to Engage in Certain28Conduct); A nurse invoking Safe Harbor under 217.20 must comply29with 217.20(g) if the nurse refuses to engage in the conduct or30assignment; or31

32(C) made a lawful report of unsafe practitioners, or unsafe patient care practices33

or conditions, in accordance with NPA (TOC) §301.4025 (report of unsafe34practices of non-nurse entities) and (j)(2) of this section.35

36(b) Purpose37

38The purpose of this rule is to: 39

40(1) define the process for invoking Safe Harbor;41

42(2) define minimum due process to which a nurse is entitled under safe harbor peer43

review, 4445

(3) to provide guidance to facilities, agencies, employers of nurses, or anyone who46utilizes the services of nurses in the development and application of peer review47plans; 48

49(4) to assure that nurses have knowledge of the plan as well as their right to invoke50

Safe Harbor;5152

4

(5) provide guidance to the peer review committee in making its determination of the1nurse’s duty to the patient. 2

3(c) Applicability of Safe Harbor Nursing Peer Review: 4

5(1) Nursing Peer Review (TOC) §303.0015 requires a person who regularly employs,6

hires or contracts for the services of ten (10) or more nurses (for peer review of an7RN, at least 5 of the 10 must be RNs) to permit a nurse to request Safe Harbor Peer8Review when the nurse is requested or assigned to engage in conduct that the9nurse believes is in violation of his/her duty to a patient. 10

11(2) Any person or entity that conducts Safe Harbor Nursing Peer Review is required to12

comply with the requirements of this rule.1314

(d) Invoking Safe Harbor1516

(1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and17at one any of the following times: {To make same as (e)(1)(B)}18

19(A) when the conduct is requested or assignment made; 20

21(B) when changes occur in the request or assignment that so modify the level22

of nursing care or supervision required compared to what was originally23requested or assigned that a nurse believes in good faith that patient24harm may result. 25

26C) when the nurse refuses to engage in the requested conduct or assignment.27

{Add to make same as section (e)(1)(B)(iii) r/t Safe Harbor28protections}29

30(2) The nurse must notify the supervisor requesting the conduct or assignment in writing31

that the nurse is invoking Safe Harbor. The content of this notification must meet32the requirements for a Quick Request Form described in paragraph (3). A detailed33written account of the Safe Harbor request that meets the minimum requirements34for the Comprehensive Written Request described in paragraph (4) below must35be completed before leaving the work setting at the end of the work period.36

37(3) Quick Request Form38

39(A) A nurse wishing to invoke Safe Harbor must make an initial request in40

writing that at a minimum includes the following. 4142

(i) the nurse(s) name making the safe harbor request and his/her43signature(s);44

45(ii) the date and time of the request;46

47(iii) the location of where the conduct or assignment is to be completed;48

4950

(iv) the name of the person requesting the conduct or making the51assignment;52

53(v) a brief explanation of why safe harbor is being requested.54

5

1 (B) The BON Safe Harbor Quick Request Form may be used to invoke the2

initial request for Safe Harbor, but use of the form is not required. The3initial written request may be in any written format provided the above4minimum information is provided.5

6(4) Comprehensive Written Request for Safe Harbor Peer Review7

8(A) A nurse who invokes Safe Harbor must supplement the initial written9

request under section (3)(A) by submitting a comprehensive request10in writing before leaving the work setting at the end of the work period.11This comprehensive written request must include a minimum of the12following information:13

14(i) the conduct assigned or requested, including the name and title of15

the person making the assignment or request;1617

(ii) a description of the practice setting (e.g., the nurse’s responsibilities,18resources available, extenuating or contributing circumstances19impacting the situation);20

21(iii) a detailed description of how the requested conduct or assignment22

would have violated the nurse’s duty to a patient or any other23provision of the NPA and Board Rules. If possible, reference the24specific standard (Rule 217.11) or other section of the NPA and/or25Board rules the nurse believes would have been violated. If a nurse26refuses to engage in the requested conduct or assignment, the nurse27must document the existence of a rationale listed under subsection28(g) of this rule.29

30(iv) If applicable, the rationale for the nurse’s not engaging in the31

requested conduct or assignment awaiting the nursing peer review32committee’s determination as to the nurse’s duty. The rationale33should refer to one of the justifications described in Subsection (g)(2)34for not engaging in the conduct or assignment awaiting a peer review35determination. 36

37(v) any other copies of pertinent documentation available at the time.38

Additional documents may be submitted to the committee when39available at a later time; and 40

41(vi) the nurse’s name, title, and relationship to the supervisor making the42

assignment or request.434445

(B) The BON Comprehensive Request for Safe Harbor Form may be used46when submitting the detailed request for Safe Harbor, but use of the47form is not required. The comprehensive written request may be in any48written format provided the above minimum information is included.49

50(5) If the nurse does not use the BON Quick Request and Comprehensive Request51

Forms to invoke Safe Harbor, the facility and nurse must follow the Safe Harbor52process as outlined in this rule. {TNA recommended deletion/no longer needed53since process spelled out in rule and nurses are supposed to comply with rules.}54

55

6

(6) The nurse invoking Safe Harbor is responsible for keeping a copy of the request for1Safe Harbor.2

3(7) A nurse may invoke Safe Harbor to question the medical reasonableness of a4

physician’s order in accordance with Nursing Peer Review Law (TOC) §303.005(e).5In this situation, the medical staff or medical director shall determine whether the6order was reasonable. 7

8(e) Safe Harbor Protections9

10(1) To activate protections outlined in Nursing Peer Review (TOC) §303.005(c) as set11

out in Subsection (2), the nurse shall:1213

(A) invoke Safe Harbor in good faith. 1415

(B) notify the supervisor in writing that he/she intends to invoke Safe Harbor in16accordance with subsection (d) of this section. This must be done prior to17engaging in the conduct or assignment for which safe harbor is requested18and at any of the following times:19

20(i) when the conduct is requested or assignment made;21

22(ii) when changes occur in the request or assignment that so modify23

the level of nursing care or supervision required compared to what24was originally requested or assigned that a nurse believes in25good faith that patient harm may result. 26

27(iii) when the nurse refuses to engage in the requested conduct or28

assignment.2930

(2) Subsections 303.005(c) and (h) of the Nursing Peer Review Law (TOC Ch. 303),31provide the following protections:32

33(A) A nurse may not be suspended, terminated, or otherwise disciplined or34

discriminated against for requesting Safe Harbor in good faith;3536

(B) A nurse or other person may not be suspended, terminated, or otherwise37disciplined or discriminated against for advising a nurse in good faith of the38nurse’s right to request a determination, or of the procedures for requesting39a determination.40

41(C) A nurse is not subject to being reported to the board and may not be42

disciplined by the board for engaging in the conduct awaiting the43determination of the peer review committee as permitted by Subsection (g).44A nurse's protections from disciplinary action by the board for engaging in45the conduct or assignment awaiting peer review determination remain in46place for 48 hours after the nurse is advised of the peer review committee's47determination. This time limitation does not affect to the nurse's protections48from retaliation by the facility, agency, entity or employer under §303.005(h)49of the NPR Law (TOC ch. 303) for requesting Safe Harbor.50

51(3) If retaliation occurs, Section 301.413 of the NPA provides a nurse the right to file52

civil suit to recover damages. The nurse may also file a complaint with the53appropriate regulatory agency that licenses or regulates the nurse’s practice54setting. The BON does not have regulatory authority over practice settings or55

7

civil liability. {TNA recommended addition for sentence sense.}1 2

(4) Safe Harbor protections do not apply to any civil action for patient injury that may3result from the nurse’s practice. {TNA suggested edit to clarify}4

5(f) Exclusions to Safe Harbor Protections6

7(1) A nurse’s protections from disciplinary action by the board under subsection8

(e)(2) do not apply to:910

(A) the nurse who invokes Safe Harbor in bad faith;11(B) conduct the nurse engages in prior to the request for Safe Harbor; or12(C) conduct unrelated to the reason for which the nurse requested Safe13

Harbor. 1415

(2) If the peer review committee determines that a nurse has engaged in16conduct subject to reporting that is not related to the request for Safe17Harbor the committee must comply with the requirements of § 217.1918Incident-Base Peer Review of this title. 19

20(g) Nurse’s Right To Refuse To Engage In Certain Conduct Pending Nursing Safe Harbor21

Peer Review Determination2223

(1) A nurse invoking safe harbor may engage in the requested conduct or assignment24while awaiting peer review determination unless the conduct or assignment is one in25which:26

27(A) the nurse lacks the basic knowledge, skills, and abilities that would be28

necessary to render the care or engage in the conduct requested or assigned29at a minimally competent level such that engaging in the requested30conduct or assignment would expose one or more patients to an31unjustifiable risk of harm; or32

33(B) the requested conduct or assignment would constitute unprofessional conduct34

and/or criminal conduct such as fraud, theft, patient abuse, or exploitation35.falsification, 36

37(2) if a nurse refuses to engage in the conduct or assignment because it is beyond38

the nurse’s scope as described under (1)(A) of this paragraph:394041

(A) the nurse and supervisor must collaborate in an attempt to identify an42acceptable assignment that is within the nurse’s scope and enhances43the delivery of safe patient care; and44

45(B) The results of this collaborative effort must be documented in writing46

and maintained in peer review records by the chair of the peer review47committee.48

49(h) Minimum Due Process50 51

(1) A person or entity required by §303.005(i) of NPR Law (TOC ch. 303) to provide52nursing peer review shall adopt and implement a policy to inform nurses of their right53to request a nursing peer review committee determination (Safe Harbor Nursing Peer54

8

Review) and the procedure for making a request.12

(2) In order to meet the minimum due process required by NPR Law (TOC) chapter 303,3the nursing peer review committee shall 4

5(A) comply with the membership and voting requirements as set forth in TOC6

§303.003;78

(B) exclude from the committee membership, any persons or person with9administrative authority for personnel decisions directly affecting the nurse;10

11(C) Limit attendance at the Safe Harbor Nursing Peer Review hearing by a CNO,12

nurse administrator, or other individual with administrative authority over the13nurse, including the individual who requested the conduct or made the14assignment, to appearing before the safe harbor peer review committee to15speak as a fact witness, and 16

17(D) Permit the nurse requesting safe harbor to:18

19(i) appear before the committee;20

21(ii) ask questions and respond to questions of the committee; and22

2324

(iii) make a verbal and/or written statement to explain why he or she25believes the requested conduct or assignment would have violated a26nurse’s duty to a patient.27

28(i) Safe Harbor Timelines29

30(1) The Safe Harbor Nursing Peer Review committee shall complete its review and notify31

the CNO or nurse administrator within 14 calendar days of when the nurse requested32Safe Harbor.33

34(2) Within 48 hours of receiving the committee’s determination, the CNO or nurse35

administrator shall review these findings and notify the nurse requesting safe harbor36of both the committee’s determination and whether the administrator believes in good37faith that the committee’s findings are correct or incorrect.38

39(3) The nurse’s protection from disciplinary action by the board for engaging in the40

conduct or assignment awaiting peer review determination expires 48 hours after the41nurse is advised of the peer review committee's determination. The expiration of this42protection does not affect the nurse's protections from retaliation by the facility,43agency, entity or employer under §303.005(h) of the NPR Law (TOC ch. 303) for44requesting Safe Harbor.45

4647

(j) General Provisions484950

(1) The Chief Nursing Officer (CNO) of a facility, association, school, agency, or of any51other setting that utilizes the services of nurses is responsible for knowing the52requirements of this Rule and for taking reasonable steps to assure that peer review53is implemented and conducted in compliance with the Nursing Practice Act (TOC ch.54301) and Nursing Peer Review Law (TOC ch. 303).55

9

1(2) Safe Harbor Nursing Peer Review must be conducted in good faith. A nurse who2

knowingly participates in nursing peer review in bad faith is subject to disciplinary3action by the Board.4

5(3) The peer review committee and participants shall comply with the confidentiality6

requirement of Nursing Peer Review Law(TOC) §§303.006 and 303.007 relating to7confidentiality and limited disclosure of peer review information.8

9(4) If a nurse requests a Safe Harbor Peer Review determination under Nursing Peer10

Review Law (TOC) §303.005(b) and refuses to engage in the requested conduct or11assignment pending the safe harbor peer review, the determinations of the committee12are not binding if the CNO or nurse administrator believes in good faith that the safe13harbor peer review committee has incorrectly determined a nurse’s duty.14

15(A) In accordance with §303.005(d), the determination of the safe harbor peer16

review committee shall be considered in any decision by the nurse’s employer17to discipline the nurse for the refusal to engage in the requested conduct;18

19(B) If the CNO or nurse administrator in good faith disagrees with the decision of20

the peer review committee’s determination, the rationale for disagreeing with21a peer review committee’s determination must be recorded and retained with22the peer review records; 23

24(A)(C) If the CNO or nurse administrator believes the peer review was conducted in25

bad faith, she/he has a duty to report the nurses involved under NPA (TOC)26§301.402 and rule 217.11(1)(K);27

28(D) This section does not affect the protections under §303.005(c)(1) and29

§301.352 relating to a nurse’s protection from disciplinary action or30discrimination for making a request for Safe Harbor Peer Review.31

32{Sub-section (4) language not changed from originally proposed language until this33latest draft. It still tracks statute language but has been re-ordered and broken up for34ease in understanding and clarity.}35

36(k) Use of Informal Work Group In Safe Harbor Nursing Peer Review37

38A facility may choose to initiate an informal review process utilizing a workgroup of the nursing39peer review committee provided that the final determination of the nurse’s duty complies with40the time lines set out in this rule and there are written policies for the informal workgroup that41require:42

43(A) the nurse:44

45(i) be informed how the informal workgroup will function and that the nurse does46

not waive any right to peer review by accepting or rejecting the use of an47informal workgroup; and 48

49(ii) consent, in writing, to the use of an informal workgroup;50

51(B) the informal workgroup to comply with the membership and voting requirements of52

Subsection (h) of this rule;5354

(C) the nurse to be provided the opportunity to meet with the informal workgroup;55

10

(D) the nurse to have the right to reject any decision of the informal workgroup and have1the entire committee determine if the requested conduct or assignment violates the2nurse’s duty to the patient(s), in which event members of the informal workgroup shall3not participate in that determination;4

5(E) ratification by the safe harbor peer review committee chair person of any decision6

made by the informal workgroup. If the chair person disagrees with a determination of7the informal workgroup, the chair person shall convene the full peer review committee8to review the conduct in question; and9

10(F) the peer review chair person communicate any decision of the informal work group to11

the CNO or nurse administrator. 1213

(l) Reporting Conduct of other Practitioners or Entities; Whistleblower Protections1415

(1) This subsection does not expand the authority of any safe harbor peer review16committee or the board to make determinations outside the practice of nursing.17

18(2) In a written, signed report to the appropriate licensing board or accrediting body, and19

in accordance with §301.4025, a nurse may report a licensed health care practitioner,20agency, or facility that the nurse has reasonable cause to believe has 21exposed a patient to substantial risk of harm as a result of failing to provide patient care22that conforms to:23

24(A) minimum standards of acceptable and prevailing professional practice, for a25

report made regarding a practitioner; or2627

(B) statutory, regulatory, or accreditation standards, for a report made regarding an28agency or facility.29

30(3) A nurse may report to the nurse's employer or another entity at which the nurse is31

authorized to practice any situation that the nurse has reasonable cause to believe32exposes a patient to substantial risk of harm as a result of a failure to provide patient33care that conforms to minimum standards of acceptable and prevailing professional34practice or to statutory, regulatory, or accreditation standards. For purposes of this35subsection, an employer or entity includes an employee or agent of the employer or36entity.37

38(4) A person may not suspend or terminate the employment of, or otherwise discipline or39

discriminate against, a person who reports, without malice, under this section. 40A violation of this subsection is subject to NPA (TOC) §301.413 that provides a nurse41the right to file civil suit to recover damages. The nurse may also file a complaint with42the regulatory agency that licenses or regulates the nurse’s practice setting. The43BON does not have regulatory authority over practice settings or civil liability.44

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Agenda Item 6.8 January 2008

Attachment C-1

Comments Received on Proposed Peer Review Rules

217.19 Incident-Based Peer Review and 217.20 Safe Harbor Peer Review Published in Texas Register Vo. 32, #44

November 2, 2007

[See attachment C-2 for TNA Comments]

From: Hagan, Paula [mailto:PaulaHagan@texashealth.org] Sent: Monday, December 03, 2007 8:19 PM To: Joy Sparks Subject: Comments to the proposed Texas Board of Nursing rules

Ms. Joy Sparks, Assistant General Counsel Texas Board of Nursing 333 Guadalupe, Suite 3-460 Austin, Texas 78701

Re: Proposed Board of Nursing Rules

Dear Ms. Sparks,

The Texas Health Resources (THR) Legal Department offers the following comments to the proposed Texas Board of Nursing Rules regarding §217.19 (Incident-Based Nursing Peer Review and Whistleblower Protections) and §217.20 (Safe Harbor Peer Review for Nurses and Whistleblower Protections). For your information, THR is a non-profit health care system which owns and operates thirteen hospitals in north Texas.

Section 217.19. Incident-Based Nursing Peer Review and Whistleblower Protections

1. Definitions.

a. We are concerned that the definition of “bad faith” and the exclusions in the definition of “good faith” are overly broad, will be subject to a lot of interpretation and argument, and could result in loss of immunity from civil liability for persons participating in nursing peer review. Our primary concerns with the definitions are that “bad faith” includes acting out of personal animosity or denying a nurse due process and that the same are excluded from the definition of “good faith”.

The nursing peer review laws contain a lot of detail on what constitutes minimum due process. Since under the proposed rules, the definition of bad faith includes “denying a nurse due process”, an inadvertent error made in providing a nurse with notice of a hearing or conducting a hearing could result in a finding of bad faith. For example, if a chair of an incident-based peer review committee miscounted and scheduled a hearing 20 days after notice was sent to the nurse instead of the required minimum of 21 days, the nurse who was reviewed would have an argument that she was not afforded due process. In addition, “personal animosity towards the nurse” is quite subjective.

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In addition, we have a concern that because of the two definitions of good faith and bad faith in the proposed rules (because of how broad the definitions are, good faith and bad faith have to be defined differently in §217.19 and in §217.20), and having two different in the rules for two different purposes will cause confusion in their application.

As a result, we propose that “bad faith” be defined as “acting with malice” and good faith be defined as “acting without malice”. This would simplify the definitions, be consistent with the statutes (see Item 7 below), and avoid the need for having two sets of definitions of good faith and bad faith in the rules.

b. We have two very minor comments to the defined term “Nursing Peer Review”. We suggest calling it Nursing Peer Review Laws” or “Nursing Peer Review Statutes” rather than just “Nursing Peer Review” to avoid people confusing it with the new defined term under §217.19(d)(11) for “Peer Review”. In addition, in the second sentence, we suggest adding the word “in” after “involved”.

c. We have a very minor comment to the definition of “Nursing Practice Act” under §217.19(d)(9). We suggest changing the word “includes” to “means” since the Nursing Practice Act does not include any other statutes.

e. We have a very minor comment to the definition of “Peer Review”. We suggest revising the beginning of the first sentence to read as follows: “Defined in the Texas Occupations Code (TOC) §303.001(5), a section of the Nursing Peer Review Laws, …”.

2. We have a very minor comment to §217.19(c), “Applicability of Incident-Based Peer Review”. We suggest revising the beginning of the first sentence to read as follows: “Texas Occupations Code (TOC) (a section in the Nursing Peer Review Laws) requires a person…”.

3. Regarding §217.19(d)(2)(C), we are unclear what is meant by “intemperate use” and “diminished mental capacity” since these are new terms not referred to in the statutes and are not defined.

4. Regarding §217.19(e) regarding “Use of Informal Work Group In Incident Based Peer Review”, we are not sure if the proposed rules are entirely clear regarding when an informal work group may or may not be used. For example, is it permissible to use an informal work group to conduct an initial review of any report to an incident-based peer review committee or only conduct that appears to be a minor incident? Is it permissible for an informal work group to conduct an initial review of incident-based peer review of external factors after a report of a nurse to the board has already occurred or when a nurse is or is suspected of being impaired?

5. Regarding §217.19(e)(B), we believe this subsection is not entirely clear. We ask the Nursing Practice Advisory Committee to consider whether a definition of “practice violation” should be added to the proposed rules.

6. Section 217.19(j) requires that two conditions be met before a report made to an incident-based peer review committee satisfies the nurse’s duty to report to the BON; however, both of these conditions are outside of the reporting nurse’s control. Section §217.19(j)(B) [the second of the two conditions] provides that the nurse has no reason to believe the peer review committee’s determination was in bad faith. We are not certain that the practical application of this condition will always be logical. For example, if an incident-based peer review committee could be found to have acted in bad faith in reporting a nurse to the BON (e.g. because of the broad definition of bad faith such as if the nurse were found to have been denied minimum due process because the nurse was inadvertently given 20 days notice of a hearing instead of 21 days). In such case, the nurse who reported the conduct would not have discharged her duty to report to the BON.

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7. Regarding §217.19(l), “Integrity of Incident-Based Peer Review Process”, a nurse is subject to disciplinary action by the Board of Nursing for knowingly participating in incident-based peer review in bad faith. With such a broad definition of bad faith, a nurse reporting another nurse could be subjected to disciplinary action if a reported nurse alleged that the committee acted with personal animosity. We believe such a broad definition will have a chilling effect on nurses coming forward to report a matter of concern about another nurse and/or on nurses’ willingness to serve on incident based peer review committees because of the concern of being subject to disciplinary action by the BON or potential loss of immunity from civil liability.

In addition, we noticed an inconsistency in the terminology used in §217.19(l) and that of §301.402(f) of the Nursing Practice Act (which only provides for the term “without malice” rather than in good faith or bad faith and §303.101 of the nursing peer review laws (which also only provides for the term “without malice”). For example, §303.101 of the nursing peer review laws affords nursing peer review committee members, nursing schools, hospitals, and others immunity from civil liability for participating in peer review if the person acted “without malice”. We believe it is extremely important for the BON rules to be consistent with the statutes especially with respect to affording persons taking part in peer review with immunity from civil liability. We respectfully request the BON and Nursing Practice Advisory Committee consider simplifying the definitions as described above and consider the practical application of the definitions of good faith and bad faith in a number of scenarios before finalizing the rules.

Section 217.20. Safe Harbor Peer Review for Nurses and Whistleblower Protections

1. We are not sure whether the proposed rules are entirely clear on when a nurse may or may not refuse to engage in an activity that he/she believes violates her duty to a patient.

2. We have the same comments and concerns about the definitions of “bad faith” and “good faith” under §217.20 for the reasons stated above.

Thank you for the opportunity to submit our comments to the proposed rules. The THR hospitals are in the process of updating their nursing peer review policies to comply with SB 993 and HB 2426, and we look forward to publication of the final rules. If you have any questions, feel free to call me at (817) 462-7147 or e-mail me.

Sincerely, Paula Hagan Vice President & Assistant General Counsel Texas Health Resources 611 Ryan Plaza Drive, Suite 1400 Arlington, Texas 76011 paulahagan@texashealth.org (817) 462-7156 (817) 462-7147 Trisha Rees, Administrative Assistant

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HIGGINBOTHAM & ASSOCIATES LLC

ELIZABETH L. HIGGINBOTHAM, RN, JD lizh@texasnurse-law.com

AUSTIN OFFICE KYLE OFFICE THE LITTLEFIELD BUILDING 251 WITTE DRIVE 106 EAST 6TH STREET, SUITE 900 KYLE, TEXAS 78640 AUSTIN, TEXAS 78701 (512) 262-0381

OFFICE (512) 322-5719 OFFICE (512) 692-2752 FAX (512) 692-2752 FAX Via Facsimile 305-8101 Ms. Joy Sparks, Attorney and Electronic Mail Board of Nursing 333 Guadalupe Street, Suite 3-460 Austin, Texas 78701 Dear Joy,

As you know, I had the pleasure of presenting testimony before the public health committee on May 2, 2007 related to Whistleblower protection. My opposition to this legislation was grounded in the fact that there are no “teeth” in the law to punish hospitals for not abiding by nurses’ rights. Yes, there is a “civil penalty”, but it requires the nurse to file a lawsuit. I have now filed three cases and as you know, just filing a lawsuit does not mean that the nurse will win. It is an expensive proposition with regard to time and not many attorneys are willing to even look at these cases. I am concerned that some of the language in the Proposed Rules may detract from rights that nurses currently have.

Before I address the concerns with proposed language, I laud the committee for putting the nurses’ RIGHT to refuse in plain English. We know that Lunsford delineates a nurse’s duty to his/her patient and T.O.C. 301.352 (a) speaks to refusal. Thank you for eliminating any doubt about the nurse’s ability to advocate for a patient by refusing unsafe assignments. In addition, I believe that the ability to refuse is enhanced by the “user friendly” amendments to the Safe Harbor rules, allowing a brief initial request for Safe Harbor. Finally, I appreciate the NPAC’s well considered recognition that the right to refuse may come at any time during a shift or tour of duty (217.20 (a) (15) (b) and (d).

217.19 (a); 217.20 (a)

(10) Patient Safety Committee: Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety that includes:

(A) the entity’s medical staff…

(B) a medical committee…or

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(C) A multi-disciplinary committee, including nursing representation, or any committee established or contracted within the same entity to promote best practices and patient safety, may apply as appropriate.”

Is the list intended to be exclusive with regard to the specified entities, or do you mean “including but not limited to” ? The old adage about the “fox guarding the henhouse” is applicable here. Allowing a hospital to completely control a patient safety committee is tantamount to a self evaluation which is completely subjective; the likelihood of a self report to a licensing or accrediting body is unlikely. Rules such as HIPAA and the Texas Health & Safety Code provisions protect the health information of any consumer whose health information would be considered negates any challenge that a hospital would make about breach of confidentiality.

Whistleblower protections need to be strengthened; penalties for a hospital’s refusal to give a nurse safe harbor peer review (beyond reporting the DON or CNE to the Board of Nursing) should be considered. Otherwise, the Board will be inundated with complaints that an already overburdened staff would have to deal with.

217.13 Peer Assistance Rules

My concerns here relate to the forced disclosure of personal health information with regard to mental health diagnosis and addiction to employers (the employment contract, required waivers) and/or the public in cases where there are no practice violations. See proposed rule at 217.13 (e) (F) (G) (H). In addition, the proposed rule does not speak to mental health conditions. I believe that the lack of confidentiality is violative of Title II of the Americans with Disabilities Act. Bipolar and other mental health disorders required to be disclosed The issue here pertains to the handling of mental health and chemical dependency diagnoses and information by the Board and its sanctioned Peer Assistance Program. Nurses are required to disclose a diagnosis of Bipolar at initial licensure or renewal; this is not an issue and has been settled recognizing that the State has a right to the information because of public safety concerns. If there are no practice related allegations that accompany the disclosure of the diagnosis, the nurse is allowed to enter the Texas Peer Assistance Program (TPAPN) which is non-disciplinary and allegedly “confidential”. The confidentiality only extends to the Board not publishing the fact of the Order in their quarterly publication. To participate in TPAPN, the nurse is required to inform his or her employer of participation in the program and sign a contract with the employer (217.13 (e) (F). Hence, the employer who would otherwise not be entitled to that health information (unless the nurse requested accommodation) obtains it. If the nurse refuses to enter into TPAPN, the alternative is for the nurse to fight the case whereby the diagnosis becomes the subject of Public Formal Charges (217.13(3)). Settlement of the matter with the Board results in issuance of a public Order which

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likewise requires employer notification and also contains personal health information in the Findings of Fact. The nurse’s right to privacy should not be compromised because of a mental health diagnosis or the disease of addiction; moreover, these persons are in a protected class and should not be discriminated against as a result of their disease processes. There are less restrictive means available to the Board with regard to monitoring persons who are diagnosed with mental health disease or chemical dependency that is required to be disclosed that does not require unnecessary disclosure of personal mental health information. For example, the Board could (but refuses to) enter into a confidential Order with the nurse and cause a drug screening company or the nurse’s mental health provider to regularly inform the Board of treatment, compliance with recommended treatment and fitness to practice. The Board of Nursing has adopted less restrictive means to monitor persons who are suspected of having a substance abuse issue, whereby employers are not involved in the process and do not have to be notified (EEP program through TPAPN). The persons with chemical dependency and mental health issues are being treated differently, and are actually singled out simply because of their diagnoses. Other agencies have confidential orders for persons who have no allegations of practice deficiencies. This Board can and should adopt similar procedures. Respectfully submitted,

Elizabeth L. Higginbotham, RN, J.D. ELH/lkm

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From: Julia Soper [mailto:jasoper@psja.k12.tx.us] Sent: Tuesday, November 20, 2007 11:51 AM To: Joy Sparks Subject: comments related to proposed rules Title 22 from Texas Register 11/2/07

Ms. Sparks, I hope I am not too late to submit comments related to the proposed rules 217.19 and 217.20 related to nursing peer review. I found the re-wording of the Peer Review rules very helpful. Having worked with these guidelines in their previous format, I appreciate the changes that have been made that help the document to flow more logically and understandably, and recognize the daunting amount of work involved to put them in their present format. My comments in the attached document are primarily editorial in nature with the aim of improving the clarity of a document that already promises to be a more “user-friendly” guide to nurses. In general, my comments focus on improving language consistency and eliminating redundant terminology. There are several sections (Definitions, Use of Informal Work Group, Reporting Conduct of Other Practitioners) that, with minor changes, appear in both rules, yet they are formatted and worded somewhat differently. As much as possible for the reader’s sake, these sections should be identical. There is also an over-abundance of various wordings of “incident-based nursing peer review” and “safe harbor nursing peer review” in the rules. I realize the need for accurate legal terminology, but once a particular type of committee or process has been referenced in a sentence or section, it is generally understandable and desirable to use a shortened term when the committee or process is mentioned again. A final area that was confusing were the legal references throughout the document. As an example, chapter 303 of the Texas Occupations Code is variously referred to as §303, Nursing Peer Review (TOC) §303, TOC §303, Texas Occupations Code (TOC) §303, Nursing Peer Review (TOC) chapter 303, Nursing Peer Review (TOC ch 303), and Texas Occupations Code chapter 303 (Nursing Peer Review). In addition, some of the references are followed by a short parenthetical phrase describing the referenced law, which I find helpful, myself, while other references do not. If it is appropriate and if the Board of Nursing agrees that these comments have merit, I would be willing to review the document an additional time to incorporate these suggestions. In the meantime, I appreciate the opportunity to offer comments related to nursing practice and your time involved in reviewing my suggestions. Sincerely, Julia Soper, RN Director of Health Services Pharr-San Juan-Alamo ISD 601 E. Kelly, Pharr, TX 78577 Phone: 956-702-6003 Fax: 956-783-2256

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§217.19.Incident-Based Nursing Peer Review and Whistleblower Protections.

(a) Definitions.

(1) Bad Faith: Taking action not supported by a reasonable factual or legal basis. The term includes falsely portraying the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or denying a nurse due process.

(2) 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.

(3) Conduct Subject to Reporting is conduct by a nurse that:

(A) violates chapter 301 of 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. (§301.401(1))

(4) Duty to a Patient: Conduct required by standards of nursing practice (§217.11) or prohibited by unprofessional conduct (§217.12), including administrative decisions directly affecting a nurse's ability to comply with that duty, as adopted by the board.

(5) Good Faith: Taking action supported by a reasonable factual or legal basis. Good faith precludes falsely portraying the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or denying a nurse due process.

(6) Incident-Based Peer Review: Incident-based peer review focuses on determining if a nurse's actions, be it a single event or multiple events (such as in reviewing up to 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. (§303.001(5))

(7) 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.

(8) Nursing Peer Review (NPR): Consists of chapter 303 of the Texas Occupations Code (TOC) and can only be changed by the Texas Legislature. Nurses involved in nursing peer review must comply with the NPR statutes.

(9) Nursing Practice Act (NPA): Includes chapters 301, 304, and 305 of the Texas Occupations Code (TOC) and can only be changed by the Texas Legislature. Nurses must comply with the NPA.

(10) Patient Safety Committee: Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety that includes:

(A) the entity's medical staff composed of individuals licensed under Subtitle B (Medical Practice Act, Occupations Code §151.001 et seq.);

(B) a medical committee under Subchapter D, Chapter 161, Health & Safety Code (§§161.031 - 161.033); or

Comment [JAS1]: This section should have identical wording of the definitions that are the same in §217.20 (a).

Deleted: ,

Deleted: ;

Deleted: c

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(C) a multi-disciplinary committee, including nursing representation, or any committee established by or contracted within the same entity to promote best practices and patient safety, as appropriate.

(11) Peer Review: Defined in Nursing Peer Review Law (NPR law), contained within the Texas Occupations Code (TOC) §303.001(5), is 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 recommendation regarding a complaint. The 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.

(12) Texas Occupations Code (TOC): One part of the Texas Statutes, or laws. The Nursing Practice Act (NPA) and Nursing Peer Review (NPR) statutes are but a few of the chapters of Texas laws contained within the TOC.

(13) Whistleblower Protections: Protections available to a nurse that prohibit retaliatory action by an employer or other entity for:

(A) a request made by a nurse under TOC §303.005(c) related to invoking safe harbor protections, or

(B) a nurse's refusal under TOC §301.352 to engage in an act or omission relating to patient care that would constitute grounds for reporting the nurse to the board, that constitutes a minor incident, or that violates the Nursing Practice Act or board rules; or

(C) a report made by a nurse under TOC §301.4025 (report of unsafe practices of non-nurse entities) and subsection (i)(2) of this section, that may also be protected under other laws or regulations, concerning unsafe practitioners or unsafe patient care practices or conditions. Protection from retaliatory action applies to any report made to a licensing agency, accrediting body, regulatory entity, or administrative personnel within the facility or organization that the nurse believes has the power to take corrective action.

(b) Purpose. The purpose of this rule is to define minimum due process to which a nurse is entitled under incident-based peer review, to provide guidance to facilities, agencies, schools, or anyone who utilizes the services of nurses in the development and application of incident-based peer review plans, to assure that nurses have knowledge of the plan, and to provide guidance to the incident-based peer review committee in its fact finding process.

(c) Applicability of Incident-Based Peer Review. Nursing Peer Review (TOC) §303.0015 requires a person who regularly employs, hires or contracts for the services of ten (10) or more nurses (for peer review of a RN, at least 5 of the 10 must be RNs) to conduct nursing peer review for purposes of NPA §§301.402(e) (relating to alternate reporting by nurses to peer review), 301.405(c) (relating to peer review of external factors as part of employer reporting), and 301.407(b) (relating to alternate reporting by state agencies to peer review).

(d) Minimum Due Process.

(1) A licensed nurse subject to incident-based peer review is entitled to minimum due process under Nursing Peer Review (TOC) §303.002(e). Any person or entity that conducts incident-based peer review must comply with the due process requirements of this section even if they do not utilize the number of nurses described by subsection (c) of this section.

(2) A facility conducting incident-based peer review shall have written policies and procedures that, at a minimum, address:

(A) level of participation of nurse or nurse's representative at an incident-based peer review hearing beyond that required by subsection (d)(3)(F) of this section;

(B) confidentiality and safeguards to prevent impermissible disclosures including written agreement by all parties to abide by Nursing Peer Review (TOC) §303.006 and §303.007;

(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 NPA (TOC) §301.410, and subsection (g) of this section;

Deleted: may apply

Deleted: it

Deleted: s

Deleted: p

Deleted: affects a

Deleted: ,

Deleted: a

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(D) reporting of nurses to the board by incident-based peer review committee in accordance with the NPA (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 peer review proceedings initiated before the change was adopted unless agreed in writing by the nurse being reviewed.

(3) In order to meet the minimum due process required by Nursing Peer Review (TOC) chapter 303, the nursing peer review committee must:

(A) comply with the membership and voting requirements as set forth in Nursing Peer Review (TOC) §303.003(a) - (d);

(B) exclude from the committee, including attendance at the incident-based 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 incident-based peer reviewed from appearing before the incident-based peer review 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) that the incident-based 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 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 is

(II) otherwise agreed upon by the nurse and incident-based peer review committee.

(iii) Said notice must include a written copy of the incident-based peer review plan, policies and procedures.

(D) Include in the written notice:

(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) 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 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;

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(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) conclude its review no more than fourteen (14) calendar days from the incident-based peer review hearing, or in compliance with subsection (d)(3)(C)(ii) of this section 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 peer review record to be included whenever the committee's findings are disclosed;

(J) An incident-based peer review committee's determination to report a nurse to the board cannot be overruled, changed, or dismissed.

(4) Nurse's Right To Representation

(A) A nurse shall have a right of representation as set out in this section. The rights set out in this section are minimum requirements and a facility may allow the nurse more representation. The incident-based 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 peer review hearing must comply with the facility's incident-based 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 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 peer review committee is present at the incident-based peer review hearing in any capacity, including serving as a member of the incident-based 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.

(5) A nurse whose practice is being evaluated may properly choose not to participate in the proceeding after the nurse has been notified under subsection (d)(3)(H) of this section. Nursing Peer Review (TOC) §303.002(d) prohibits nullifying by contract any right a nurse has under the incident-based peer review process. If a nurse elects not to participate in incident-based peer review, the nurse waives any right to procedural due process under TOC §303.002 and subsection (d) of this section.

(e) Use of Informal Work Group In Incident-Based Peer Review.

(1) A facility may choose to initiate an informal review process utilizing a workgroup of the nursing incident-based peer review committee provided there are written policies for the informal workgroup that require:

(A) the nurse to be informed of how the informal workgroup will function, and to consent, in writing, to the use of an informal workgroup. A nurse does not waive any right to incident-based peer review by accepting or rejecting the use of an informal workgroup;

(B) the committee chair to be notified to determine if peer review should be terminated and the nurse reported to the board if the informal workgroup believes that a practice violation has occurred and suspects that the nurse's practice is impaired by chemical dependency or diminished mental capacity;

Comment [JAS2]: This statement does not appear to be part of minimum due process. It is also mentioned in 2 additional places where it seems to fit more appropriately: (i)(7) and (l)(3)

Comment [JAS3]: This section should be identical, in wording and format, to the similar section in §217.20 (j), as much as possible. It is confusing to the reader to have two sections that are so close but with minor differences.

Deleted:

Comment [JAS4]: Since there is only a (1) in this section and no (2), the info contained in (1) should be moved to follow directly after the section title, as was done in §217.20 (j)

Deleted: if the informal workgroup believes that a practice violation has occurred and suspects that the nurse's practice is impaired by chemical dependency or diminished mental capacity,

Deleted: must

Comment [JAS5]: This section needs to be revised as indicated to maintain consistency in wording throughout the section.

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(C) the informal workgroup to comply with the membership and voting requirements of subsection (d)(3)(A) and (B) of this section;

(D) the nurse be provided the opportunity to meet with the informal workgroup;

(E) the nurse to have the right to reject any decision of the informal workgroup and to then have his/her conduct reviewed by the incident-based peer review committee, in which event members of the informal workgroup shall not participate in that determination; and

(F) ratification by the incident-based peer review committee chair person of any decision made by the informal workgroup. If the chair person disagrees with a determination of the informal workgroup to remediate a nurse for one or more minor incidents, the chair person shall convene the full peer review committee to review the conduct in question.

(G) the peer review chair person must communicate any decision of the informal work group to the CNO.

(f) Exclusions to Minimum Due Process Requirements. The minimum due process requirements set out in subsection (d) of this section do not apply to:

(1) Peer review conducted solely in compliance with NPA (TOC) §301.405(c) relating to incident-based peer review of external factors, after a report of a nurse to the board has already occurred under NPA (TOC) §301.405(b); or

(2) when during the course of the incident-based peer review process, a practice violation is identified as a possible consequence of the nurse's practice being impaired as described under subsection (g) of this section; or

(3) when a person required to report a nurse believes that a nurse's practice is impaired or suspected of being impaired has also resulted in a violation under NPA (TOC) §301.410(b), that requires a direct report to the board.

(g) Incident-Based Peer Review of a Nurse's Impaired Practice/Lack of Fitness.

(1) Instead of requesting review by a peer review committee, a nurse whose practice is impaired or suspected of being impaired due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity, with no evidence of nursing practice violations, shall be reported, in accordance with NPA (TOC) §301.410(a) (related to reporting of impairment), to either:

(A) the board; or

(B) a board-approved peer assistance program.

(2) If during the course of an incident-based peer review process, there is a reasonable factual basis for a determination that a practice violation occurred due to a nurse's practice impairment or suspected practice impairment or lack of fitness due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity of a reported nurse, the process shall be suspended, and the nurse reported to the board in accordance with NPA (TOC) §301.410(b) (related to required report to board when practice violations exist with suspected practice impairment/lack of fitness).

(A) Following suspension of peer review of the nurse, the incident-based peer review committee shall proceed to evaluate external factors to determine if:

(i) any factors beyond the nurse's control contributed to a practice violation,

(ii) if any deficiency in external factors enabled the nurse to engage in unprofessional or illegal conduct, and

(iii) if the committee determines external factors do exist for either clause (i) or (ii) of this subparagraph, the committee shall report its findings to a patient safety committee or to the CNO if there is no patient safety committee.

Comment [JAS6]: Need consistency in terminology—in this section alone, the person in charge of the committee is referred to using 4 different phrases: committee chair, incident-based peer review committee chair person, chair person, and peer review chair person .

Comment [JAS7]: Since this section discusses both review based on an incident (section 2), as well as review of a nurse when no incident is involved (section 1), perhaps the section would be better re-named by removing the words “Incident-Based” from the title.

Comment [JAS8]: Who is requesting: the nurse? Another nurse? The sentence still maintains its meaning by leaving this word out.

Deleted: incident-based peer review

Comment [JAS9]: “it’s” = “it is”; Microsoft’s grammar program does not pick this up.

Deleted: it's

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(B) A facility, organization, contractor, or other entity does not violate a nurse's right to due process under TOC §303.002(e) relating to peer review by suspending the committee's review and reporting the nurse to the Board in accordance with paragraph (2) of this subsection.

(3) Neither paragraph (1) or (2) of this subsection above preclude a nurse from self-reporting to a peer assistance program or appropriate treatment facility.

(h) Confidentiality of Proceedings.

(1) Confidentiality of information presented to and/or considered by the incident-based peer review committee shall be maintained and not disclosed except as provided by Nursing Peer Review (TOC) §§303.006, 303.007, and §303.0075. Disclosure/discussion by a nurse with the nurse's attorney is proper because the attorney is bound to the same confidentiality requirements as the nurse.

(2) Sharing of Information: In accordance with Nursing Peer Review (TOC) §303.0075, a nursing incident-based peer review committee and any patient safety committee established by or contracted with the same entity, may share information. A record or determination of a patient safety committee, or a communication made to a patient safety committee, is not subject to subpoena or discovery and is not admissible in any civil or administrative proceeding, regardless of whether the information has been provided to a nursing peer review committee.

(A) The privileges under this subsection may be waived only through a written waiver signed by the chair, vice chair, or secretary of the patient safety committee.

(B) This section does not affect the application of Nursing Peer Review (TOC) §303.007 (relating to disclosures by peer review committee) to a nursing peer review committee.

(C) A committee that receives information from another committee shall forward any request to disclose the information to the committee that provided the information.

(3) A CNO shall assure that policies relating to sharing of documents with the incident-based peer review committee address, at a minimum:

(A) methods in which shared committee communications and documents are labeled and maintained as to which committee originated the documents or communications;

(B) separation of confidential information under incident-based peer review from the nurse's human resource file;

(C) the confidential and separate nature of incident-based peer review as well as documents that are shared with incident-based peer review, and that violations of said policies are subject to being reported to the board.

(i) Committee Responsibility to Evaluate and Report.

(1) In evaluating a nurse's conduct, the incident-based peer review committee shall review the evidence to determine the extent to which any deficiency in care by the nurse was the result of deficiencies in the nurse's judgment, knowledge, training, or skill rather than other factors beyond the nurse's control. A determination that a deficiency in care is attributable to a nurse must be based on the extent to which the nurse's conduct was the result of a deficiency in the nurse's judgment, knowledge, training, or skill.

(2) A incident-based peer review committee shall consider whether a nurse's conduct constitutes one or more minor incidents under §217.16, Minor Incidents, of this title. In accordance with this rule, the committee may determine that the nurse:

(A) can be remediated to correct the deficiencies identified in the nurse's judgment, knowledge, training, or skill, or

(B) should be reported to the board for either a pattern of practice that fails to meet minimum standards, or for one or more events that the committee determines cannot be categorized as a minor incident(s).

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(3) Report Not Required: A nursing incident-based peer review committee is not required to submit a report to the board if:

(A) the committee determines that the reported conduct was a minor incident that is not required to be reported in accordance with provisions of §217.16, Minor Incidents, of this title; or

(B) the nurse has already been reported to the board under NPA (TOC) §301.405(b) (employer reporting requirements).

(4) If an incident-based peer review committee finds that a nurse has engaged in conduct subject to reporting to the board, the committee shall submit to the board a written, signed report that includes:

(A) the identity of the nurse;

(B) a description of the conduct subject to reporting;

(C) a description of any corrective action taken against the nurse;

(D) a recommendation as to whether the board should take formal disciplinary action against the nurse, and the basis for the recommendation;

(E) the extent to which any deficiency in care provided by the reported nurse was the result of a factor beyond the nurse's control, and

(F) any additional information the board requires.

(5) If an incident-based peer review committee determines that a deficiency in care by the nurse was the result of a factor(s) beyond the nurse's control, in compliance with TOC §303.011(b) (related to required peer review committee report when external factors contributed to a nurse's deficiency in care), the committee must submit a report to the applicable patient safety committee, or to the CNO if there is no patient safety committee. A patient safety committee must report its findings back to the incident-based peer review committee.

(6) An incident-based peer review committee is not required to withhold its determination of the nurse being reviewed pending feedback from a patient safety committee, unless the committee believes that its determination is necessary for the incident-based peer review committee to determine if the nurse's conduct is reportable.

(A) If an incident-based peer review committee finds that factors outside the nurse's control contributed to a nurse's error, in addition to reporting to a patient safety committee, the incident-based peer review committee may also make recommendations for the nurse, up to and including reporting to the board.

(B) An incident-based peer review committee may extend the time line for completing the review process (extending the 45 days by no more than an additional 45 days) if the committee members believe they need input from a patient safety committee. The incident-based peer review committee must complete the review of the nurse within this 90-day time frame.

(7) An incident-based peer review committee's determination to report a nurse to the board cannot be overruled, changed, or dismissed.

(j) Nurse's Duty to Report.

(1) A report made by a nurse to a nursing incident-based peer review committee will satisfy the nurse's duty to report to the board under NPA (TOC) §301.402 (mandatory report by a nurse) provided that the following conditions are met:

(A) the reporting nurse shall be notified of the committee's actions or findings and shall be subject to Nursing Peer Review (TOC) §303.006 (confidentiality of peer review proceedings); and

(B) the nurse has no reason to believe the committee made its determination in bad faith.

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(2) A nurse may not be suspended, terminated, or otherwise disciplined or discriminated against for filing a report made in good faith under this rule and NPA §301.402(f) (retaliation for a good faith report prohibited). A violation of this subsection or NPA §301.402(f) is subject to NPA §301.413 (retaliatory action prohibited).

(k) State Agency Duty to Report. A state agency that has reason to believe that a nurse has engaged in conduct subject to reporting shall report the nurse in writing to:

(1) the board or

(2) the applicable nursing peer review committee in lieu of reporting to board.

(l) Integrity of Incident-Based Peer Review Process.

(1) NPA chapter 303, requires that incident-based peer review be conducted in good faith. A nurse who knowingly participates in incident-based peer review in bad faith is subject to disciplinary action by the board under the NPA §301.452(b).

(2) The CNO 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 incident-based peer review is implemented and conducted in compliance with the NPA, Nursing Peer Review, and this rule.

(3) A determination by an incident-based peer review committee, a CNO, or an individual nurse to report a nurse to the board cannot be overruled, dismissed, changed, or reversed. An incident-based peer review committee, CNO, and individual nurse each have a separate responsibility to protect the public by reporting a nurse to the board as set forth in NPA §301.402, §301.405, §217.11(1)(K), and this rule.

(m) Reporting Conduct of other Practitioners or Entities/Whistleblower Protections.

(1) This section does not expand the authority of any incident-based 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 §301.4025 (report of unsafe practices of non-nurse entities), 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.

(i) 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.

(ii) A person may not suspend or terminate the employment of, or otherwise discipline or discriminate against, a person who reports, without malice, under this section. A violation of this subsection is subject to §301.413 (retaliatory action prohibited).

§217.20.Safe Harbor Peer Review for Nurses and Whistleblower Protections.

(a) Definitions.

(1) Bad Faith: Taking action not supported by a reasonable factual or legal basis. The term includes falsely portraying the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or denying a nurse due process.

Comment [JAS10]: This section should be identical, in wording and format, as much as possible, to the similar section in §217.20 (k).

Comment [JAS11]: These 2 sections should be re-labeled as sections (3) and (4), as the information does not appear to be pertinent to section (2)(B).

Comment [JAS12]: This section should have identical wording of the definitions that are the same in §217.19 (a).

23

(2) 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 or that person’s designee. Also known as the Nurse Administrator.

(3) Conduct Subject to Reporting means conduct by a nurse that:

(A) violates the Nursing Practice Act (NPA) chapter 301 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. (NPA §301.401(1))

(4) Duty to a patient: Conduct required by standards of nursing practice (§217.11) or prohibited under unprofessional conduct (§217.12) including administrative decisions directly affecting a nurse's ability to comply with that duty.

(5) Good Faith: Taking action supported by a reasonable factual or legal basis. Good faith precludes falsely portraying the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or denying a nurse due process.

(6) 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.

(7) Nursing Peer Review (NPR law): Consists of chapter 303 of the Texas Occupations Code (TOC) and can only be changed by the Texas Legislature. Nurses involved nursing peer review must comply with the NPR statutes.

(8) Nursing Practice Act (NPA): Includes chapter 301 of the Texas Occupations Code (TOC) and can only be changed by the Texas Legislature. Nurses must comply with the NPA.

(9) Patient Safety Committee: Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety that includes:

(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, Health & Safety Code (§§161.031 - 161.033); or

(C) a multi-disciplinary committee including nursing representation, or any committee established by or contracted within the same entity to promote best practices and patient safety, as appropriate.

(10) Peer Review: Defined in the NPR law, contained within Texas Occupations Code (TOC) §303.001(5), is 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 recommendation regarding a complaint. The 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.

(11) Safe Harbor: A process allowing an individual to request in good faith a review of a situation, action, conduct, or assignment while being protected from retaliation and licensure liability.

(12) Safe Harbor Peer Review: The determination if the requested conduct or assignment could have potentially endangered a patient, resulting in the nurse violating his/her duty to the patient. A safe harbor peer review committee reviewing a nurse's request for safe harbor must also ascertain if external factors in the systematic approach and/or nursing policies related to the conduct under review could prevent the recurrence of the same or similar unsafe situation. In accordance with Nursing Peer Review (TOC)

Formatted: Bullets and Numbering

Formatted: Bullets and Numbering

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Comment [JAS13]: Different wording? Not clear what this means.

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§303.011(b), if the committee determines that external factors contributed to a nurse's request for safe harbor, the committee is to report to a patient safety committee.

(13) Texas Occupations Code (TOC): One part of the Texas Statutes, or laws. The Nursing Practice Act (NPA) and Nursing Peer Review (NPR law) statutes are but a few of the chapters of Texas laws contained within the TOC.

(14) Whistleblower Protections: Protections available to a nurse that prohibit retaliatory action by an employer or other entity for:

(A) a request made by a nurse under Nursing Peer Review (TOC) §303.005(c) regarding invoking safe harbor protections, or

(B) under the NPA (TOC) §301.352 regarding a nurse's refusal to engage in an act or omission relating to patient care that would constitute grounds for reporting the nurse to the board, that constitutes a minor incident, or that violates the NPA or board rules; or

(C) a report made by a nurse under NPA (TOC) §301.4025 (related to patient safety concerns) and subsection (k) of this section, that may also be protected under other laws or regulations, concerning unsafe practitioners or unsafe patient care practices or conditions. Protection from retaliatory action applies to any report made to a licensing agency, accrediting body, regulatory entity, or administrative personnel within the facility or organization that the nurse believes has the power to take corrective action.

(b) Purpose. The purpose of this rule is to define minimum due process to which a nurse is entitled under safe harbor peer review; to provide guidance to facilities, agencies, employers of nurses, or anyone who utilizes the services of nurses in the development and application of peer review plans; to assure that nurses have knowledge of the plan as well as their right to invoke Safe Harbor; and to provide guidance to the peer review committee in its fact finding process.

(c) Applicability of Safe Harbor Peer Review:

(1) Nursing Peer Review (TOC) §303.0015 requires a person who regularly employs, hires or contracts for the services of ten (10) or more nurses to permit a nurse to request Safe Harbor 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 peer review is required to comply with the requirements of this rule.

(d) Invoking Safe Harbor.

(1) Safe Harbor must be invoked prior to or at the time the assignment is made or conduct requested. This includes changes in initial practice situation, assignments, or patient acuities that adversely impact the conduct or assignment requested of the nurse such that a nurse believes in good faith that his/her duty to the patient would be violated. This change may occur at any time.

(2) At the time the nurse is requested to engage in the conduct or assignment, or refuses to engage in the requested conduct or assignment, he/she must notify in writing the supervisor requesting the conduct or assignment that the nurse is invoking Safe Harbor. The content of this notification must at least meet the requirements for an initial written request set out in paragraph (3) of this subsection. Full detailed documentation of the Safe Harbor request that complies with paragraph (4) of this subsection must be completed before the end of the work period.

(3) An initial written notification or request for Safe Harbor must include:

(A) the nurse’s name making the safe harbor request and his/her signature(s);

(B) the date and time of the request;

(C) location of where the conduct or assignment is to be completed;

(D) name of the person requesting the conduct or making the assignment;

Deleted: protections

Deleted: ,

Deleted: ,

Deleted: Safe Harbor must be invoked prior to or at the time the assignment is made or conduct requested. This includes changes in initial practice situation, assignments, or patient acuities that adversely impact the conduct or assignment requested of the nurse such that a nurse believes in good faith that his/her duty to the patient would be violated. This change may occur at any time.

Comment [JAS14]: This information was repeated 4 times in §217.20. Seemed like the information is appropriately placed here and in section (e)(1)(B), and should be deleted from sections (a)(12) (now re-labeled as a11) and (b).

Deleted: Detailed

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(E) a brief explanation of why safe harbor is being requested.

(4) The detailed written account must include at a minimum:

(A) the conduct assigned or requested, including the name and title of the person making the assignment or request;

(B) a description of the practice setting (e.g., the nurse's responsibilities, resources available, extenuating or contributing circumstances impacting the situation);

(C) 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. If a nurse refuses to engage in the requested conduct or assignment, the nurse must document the existence of a rationale listed under subsection (g) of this section.

(D) 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

(E) the nurse's name, title, and relationship to the supervisor making the assignment or request.

(5) If the nurse does not submit the initial request for Safe Harbor using the form on the board web site, the facility and nurse shall adhere to the Safe Harbor process as outlined on the board's form.

(6) The nurse invoking Safe Harbor is responsible for keeping a copy of the request for Safe Harbor.

(7) A nurse may invoke Safe Harbor to question the medical reasonableness of a physician's order in accordance with Nursing Peer Review (TOC) §303.005(e). 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 Nursing Peer Review (TOC) §303.005(c), the nurse shall:

(A) invoke Safe Harbor in good faith.

(B) notify the supervisor that the nurse intends to invoke Safe Harbor in accordance with subsection (d) of this section. This must be done before accepting or refusing the assignment At the time the nurse is requested to engage in the conduct or assignment. This includes changes in initial practice situation, assignments, or patient acuities that adversely impact the conduct or assignment requested of the nurse such that a nurse believes in good faith that his/her duty to the patient would be violated. This change may occur at any time.

(2) A nurse may not be suspended, terminated, or otherwise disciplined 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. A violation of this subsection or Nursing Peer Review (TOC) §303.005(h) is subject to NPA (TOC) §301.413.

(3) A nurse's protections from licensure action by the board for a good faith safe harbor request remain in place until 48 hours after the nurse is advised of the peer review committee's determination. This time limitation does not apply to the nurse's protections from retaliation under TOC §303.005(h). Safe Harbor protections also do not apply to any civil action that may result from the nurse's practice.

(f) Exclusions to Safe Harbor Protections.

(1) The protections provided under subsection (e) of this section do not apply to the nurse who invokes Safe Harbor in bad faith, or engages in activity unrelated to the reason for the request for Safe Harbor or that constitutes reportable conduct of a nurse.

(2) In addition to consideration of the nurse's request for Safe Harbor, the safe harbor peer review committee may consider whether an exclusion to Safe Harbor peer review applies, and evaluate whether a nurse has

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26

engaged in reportable conduct provided such review is conducted in accordance with the requirements of §217.19 (incident-based peer review) of this title.

(3) If the safe harbor peer review committee determines that a nurse's conduct was not related to the nurse's request for Safe Harbor and would otherwise be reportable to the Board, the committee shall report the nurse to the Board as required in NPA (TOC) §301.403.

(g) Nurse's Decision to Accept or Refuse Assignment When Invoking Safe Harbor and While Awaiting Determination of Safe Harbor Peer Review Committee. A nurse invoking safe harbor may engage in the requested conduct or assignment while awaiting peer review determination unless the conduct or assignment is one in which:

(1) 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; or

(2) the requested conduct or assignment would constitute unprofessional conduct and/or criminal conduct.

(h) Minimum Due Process.

(1) A person or entity required to comply with Nursing Peer Review (TOC) §303.005(i) shall adopt and implement a policy to inform nurses of their right to request a nursing peer review committee determination (Safe Harbor Peer Review) and the procedure for making a request.

(2) In order to meet the minimum due process required by Nursing Peer Review (TOC) chapter 303, the nursing peer review committee shall comply with the membership and voting requirements as set forth in TOC §303.003(a) - (d);

(3) The peer review committee shall exclude from the committee membership, any persons or person with administrative authority for personnel decisions directly affecting the nurse.

(4) Attendance at the safe harbor peer review hearing by a CNO or other persons with administrative authority over the nurse, including the individual who requested the conduct or made the assignment, is limited to appearing before the safe harbor peer review committee to speak as a fact witness.

(5) The nurse requesting safe harbor shall be permitted to:

(A) appear before the committee;

(B) ask questions and respond to questions of the committee; and

(C) 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 Processes.

(1) The following timelines shall be followed:

(A) the safe harbor peer review committee shall complete its review and notify the CNO within 14 calendar days of when the nurse requested Safe Harbor;

(B) within 48 hours of receiving the committee's determination, the CNO 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.

(2) The CNO 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 peer review is implemented and conducted in compliance with the Nursing Practice Act (TOC ch. 301) and Nursing Peer Review (TOC ch 303).

(3) Texas Occupations Code chapter 303 (Nursing Peer Review) requires that peer review be conducted in good faith. A nurse who knowingly participates in peer review in bad faith is subject to disciplinary action by the Board under the Texas Occupations Code §301.452(b).

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(4) The peer review committee and participants shall comply with the confidentiality requirement of Nursing Peer Review (TOC) §303.006 and §303.007 relating to confidentiality and limited disclosure of peer review information.

(5) If the CNO in good faith disagrees with the decision of the peer review committee, the rationale for disagreeing must be recorded and retained with the peer review records.

(A) If the CNO believes the peer review was conducted in bad faith, she/he has a duty to report the nurses involved under NPA (TOC) §301.402 and §217.11(1)(K) of this title.

(B) If a nurse requests a safe harbor peer review determination under Nursing Peer Review (TOC) §303.005(b), and refuses to engage in the requested conduct or assignment pending the review, the determination of the safe harbor 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. The determinations of the committee are not binding if the CNO believes in good faith that the committee incorrectly determined a nurse's duty; however, this does not affect protections provided for the nurse under Nursing Peer Review (TOC) §303.005(c) or NPA (TOC) §301.352.

(j) Use of Informal Work Group In Safe Harbor 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:

(A) be informed how the workgroup will function and that the nurse does not waive any right to peer review by accepting or rejecting the use of an workgroup, and

(B) consent, in writing, to the use of an workgroup.

(2) the workgroup to comply with the membership and voting requirements of subsection (h) of this section;

(3) the nurse be provided the opportunity to meet with the workgroup;

(4) the right of the nurse to reject any decision of the workgroup and have the safe harbor peer review committee determine if the requested conduct or assignment violates the nurse's duty to the patient(s), in which event members of the workgroup shall not participate in that determination;

(5) ratification by the peer review chair person of any decision made by the workgroup. If the chair person disagrees with a determination of the workgroup, the chair person shall convene the full peer review committee to review the conduct in question; and

(6) the peer review chair person must communicate any decision of the work group to the CNO.

(k) Reporting Conduct of other Practitioners or Entities/Whistleblower Protections.

(1) This section does not expand the authority of any safe harbor 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 §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

Deleted: (nurse administrator)

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Comment [JAS15]: This section should be identical, in wording and format, to the similar section in §217.19 (e), as much as possible.

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Comment [JAS16]: This section should be identical, in wording and format, as much as possible, to the similar section in §217.19 (m).

28

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 or discriminate against, a person who reports, without malice, under this section. A violation of this subsection is subject to NPA (TOC) §301.413.

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DELIVERED VIA EMAIL TO:joy.sparks@bon.state.tx.us

December 3, 2007

Joy SparksAssistant General CounselTexas Board of Nursing333 Guadalupe, Ste 3-460Austin, Texas 78701

Re: Proposed Rules 217.19 (Incident-Based Nursing Peer Review) and 217.20 (Safe HarborNursing Peer Review); 32 Tex Reg 7845 (11/2/2007)

Dear Ms. Sparks:

The Texas Nurses Association (TNA) submits the following comments on the board’sproposed Rules 217.19 (Incident-Based Nursing Peer Review) and 217.20 (Safe HarborNursing Peer Review) as published in the Texas Register at 32 Tex Reg 7845. Before settingout its comments, TNA would like to acknowledge the work done by BON staff and theNPAC. Because of the extensive effort done by the committee and staff in preparing theproposed rules, TNA has had the luxury of being able to focus its attention on fine tuning ofthe proposed wording.

TNA’s comments are divided between Rule 217.19 (Part I) and Rule 217.20 (Part II)and under each rule into three categories:

1. Comments recommending substantive changes.2. Comments recommending changes that while editorial are significant enough to have

substantive implications.3. Comments suggesting changes that are purely editorial. These editorial only comments

are offered simply for the BON staff to consider as it drafts the final rules. They are notintended as substantive comments on the rule.

Because TNA is recommending more changes of a substantive nature to Rule 217.20 (SafeHarbor Nursing Peer Review), the comments on that rule will be addressed first.

7600 BURNET RD. STE. 440, AUSTIN, TX 78757 PH. 512.452.0645 FAX 512.452.0648 WWW.TEXASNURSES.ORGTHE PROFESSIONAL ASSOCIATION OF REGISTERED NURSES

Texas Affiliate of the American Nurses Association

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I. Rule 217.20 (SAFE HARBOR NURSING PEER REVIEW)

A. Comments Recommending Substantive Changes

1. Nurse’s Engaging in Conduct Awaiting Nursing Peer Review

Safe Harbor Nursing Peer Review was designed to addresssituations in which a nurse and nurse supervisor have a good faith disagreementabout what is a nurse’s duty to a patient in a specific situation. Safe Harbor provides amechanism to resolve such disagreements without putting the nurse at risk of adverseconsequences from either the facility or the BON and also for minimizing the risk topatients pending resolution of the disagreement. TNA believes that normally it is inthe best interest of the patient and also the nurse for the nurse to engage in theconduct or assignment awaiting nursing peer review. In fact, the nurse’s not engagingin the conduct or assignment implies that either the nurse or the supervisor is notacting in good faith. The nurse also loses some of her/his Safe Harbor protections ifshe/he refuses to engage in the conduct or assignment. While patient safety is morelikely to be better promoted by the nurse’s engaging in the conduct or assignment,there are exceptional situations in which this is not the case. For example, the requestinvolves the nurse falsifying a patient record or the nurse is requested to accept anassignment for which the nurse is so lacking in the needed skills and knowledge thatpatients would be put at risk of harm.

TNA believes it is very important that Rule 217.20 be carefullyworded so that it conveys the message to the nurse that normally it is in the patient’sand the nurse’s best interests to engage in the requested conduct or assignmentawaiting the nursing peer review committee’s determination of the nurse’s duty to thepatient. This issue is addressed in Subsection (g) of proposed Rule 217.20, and TNAis concerned the proposed wording of Subsection (g) may not adequately convey thismessage.

TNA recommended wording for Subsection (g) is set out in Exhibit1A. TNA is recommending that the subsection be expanded 1) to describe the effecton the nurse’s safe harbor protections when a nurse does not engage in the requestedconduct or assignment and 2) to repeat language currently found in proposedSubsection (d)(4)(C) relating to the nurse’s documenting her/his rationale for notengaging in the conduct or assignment.

2. Process for Invoking Safe Harbor Nursing Peer Review

A nurse’s Safe Harbor protections do not apply until the nursetimely and appropriately invokes Safe Harbor. TNA believes it important that Rule217.20 makes the process for invoking Safe Harbor as explicit as possible.Subsection (d) of proposed Rule 217.20 addresses the process to be used by a nurseto invoke Safe Harbor. While TNA is recommending a fairly extensive rewording ofthis subsection, the changes are intended to clarify the steps in the process ratherthan change the process itself. TNA’s recommended changes to Subsection (d) andrelated provisions are set out in Exhibit 1B. These changes include:

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1. Making more explicit that Safe Harbor must be invoked prior to engagingin the requested conduct or assignment and that the Safe Harborprotections apply only to conduct subsequent to the request.

2. Adding a definition of the term “assignment” that makes clear that a newassignment occurs when there are changes in the clinical situation inwhich an assignment is made and making more explicit that Safe Harborcan be requested whenever such a new assignment occurs.

3. Identifying more clearly that the nurse always has the option of using theBON-developed Safe Harbor Request Form to make either the initialrequest for Safe Harbor or to make the end of work period report whenthe short initial request form is used.

4. Identifying more clearly that the Detailed Account Form to be used tomake the end of the work period report when short initial request form isused can also be used to make the initial request for Safe Harbor

5. Identifying more explicitly that BON-developed form includes a processfor nurse and facility to follow once Safe Harbor has been invoked.

3. Application of Good Faith, Bad Faith and Malice Standards

Proposed Rule 217.20 defines “good faith” based on the definitionof “good faith” in §303.005(A-1) of the Nursing Peer Review Law. It then defines “badfaith” as the converse or opposite of “good faith.” Malice is included in the definitionsof “good” and “bad faith” but is not defined.

“Good” and “bad faith” and “malice” are terms for setting thestandard to be used for determining if someone is to be held liable for certainactivities. The issue of whether good faith, bad faith or malice should be standard withrespect to questions of liability is addressed in the following places in NPA and NPRLaw.

1. What should standard be for determining if individuals or entities should be affordedimmunity from civil liability for making reports to the BON or other entities (e.g.,reporting a nurse to the BON)

2. What should standard be for determining if Nursing Peer Review Committee andcommittee members should be afforded immunity from civil liability (e.g., protectedfrom being sued for slander by the nurse being reviewed)

3. What should standard be for determining if NPR committee and committee membersshould be afforded immunity from licensure liability (e.g., disciplinary action by theBON for inappropriately conducting of NPR)

4. What should standard be for nurses to get protections from retaliation under SafeHarbor NPR.

5. What should standard be for nurse administrator CNO to be able not to accept NPRdetermination when Safe Harbor NPR has been requested

By way of background for issue, I did a word find of the NPA and NPR Law foroccurrences of “good faith,” bad faith” and “malice” with following results:

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NPA:“good faith” - §301.413(a), (b), and (g)(B) – all are references to making a

“good faith request” for safe harbor under NPR Law.Section 301.413 is the NPA section addressing a nurse’sremedies if retaliated against for making a report, raisinga patient care concern or for requesting safe harbor.

“bad faith” - §301.413(a) refers to nurse right to file a counterclaim ifsomeone files a frivolous lawsuit in bad faith against thenurse making a report.

“malice” - §301.402(f), 301.4025(c), 301.412 and 301.413(b), (g)(A) –all refer to a nurse’s protections from civil liability orretaliation for making a report as long as makes reportwithout malice.

NPR Law:“good faith” – §303.005(a-1), (c), (d), (h) – (a-1) defines “good faith for

purposes of nurse requesting safe harbor or CNO notaccepting NPR determination; all the other sectionsrelate to the nurse making the safe harbor request or theCNO not accepting NPR determination in good faith.

“bad faith” - §303.006(f)(2) – authorizes committee member to report toBON independently of NPR committee if believescommittee acted in bad faith.

§303.009(a) - refers to NPR committee and committeemembers right to file a counterclaim if someone files afrivolous lawsuit in bad faith against the nurse becauseserved on NPR.

“malice” - §303.010(a), (b) – refers to civil liability protections for NPRcommittee and members as long as act without malice.

In summary, “acting in good faith” is the primary standard used in the NPR Law inrelationship to Safe Harbor protections. “Acting without malice” is the standard used in theNPA and NPR Law in relationship to persons having immunity from liability for makingmandatory reports to the BON or for participating in nursing peer review. “Acting in bad faith”is not used as a primary standard.

Proposed Rule 217.20 sometimes uses “bad faith” as a standard wherethe NPA or NPR Law uses malice. Since “bad faith” is defined in the proposed rule withoutspecifying any mental element, using it as a substitute for malice may be inconsistent withthe NPA and NPR Law. TNA also believes that even when used appropriately as a standardof civil or licensure liability that it should include some mental element. This is consistentwith language in proposed Subsection (i)(3) that bases licensure liability on a nurse’s“knowingly participating in peer review in bad faith.”

TNA recommends that 1) the definition of “bad faith” be redefined inProposed Rule 217.20 to require “knowing or reckless” conduct, 2) a definition of “bad faith”be added and 3) the “acting without malice” standard be used whenever referring tosomeone incurring civil liability for making a required or permitted report or for participating inNursing Peer Review. TNA’s proposed rewording to reflect these recommendations is setout in Exhibit 1C.

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4. Safe Harbor Protections and Exclusions from Protections

Subsections (e) and (f) of proposed Rule 217.20 address Safe Harborprotections afforded the nurse and exclusions to those protections. While referencing theprotections afforded the nurse under §303.005 of the Nursing Peer Review Law, Subsection(e) does not explicitly set out all of those protections. TNA recommends that the protectionsbe specifically set out. Subsection (f) addresses exclusions to the protections and includesas an exception that the nurse engages in reportable conduct while awaiting thedetermination of the nurse’s Safe Harbor request by the Nursing Peer Review Committee.TNA believes that use of “reportable conduct” without any qualification is too broad, becausethe purpose of Safe Harbor is to determine if the requested conduct or assignment violatesthe nurse’s duty to the patient. If the peer review committee determines it does, the nursetechnically will have engaged in reportable conduct if engaged in the requested conduct orassignment awaiting the committee’s determination. TNA believes this is inconsistent withthe intent of Safe Harbor Nursing Peer Review and renders its protection against licensureliability practically meaningless. TNA recommends that “reportable conduct” be qualified tobe “reportable conduct unrelated to the reason for the Safe Harbor request.” TNA’srecommended rewording of Subsections (e) and (f) are set out in Exhibit 1D.

B. Comments Recommending Changes That While Editorial Are SignificantEnough To Have Substantive Implications

TNA’s recommended wording to reflect the three recommendations discussedbelow is set out in Exhibit 2.

1. Definition of Safe Harbor NPR Subsection (a)(13) defines “Safe Harbor Nursing Peer Review” in terms

of requested conduct or assignment “endangering a patient.” TNA believes this is toorestrictive since some requests for Safe Harbor do not involve endangering a patient, e.g.,request to falsify a record. TNA recommends deleting the “endangering patient” qualifier.

2. Applicability of SHNPR Subsection (c) relating to applicability of Safe Harbor Nursing Peer

Review does not include qualifier in §303.0015 that a facility, agency or entity with ten aremore nurses is required to have nursing peer review for RNs only if five of the of ten nursesare RNs.

3. Safe Harbor Processes

TNA recommends that Subsection (i)(5)(B) [relating to Safe HarborProcesses] more explicitly state that a CNO’s or nurse administrator’s decision not to abideby a Safe Harbor Nursing Peer Review Committee’s determination as to a nurse’s duty doesnot invalidate that determination. The committee’s determination of the nurse’s duty hassignificant implications for the nurse. For example, the nurse definitely should not continue toengage in the conduct (beyond the 48 hours) because now a nursing peer review committeehas agreed with the nurse that the conduct violates the nurse’s duty to patient. TNArecommends that Subsection (i)(5)(B) specifically state that the CNO’s or nurseadministrator’s decision “does not invalidate the committee’s determination as to the nurse’sduty to a patient.”

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C. Comments Suggesting Changes That Are Only Editorial

TNA is suggesting a significant number of editorial changes. While TNAbelieves these changes will improve the readability and understandability of proposed Rule217.20, these comments are offered simply for the BON to consider as it drafts the finalrules. They are not intended as substantive comments on the rule. The suggested editorialchanges to Rule 217.20 are set out in Exhibit 3. To avoid repeating changes to subsectionsof Rule 217.20 to which TNA is recommending substantive changes, any editorial changes tothose sections are included in Exhibits 1 and 2 addressing substantive changes to thosesubsections.

TNA has identified the following areas in which it believes proposed Rule217.20 would benefit from greater consistency in formatting.

1. Capitalization of “Safe Harbor” and “Safe Harbor Nursing Peer Review.” TNAsuggests that be capitalized.

2. Use of “Peer Review” or “Nursing Peer Review.” TNA suggests “Nursing PeerReview.”

3. Capitalization of initial word of lists in subdivisions and paragraphs.4. Use of periods and semi-colons – particularly in lists but also at other places

such as subsection titles.5. Terminology for internal references to other parts of rule and particularly how

subdivisions of the rule are referenced. For statutes, the Texas LegislativeCouncil uses section, subsection, subdivision, paragraph and subparagraph butthat may be helpful only to attorneys. Maybe could use “Subdivision(__)(__)(__).”

TNA believes other stylistic changes would also improve readability.

1. Format of citations to NPA and NPR Law. If there is a need to reference theTexas Occupation Code, TNA recommends format be “§301.001 of NPA (TOCch. 301).” TNA is not sure the TOC always has to be referenced since both“NPA” and “NPR Law” are defined terms.

2. Adding the qualifier “under this section” when referencing to other subsections isunnecessary and affects readability. In legislative drafting, any reference to asubsection is considered to refer to a subsection within the same section.

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II. RULE 217.19 (INCIDENT-BASED NURSING PEER REVIEW)

A. Comments Recommending Substantive Changes

1. Application Of Good Faith, Bad Faith, Malice Standard.

TNA’s recommended changes are set out in Exhibit 4A. See discussionof this issue under section on recommended substantive changes to Rule 217.20.

2. Addressing Nurse Whose Practice Is Impaired

Subsection (g) addresses the process to be followed when the practiceof a nurse reported to or being reviewed by a Nursing Peer Review Committee is identifiedas being or suspected of being impaired due to chemical dependency or mental illness.Subsection (f) provides that the peer review process is to be suspended and that the dueprocess requirements of Incident-Based Nursing Peer Review do not continue to apply. TNAis recommending substantial rewording of Subsections (f) and (g) to make clearer and toreflect the BON’s proposed changes to Rule 217.13 addressing how board-approved peerassistance programs must handle third-party referrals with or without a practice violation.

TNA’s recommended rewording of Subsections (f) and (g) is set out inExhibit 4B.

3. Confidentiality

TNA recommends that before the Nursing Peer Review Committeenotifies a nurse who reported to Nursing Peer Review in lieu of reporting to the BON of thecommittee’s determination that the reporting nurse be required to agree in writing not todisclose the determination or any other peer review information except as authorized by theNursing Peer Review Law. As proposed, Subsection (j) only states the nurse is subject tothe confidentiality requirements of the NPR Law. The nurse is not required to agree to doingso.

TNA’s recommended rewording to require a nurse to agree in writing tomaintaining confidentiality is set out in Exhibit 4C

B. Comments Recommending Changes That While Editorial Are ExtensiveEnough To Have Substantive Implications

None of TNA’s comments on Rule 217.19 fall into this category.

C. Comments Suggesting Changes That Are Only Editorial

TNA’s recommended changes are set out in Exhibit 5. See discussionof editorial changes under section on suggested editorial changes to Rule 217.20.

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III. CONCLUSION

TNA appreciates the opportunity to submit these comments on the proposed rules andis available to answer any questions you may have. TNA would again express itsappreciation to the BON staff and its Nursing Practice Advisory Committee for their diligenceand hard work in extensively revising current Rules 217.19 and 217.20 to improve both theIncident-Based Nursing Peer Review and the Safe Harbor Nursing Peer Review processes.

Respectfully submitted,

James H. Willmann, JDGeneral Counsel and Director Governmental Affairs

Attachments:Exhibits 1-5 emailed as separate attachments

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EXHIBITS 1A – 1ETNA’S RECOMMEND SUBSTANTIVE CHANGES TO RULE §217.20

PageExhibit 1A - Engaging In Conduct Awaiting Nursing Peer Review Determination.............................. 1Exhibit 1B - Invoking Safe Harbor Nursing Peer Review....................................................................... 4Exhibit 1C – Application Of Good Faith. Bad Faith, Malice Standard................................................. 10Exhibit 1D – Safe Harbor Protections and Exclusions........................................................................ 12

EXHIBIT 1AENGAGING IN CONDUCT AWAITING NURSING PEER REVIEW DETERMINATION

[Changes to Subsection (g) of Proposed Rule]

TNA RECOMMENDED CHANGES WITH CHANGES SHOWN

EXPLANATORY COMMENTS FINALWITH CHANGES NOT SHOWN

(g) Nurse's Decision to Accept orRefuse Assignment When Invoking SafeHarbor and Whether to Engage in Conduct orAssignment While Awaiting Determination ofSafe HarborNursing Peer Review Committee.

(1) A nurse invoking safe harbormay engage in the requested conduct orassignment while awaiting peer reviewdetermination unless the conduct or assignment isone in which:

(1A) the nurse lacks thebasic knowledge, skills, and abilities that would be

It is important Subsection (g) be carefully wordedso that sends the correct message to the nurse. TNA believes that message should be thatnormally it is in the best interest of the patient andalso the nurse for the nurse to engage in theconduct awaiting nursing peer review. Patientsafety is more likely to be better promoted butthere are exceptional situations in which this is notthe case (e.g., a request to falsify a chart). Thenurse also loses some of the safe harborprotections if refuses to engages in the conduct orassignment. TNA is concerned the proposedwording may not adequately convey thismessage.

Change in heading is editorial only

Renumbering is a conforming change to reflectaddition of Subsecs. (2) and (3)

(g) Nurse's Decision Whether toEngage in Conduct or Assignment WhileAwaiting Determination of Nursing PeerReview.

(1) A nurse invoking safe harbormay engage in the requested conduct orassignment while awaiting peer reviewdetermination unless the conduct or assignment isone in which:

(A) the nurse lacks the

2

necessary to render the care or engage in theconduct requested or assigned at a minimallycompetent level so patients are not exposed to anunjustifiable risk of harm; or

(2B) the requestedconduct or assignment would constituteunprofessional conduct and/or criminal conduct ora serious violation of Unprofessional ConductRule 217.12 involving intentional or unethicalconduct such as fraud, theft, patient abuse orexploitation.

(2) The Safe Harbor protections

provided a nurse under §303.005(c) of the NPRLaw (TOC ch. 303) are affected by whether thenurse engages in the conduct or assignmentawaiting the peer review determination:

(A) If a nurse engages inthe conduct or assignment, the protections apply ifthe nurse is acting on a good faith belief thatengaging in the conduct or assignment awaitingpeer review determination is permitted bySubdivision (1) even if the belief is determinedlater to be incorrect.

(B) If a nurse does notengage in the conduct or assignment, the nursemay not have all the protections provided by§303.005(c) of the NPR Law (TOC ch. 303).

(i) The protectionprovided by §303.005(c)(4) that a nurse may notbe disciplined by the Board for engaging in therequested conduct or assignment awaiting nursingpeer review is not applicable if the nurse refusesto engage in the conduct or assignment.

(ii) If a nurserefuses to engage in the requested conduct orassignment pending the safe harbor peer review,the determination of the safe harbor peer reviewcommittee shall be considered in any decision bythe nurse's employer to discipline the nurse for therefusal to engage in the requested conduct. Thedeterminations of the safe harbor peer reviewcommittee are not binding if the CNO or nurseadministrator believes in good faith that the safe

This change to (A) is editorial only.

The reference to “unprofessional conduct” withoutqualification may be too broad since BONUnprofessional Rule 217.12 includes conductsuch as accepting an unsafe assignment. Thesuggested new language is taken from BON MinorIncident Rule 217.16(c)((3).

This new Subsection (2) language attempts to putnurse on notice that decision to not engage inconduct may affect protections she/he has undersafe harbor.

This new Paragraph (ii) repeats languagecurrently set out at (i)(5) but it seems that shouldalso be set out here since addresses what mayhappen if nurse refuses to engage in conductawaiting NPR.

basic knowledge, skills, and abilities that would benecessary to render the care or engage in theconduct requested or assigned at a minimallycompetent level so patients are not exposed to anunjustifiable risk of harm; or

(B) the requestedconduct or assignment would constitute criminalconduct or a serious violation of UnprofessionalConduct Rule 217.12 involving intentional orunethical conduct such as fraud, theft, patientabuse or exploitation.

(2) The Safe Harbor protectionsprovided a nurse under §303.005(c) of the NPRLaw (TOC ch. 303) are affected by whether thenurse engages in the conduct or assignmentawaiting the peer review determination:

(A) If a nurse engages inthe conduct or assignment, the protections apply ifthe nurse is acting on a good faith belief thatengaging in the conduct or assignment awaitingpeer review determination is permitted bySubdivision (1) even if the belief is determinedlater to be incorrect.

(B) If a nurse does notengage in the conduct or assignment, the nursemay not have all the protections provided by§303.005(c) of the NPR Law (TOC ch. 303).

(i) The protectionprovided by §303.005(c)(4) that a nurse may notbe disciplined by the Board for engaging in therequested conduct or assignment awaiting nursingpeer review is not applicable if the nurse refusesto engage in the conduct or assignment.

(ii) If a nurserefuses to engage in the requested conduct orassignment pending the safe harbor peer review,the determination of the safe harbor peer reviewcommittee shall be considered in any decision bythe nurse's employer to discipline the nurse for therefusal to engage in the requested conduct. Thedeterminations of the safe harbor peer reviewcommittee are not binding if the CNO or nurse

3

harbor peer review committee incorrectlydetermined a nurse's duty. The CNO’s or nurseadministrator’s decision that the peer reviewcommittee’s determinations are not binding doesnot affect protections provided the nurse by§303.005(c)(1) of the Nursing Peer Review Law(TOC ch. 303) (relating to protection fromretaliation for requesting safe harbor) or §301.352of the NPA (TOC ch. 301) (relating to protectionsfor refusing to engage in conduct that violates theNPA or a Board rule).

(3) If the nurse does not engagein the requested conduct or assignment awaitingthe nursing peer review committee’sdetermination, the nurse must document her/hisrationale as part of the process of invoking SafeHarbor described in Subsection (d). The rationaleshould refer to one of the justifications describedin Subdivision (2).

Content is taken from Subsection (g)(4). TNAbelieves that would be beneficial to repeat herebecause of the importance of the nurse’s decision.

administrator believes in good faith that the safeharbor peer review committee incorrectlydetermined a nurse's duty. The CNO’s or nurseadministrator’s decision that the peer reviewcommittee’s determinations are not binding doesnot affect protections provided the nurse by§303.005(c)(1) of the Nursing Peer Review Law(TOC ch. 303) (relating to protection fromretaliation for requesting safe harbor) or §301.352of the NPA (TOC ch. 301) (relating to protectionsfor refusing to engage in conduct that violates theNPA or a Board rule).

(3) If the nurse does not engagein the requested conduct or assignment awaitingthe nursing peer review committee’sdetermination, the nurse must document her/hisrationale as part of the process of invoking SafeHarbor described in Subsection (d). The rationaleshould refer to one of the justifications describedin Subdivision (2).

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EXHIBIT 1BINVOKING SAFE HARBOR NURSING PEER REVIEW

[Changes to Subsections (a)(12), (b), (d), (e)(1) of Proposed Rule]TNA RECOMMENDED CHANGES

WITH CHANGES SHOWNEXPLANATORY COMMENTS FINAL

WITH CHANGES NOT SHOWN(a) Definitions.

(__) Assignment: Designatingresponsibility for the provision or supervision ofnursing care for an individual or group of patientsfor a defined period of time in a defined worksetting including the specified functions, duties, oramount of work designated as the individualnurse's responsibility. Changes in the clinicalsituation may occur due to volume, intensity,resource availability, or other variables. If thechanges in the clinical situation modify the level ofnursing care provided or level of supervisionrequired including the specified functions, duties,or amount of work designated in the originalassignment, the result is a new assignment.

(12) Safe Harbor: a A processallowing an individual to request in good faith areview of a situation, action, conduct, orassignment while being protected from retaliationand licensure liability. Safe Harbor must beinvoked prior to engaging in the conduct orassignment for which Safe Harbor is requested. orat the time the assignment is made or conductrequested. This includes changes in initial practicesituation, assignments, or patient acuities thatadversely impact the conduct or assignmentrequested of the nurse such that a nurse believesin good faith that his/her duty to the patient wouldbe violated. This change may occur at any time.

(b) Purpose. The purpose of this rule isto:

(1) to define the process forinvoking safe harbor to ;

(2) define minimum due processto which a nurse is entitled under safe harbor peerreview, to ;

(3) provide guidance to facilities,

This is a new definition designed to emphasizethat when clinical situation changes a newassignment result.

This is a conforming change to reflect similarchanges made to (d)(1), (d)(2) and (e)(1)(B). Therationale for change is set out at (d)(2) below.

Editorial Change. Formatting as a list may makeeasier to read. Setting out process for invoking Safe Harbor isimportant part of rule and should be listed as oneof the purposes.

(a) Definitions.

(__) Assignment: Designatingresponsibility for the provision or supervision ofnursing care for an individual or group of patientsfor a defined period of time in a defined worksetting including the specified functions, duties, oramount of work designated as the individualnurse's responsibility. Changes in the clinicalsituation may occur due to volume, intensity,resource availability, or other variables. If thechanges in the clinical situation modify the level ofnursing care provided or level of supervisionrequired including the specified functions, duties,or amount of work designated in the originalassignment, the result is a new assignment.

(12) Safe Harbor: A processallowing an individual to request in good faith areview of a situation, action, conduct, orassignment while being protected from retaliationand licensure liability. Safe Harbor must beinvoked prior to engaging in the conduct orassignment for which Safe Harbor is requested.

(b) Purpose. The purpose of this rule isto:

(1) define the process for invokingsafe harbor;

(2) define minimum due processto which a nurse is entitled under safe harbornursing peer review;

(3) provide guidance to facilities,agencies, employers of nurses, or anyone who

5

agencies, employers of nurses, or anyone whoutilizes the services of nurses in the developmentand application of peer review plans; to

(3) assure that nurses haveknowledge of the plan as well as their right toinvoke Safe Harbor, and to

(4) provide guidance to the peerreview committee in its fact finding processmakingits determination of the nurse’s duty to the patient.Safe Harbor must be invoked prior to or at thetime the assignment is made or conductrequested. This includes changes in initial practicesituation, assignments, or patient acuities thatadversely impact the conduct or assignmentrequested of the nurse such that a nurse believesin good faith that his/her duty to the patient wouldbe violated. This change may occur at any time.

(d) Invoking Safe Harbor. (1) Safe Harbor must be invoked

prior to engaging in the conduct or assignmentand at one of the following times:

A) when the conduct isrequested or assignment made;

B) when changes in theclinical situation or the nurse’s assessment of theassignment so modify the level of nursing carerequired, or the specified functions, duties, oramount of work originally assigned, that a newassignment occurs as defined by Subsec. (a)(__);or

C) when the nurserefuses to engage in the requested conduct orassignment; Safe Harbor must be invoked prior to or at the time the assignment is made or conductrequested. This includes changes in initial practicesituation, assignments, or patient acuities thatadversely impact the conduct or assignmentrequested of the nurse such that a nurse believesin good faith that his/her duty to the patient wouldbe violated. This change may occur at any time.

(2) At the time the nurse is

Primary role of Safe Harbor NPR is to determinenurse’s duty.

Deleted because doesn’t seem to fit well in thissubsection and is already repeated several otherplaces- (a)(12), (d)(1), (d)(2), (e)(1)(B)

Reformatted to make more explicit for nurse whenmust invoke safe harbor. Added “prior toengaging in conduct or assignment” in stem toreinforce that safe harbor protections do not applyto conduct prior to making request.

TNA is recommending adding a definition of“Assignment” so will need to add correctreference.

The changes to Subsections (2), (3) and (4) aredesigned to make the process for invoking safeharbor as explicit and understandable as possible.

utilizes the services of nurses in the developmentand application of peer review plans;

(4) assure that nurses haveknowledge of the plan as well as their right toinvoke Safe Harbor; and

(5) provide guidance to the peerreview committee in making its determination ofthe nurse’s duty to the patient.

(d) Invoking Safe Harbor. (1) Safe Harbor must be invoked

prior to engaging in the conduct or assignmentand at one of the following times:

A) when the conduct isrequested or assignment made;

B) when changes in theclinical situation or the nurse’s assessment of theassignment so modify the level of nursing carerequired, or the specified functions, duties, oramount of work originally assigned, that a newassignment occurs as defined by Subsec. (a)(__);or

C) when the nurserefuses to engage in the requested conduct orassignment;

6

requested to engage in the conduct orassignment, or refuses to engage in the requestedconduct or assignment, he/she The nurse mustnotify in writing the supervisor requesting theconduct or assignment, in writing, that the nurse isinvoking Safe Harbor. The content of thisnotification must at least meet the minimumrequirements for an initial written request setoutInitial Quick Request Form described inparagraph Paragraph (3) of this subsection. FullDetailed documentationA detailed written accountof the Safe Harbor request that complieswithmeets the minimum requirements for theDetailed Written Account described in paragraph(4) of this subsection must be completed beforeleaving the work setting at the end of the workperiod.

(3) An initial written notification orrequest for Safe Harbor must include: Initial QuickRequest Form

(A) This form may beused to invoke safe harbor and may be in anyformat as long as it is in writing and contains thefollowing information:

(A i) The thenurse(s) name making the safe harbor requestand his/her signature(s);

(B ii) The thedate and time of the request;

(C iii) the locationof where the conduct or assignment is to becompleted;

(D iv) Name thename of the person requesting the conduct ormaking the assignment;

(E v) A a briefexplanation of why safe harbor is being requested.

(B) If this form is used toinvoke safe harbor, the nurse must complete theDetailed Written Account described in Subdivision(4) as a supplemental report before leaving thework setting at the end of the work period.

(4) Detailed Written AccountThe

The changes to Subsections (2), (3) and (4) aredesigned to make the process for invoking safeharbor as explicit and understandable as possible.

The changes to Subsections (2), (3) and (4) aredesigned to make the process for invoking safeharbor as explicit and understandable as possible.

(2) The nurse must notify thesupervisor requesting the conduct or assignment,in writing, that the nurse is invoking Safe Harbor.The content of this notification must meet theminimum requirements for an Initial QuickRequest Form described in Paragraph (3). Adetailed written account of the Safe Harborrequest that meets the minimum requirements forthe Detailed Written Account described inparagraph (4) must be completed before leavingthe work setting at the end of the work period.

(3) Initial Quick Request Form (A) This form may be

used to invoke safe harbor and may be in anyformat as long as it is in writing and contains thefollowing information:

(i) the nurse(s)name and signature(s);

(ii) the date andtime of the request;

(iii) the locationof where the conduct or assignment is to becompleted;

(iv) the name ofthe person requesting the conduct or making theassignment;

(v) a briefexplanation of why safe harbor is beingrequested.

(B) If this form is used toinvoke safe harbor, the nurse must complete theDetailed Written Account described in Subdivision(4) as a supplemental report before leaving thework setting at the end of the work period.

7

detailed written account must include at aminimum:

(A) This form may beused to invoke safe harbor or to make the reportrequired at the end of the work period underSubdivision (2)(B) to supplement the Initial QuickRequest Form. It may be in any format as long asit is in writing and includes the followinginformation:

(A i) the conductassigned or requested, including the name andtitle of the person making the assignment orrequest;

(B ii) adescription of the practice setting (e.g., the nurse'sresponsibilities, resources available, extenuatingor contributing circumstances impacting thesituation);

(C iii) a detaileddescription of how the requested conduct orassignment would have violated the nurse's dutyto a patient or any other provision of the NPA andBoard Rules. If possible, reference the specificstandard (§217.11 of this title) or other section ofthe NPA and/or Board rules the nurse believeswould have been violated.

(iv) If a nurserefuses to engage in the requested conduct orassignment, the nurse must document theexistence of a rationale listed under subsection (g)of this section. If applicable, the rationale for thenurse’s not engaging in the requested conduct orassignment awaiting the nursing peer reviewcommittee’s determination as to the nurse’s duty.The rationale should refer to one of thejustifications described in Subsection (g)(2) for notengaging in the conduct or assignment awaiting apeer review determination.

(D v) any othercopies of pertinent documentation available at thetime. Additional documents may be submitted tothe committee when available at a later time; and

(E vi) the nurse'sname, title, and relationship to the supervisormaking the assignment or request.

Is an important requirement and making aseparate paragraph gives emphasis.

The nurse can always use the BON form torequest safe harbor.

Makes explicit that BON form includes a processfor nurse and facility to follow.

Added so that have a subdivision on BON formthat parallels Subdivisions ((3) and (4) on InitialRequest Form and Detailed Written Account.

(4) Detailed Written Account (A) This form may be

used to invoke safe harbor or to make the reportrequired at the end of the work period underSubdivision (2)(B) to supplement the Initial QuickRequest Form. It may be in any format as long asit is in writing and includes the followinginformation:

(i) the conductassigned or requested, including the name andtitle of the person making the assignment orrequest;

(ii) a descriptionof the practice setting (e.g., the nurse'sresponsibilities, resources available, extenuatingor contributing circumstances impacting thesituation);

(iii) a detaileddescription of how the requested conduct orassignment would have violated the nurse's dutyto a patient or any other provision of the NPA andBoard Rules. If possible, reference the specificstandard (§217.11 of this title) or other section ofthe NPA and/or Board rules the nurse believeswould have been violated.

(iv) If applicable,the rationale for the nurse’s not engaging in therequested conduct or assignment awaiting thenursing peer review committee’s determination asto the nurse’s duty. The rationale should refer toone of the justifications described in Subsection(g)(2) for not engaging in the conduct orassignment awaiting a peer review determination.

(v) any othercopies of pertinent documentation available at thetime. Additional documents may be submitted tothe committee when available at a later time; and

(vi) the nurse'sname, title, and relationship to the supervisormaking the assignment or request.

8

(B) If this form is used toinvoke safe harbor or to make the report requiredat the end of the work period under Paragraph(2)(B) to supplement the Initial Quick RequestForm, the facility and nurse must follow the SafeHarbor process as outlined in the BONComprehensive Request Form described inSubdivision (4).

(5) BON Comprehensive RequestForm

(A) The BONComprehensive Request Form is a board-developed form that can be found on the BON’swebsite www.bon.state.tx.us. It includes aprocess for the nurse and facility to follow oncethe request for safe harbor has been made.

(B) This form may beused to invoke safe harbor or to make the reportrequired at the end of the work period underParagraph (2)(B) to supplement the Initial QuickRequest Form.

(5 6) If the nurse does not use theBON Comprehensive Request Form described inSubdivision (5) to invoke safe harbor submit theinitial request for Safe Harbor using the form onthe board web siteor to make the report requiredat the end of the work period under Paragraph(2)(B) to supplement the Initial Quick RequestForm, the facility and nurse shall adhere tomustfollow the Safe Harbor process as outlined on inthis the board's form.

(6 7) The nurse invoking SafeHarbor is responsible for keeping a copy of therequest for Safe Harbor.

(7 8) A nurse may invoke SafeHarbor to question the medical reasonableness ofa physician's order in accordance with NursingPeer Review Law (TOC) §303.005(e). In thissituation, the medical staff or medical directorshall determine whether the order wasreasonable.

Rewording only to make conform to other changes

Conforming change to reflect changes made toSubsection (d)

(B) If this form is used toinvoke safe harbor or to make the report requiredat the end of the work period under Paragraph(2)(B) to supplement the Initial Quick RequestForm, the facility and nurse must follow the SafeHarbor process as outlined in the BONComprehensive Request Form described inSubdivision (4).

(5) BON Comprehensive RequestForm

(A) The BONComprehensive Request Form is a board-developed form that can be found on the BON’swebsite www.bon.state.tx.us. It includes aprocess for the nurse and facility to follow oncethe request for safe harbor has been made.

(B) This form may beused to invoke safe harbor or to make the reportrequired at the end of the work period underParagraph (2)(B) to supplement the Initial QuickRequest Form.

( 6) If the nurse does not use theBON Comprehensive Request Form described inSubdivision (5) to invoke safe harbor or to makethe report required at the end of the work periodunder Paragraph (2)(B) to supplement the InitialQuick Request Form, the facility and nurse mustfollow the Safe Harbor process as outlined in thisform.

( 7) The nurse invoking SafeHarbor is responsible for keeping a copy of therequest for Safe Harbor.

( 8) A nurse may invoke SafeHarbor to question the medical reasonableness ofa physician's order in accordance with NursingPeer Review Law (TOC) §303.005(e). In thissituation, the medical staff or medical directorshall determine whether the order wasreasonable.

9

(e) Safe Harbor Protections. (1) To activate protections

outlined in Nursing Peer Review (TOC)§303.005(c) as set out in Subsection (2), thenurse shall:

(A) Invoke Safe Harbor ingood faith.

(B) Notify the supervisorin writing that she/he At the time the nurse isrequested to engage in the conduct orassignment, notify the supervisor that the nurseintends to invoke Safe Harbor in accordance withsubsection (d) of this section. This must be doneprior to engaging in the conduct or assignment forwhich safe harbor is requested and at one of thefollowing times:

i) when theconduct is requested or assignment made;

ii) when changesin the clinical situation or the nurse’s assessmentof the assignment so modify the level of nursingcare required or the specified functions, duties, oramount of work originally assigned that a newassignment occurs as defined by Subsec. (a)(__);or

iii) when thenurse refuses to engage in the requested conductor assignment. . before accepting or refusing the assignment.This includes changes in initial practice situation,assignments, or patient acuities that adverselyimpact the conduct or assignment requested ofthe nurse such that a nurse believes in good faiththat his/her duty to the patient would be violated.This change may occur at any time.

(2) _________ [Changes to (2)are addressed in Exhibit 1D]

(e) Safe Harbor Protections. (1) To activate protections

outlined in Nursing Peer Review (TOC)§303.005(c) as set out in Subsection (2), thenurse shall:

(A) Invoke Safe Harbor ingood faith.

(B) Notify the supervisorin writing that she/he intends to invoke SafeHarbor in accordance with subsection (d) of thissection. This must be done prior to engaging inthe conduct or assignment for which safe harboris requested and at one of the following times:

i) when theconduct is requested or assignment made;

ii) when changesin the clinical situation or the nurse’s assessmentof the assignment so modify the level of nursingcare required or the specified functions, duties, oramount of work originally assigned that a newassignment occurs as defined by Subsec. (a)(__);or

iii) when thenurse refuses to engage in the requested conductor assignment.

(2) _________ [no substantivechanges to (2)]

10

EXHIBIT 1CAPPLICATION OF GOOD FAITH. BAD FAITH, MALICE STANDARD

[Changes to Subsections (a)(1), (a)(5), (a)(__), (f)(1) of Proposed Rule]

TNA RECOMMENDED CHANGES WITH CHANGES SHOWN

EXPLANATORY COMMENTS FINALWITH CHANGES NOT SHOWN

(a) Definitions. (1) Bad Faith: Knowingly or

recklessly takingTaking action not supported by areasonable factual or legal basis. The termincludes falsely portrayingmisrepresenting thefacts surrounding the events under review, actingout of malice or personal animosity towards thenurse, acting from a conflict of interest, orknowingly or recklessly denying a nurse dueprocess.

(5) Good Faith: Taking actionsupported by a reasonable factual or legal basis.Good faith precludes falselyportrayingmisrepresenting the facts surroundingthe events under review, acting out of malice orpersonal animosity towards the nurse, acting froma conflict of interest, or knowingly or recklesslydenying a nurse due process.

(__) Malice: Acting with a specificintent to cause substantial injury or harm toanother

(f) Exclusions to Safe HarborProtections.

(1) The protections provided fromdiscipline or discrimination by a facility, agency,entity, or employer under subsection Subsection(e)(2) of this section do not apply to the nurse whodoes not invokeinvokes Safe Harbor in goodbadfaith,. or

(2) -(3) ______ [NOTE: Contentnot germane to this Exhibit.]

(i) Safe Harbor Processes

Changes incorporate a mental element into badfaith

Limiting to malice toward nurse seems too limitingsince non-nurses are involved in peer reviewprocess. No harm is done by deleting.

Changes incorporate a mental element into badfaith

Is a new definition. Content is a modification fromdefinition in §41.001, Civil Remedies & ProcedureCode

See Exhibit 1D.

“Good faith” is terminology used in NPR Law andas defined above, “good faith” and “bad faith” areexact opposites. Wording in terms of “good faith”assures consistent with the NPR Law.

Substantive changes to Subdivisions(2) and (3)are addressed in Exhibit 1D .

(a) Definitions. (1) Bad Faith: Knowingly or

recklessly taking action not supported by areasonable factual or legal basis. The termincludes misrepresenting the facts surroundingthe events under review, acting out of malice orpersonal animosity, acting from a conflict ofinterest, or knowingly or recklessly denying anurse due process.

(5) Good Faith: Taking actionsupported by a reasonable factual or legal basis.Good faith precludes misrepresenting the factssurrounding the events under review, acting out ofmalice or personal animosity, acting from aconflict of interest, or knowingly or recklesslydenying a nurse due process.

(__) Malice: Acting with a specificintent to cause substantial injury or harm toanother.

(f) Exclusions to Safe HarborProtections.

(1) The protections provided fromdiscipline or discrimination under Subsection(e)(2) do not apply to the nurse who does notinvoke Safe Harbor in good faith

11

(3) Texas Occupations Codechapter 303 (Nursing Peer Review), requires thatSafe Harbor Nursing peer Peer review Reviewmust be conducted in good faith. A nurse whoknowingly participates in nursing peer review inbad faith is subject to disciplinary action by theBoard under the Texas Occupations Code§301.452(b).

The NPR Law may only do this implicitly. It refersto “bad faith” by NPR committee only once andthat is in §303.006(f)(2) addressing a committeemember reporting to board independently ofcommittee when believes determination made inbad faith.Reference to §301.452(b) is not necessary anddeleting helps readability.

(i) Safe Harbor Processes

(3) Safe Harbor Nursing PeerReview must be conducted in good faith. A nursewho knowingly participates in nursing peer reviewin bad faith is subject to disciplinary action by theBoard.

12

EXHIBIT 1DSAFE HARBOR PROTECTIONS AND EXCLUSIONS

[Changes to Subsections (e) and (f) of Proposed Rule]TNA RECOMMENDED CHANGES

WITH CHANGES SHOWNEXPLANATORY COMMENTS FINAL

WITH CHANGES NOT SHOWN(e) Safe Harbor Protections.

(1) To activate protectionsoutlined in Nursing Peer Review (TOC)§303.005(c) as described in Subsection (2), thenurse shall:

(A) Invoke invoke SafeHarbor in good faith.

(B) notify the supervisorthat she/he At the time the nurse is requested toengage in the conduct or assignment, notify thesupervisor that the nurse intends to invoke SafeHarbor in writing in accordance with subsection(d) of this section. This must be done prior toengaging in the conduct or assignment for whichsafe harbor is requested and at one of thefollowing times:

i) when theconduct is requested or assignment made;

ii) when changesin the clinical situation or the nurse’s assessmentof the assignment so modify the level of nursingcare required or the specified functions, duties, oramount of work originally assigned that a newassignment occurs as defined by Subsec. (a)(__);or

iii) when thenurse refuses to engage in the requested conductor assignment. . before accepting or refusing the assignment.This includes changes in initial practice situation,assignments, or patient acuities that adverselyimpact the conduct or assignment requested ofthe nurse such that a nurse believes in good faiththat his/her duty to the patient would be violated.This change may occur at any time.

(2) Subsections 303.005(c) and(h) of the Nursing Peer Review Law (TOC Ch.303), provide the following protections:

(A) A nurse may not be

Conforming change to reflect changes toSubdivision (2).

Conforming change to reflect changes toSubsection (d). See Exhibit 1B

This Subdivision (2) is expanded to set out in thisrule the protections provided by NPR Law so thatnurse does not have to go read the law to knowwhat protections are.

(e) Safe Harbor Protections. (1) To activate protections

outlined in Nursing Peer Review (TOC)§303.005(c) as described in Subsection (2), thenurse shall:

(A) invoke Safe Harbor ingood faith.

(B) notify the supervisorthat she/he intends to invoke Safe Harbor inwriting in accordance with subsection (d) of thissection. This must be done prior to engaging inthe conduct or assignment for which safe harboris requested and at one of the following times:

i) when theconduct is requested or assignment made;

ii) when changesin the clinical situation or the nurse’s assessmentof the assignment so modify the level of nursingcare required or the specified functions, duties, oramount of work originally assigned that a newassignment occurs as defined by Subsec. (a)(__);or

iii) when thenurse refuses to engage in the requested conductor assignment.

(2) Subsections 303.005(c) and(h) of the Nursing Peer Review Law (TOC Ch.303), provide the following protections:

(A) A nurse may not be

13

suspended, terminated, or otherwise disciplined ordiscriminated against for requesting safe harbor ingood faith;

(B) A nurse or otherperson may not be suspended, terminated, orotherwise disciplined or discriminated against foradvising a nurse in good faith of the nurse's rightto request a determination, or of the proceduresfor requesting a determination.; and A violation ofthis subsection or Nursing Peer Review Law(TOC) §303.005(h) is subject to NPA (TOC)§301.413.

(3C) A nurse is notsubject to being reported to the board and maynot be disciplined by the board for engaging in theconduct awaiting the determination of the peerreview committee as permitted by Subsection (g). A nurse's protections from licensure disciplinaryaction by the board for engaging in the conduct orassignment awaiting peer review determination agood faith safe harbor request remain in placeuntil for 48 hours after the nurse is advised of thepeer review committee's determination. This timelimitation does not apply affect to the nurse'sprotections from retaliation by the facility, agency,entity or employer under §303.005(h) of the NPRLaw (TOC ch. 303) for requesting SafeHarbor.under TOC §303.005(h).

(3) Section 301.413 of the NPAprovides a nurse or individual retaliated against inviolation of §303.005(h) of the NPR Law (TOC ch.303) a right to file suit to recover damages. Thenurse or individual also may file a complaint withan appropriate licensing agency.

(4) Safe Harbor protections alsodo not apply to any civil action that may resultfrom the nurse's practice.

(f) Exclusions to Safe HarborProtections.

Content moved to new Subdiv. (3)

Content moved from last sentence of Subdiv. (2).

May need some worksmithing to make clearer.

Invoking safe harbor does not give a nurse alicense to engage in reportable conduct withimmunity. However, to have any value safeharbor must protect the nurse from licensureliability for engaging in conduct related to therequest for safe harbor.

suspended, terminated, or otherwise disciplined ordiscriminated against for requesting safe harbor ingood faith;

(B) A nurse or otherperson may not be suspended, terminated, orotherwise disciplined or discriminated against foradvising a nurse in good faith of the nurse's rightto request a determination, or of the proceduresfor requesting a determination; and

(C) A nurse is not subjectto being reported to the board and may not bedisciplined by the board for engaging in theconduct awaiting the determination of the peerreview committee as permitted by Subsection (g). A nurse's protections from disciplinary action bythe board for engaging in the conduct orassignment awaiting peer review determinationremain in place for 48 hours after the nurse isadvised of the peer review committee'sdetermination. This time limitation does not affectto the nurse's protections from retaliation by thefacility, agency, entity or employer under§303.005(h) of the NPR Law (TOC ch. 303) forrequesting Safe Harbor.

(3) Section 301.413 of the NPAprovides a nurse or individual retaliated against inviolation of §303.005(h) of the NPR Law (TOC ch.303) a right to file suit to recover damages. Thenurse or individual also may file a complaint withan appropriate licensing agency.

(4) Safe Harbor protections donot apply to any civil action that may result fromthe nurse's practice.

(f) Exclusions to Safe HarborProtections.

14

(1) The protections provided fromdiscipline or discrimination by a facility, agency,entity or employer under subsection (e)(2) of thissection do not apply to the nurse who does notinvokeinvokes Safe Harbor in goodbad faith,. or

(2) The protections provided fromdisciplinary action by the board under subsection(e)(3) do not apply to the nurse who does notinvoke Safe Harbor in good faith, to conductengaged in prior to the request for Safe Harbor, orto conduct engages in activity unrelated to thereason for the request for Safe Harbor or thatconstitutes reportable conduct of a nurse.

(2A) In addition toconsideration of the nurse's request for SafeHarbor, the safe harbor peer review committeemay consider whether an exclusion to SafeHarbor peer review applies, and evaluate whethera nurse has engaged in reportable conduct notrelated to the request for safe harbor providedsuch review is conducted in accordance with therequirements of §217.19 (iIncident-bBased pPeerrReview) of this title.

(3B) If the safe harborpeer review committee determines that a nurse'sconduct was not related to the nurse's request forSafe Harbor and would otherwise be reportable tothe Board, the committee shall report the nurse tothe Board as required in NPA (TOC) §301.403.

See Exhibit 1C for explanation of this changerelating to good faith..

The “reportable conduct” terminology is too broadand may negate the value of safe harbor since therequested conduct or assignment itself may turnout to be “reportable conduct.” The nurse isinvoking safe harbor because believes conductviolates duty to patient and if it does may bereportable conduct. It is because nurse believedrequested conduct may be reportable that nurseneeds protection from BON action if engages inconduct awaiting peer review.

Editorial

See comment for (2) above

(1) The protections provided fromdiscipline or discrimination by a facility, agency,entity, or employer under subsection (e)(2) of thissection does not apply to the nurse who does notinvoke Safe Harbor in good faith.

(2) The protections provided fromdisciplinary action by the board under subsection(e)(3) do not apply to the nurse who does notinvoke Safe Harbor in good faith, to conductengaged in prior to the request for Safe Harbor, orto conduct unrelated to the reason for the requestfor Safe Harbor.

(A) In addition toconsideration of the nurse's request for SafeHarbor, the peer review committee may considerwhether a nurse has engaged in reportableconduct not related to the request for safe harborprovided such review is conducted in accordancewith the requirements of §217.19 (Incident-BasedPeer Review) of this title.

(B) If the safe harbor peerreview committee determines that a nurse'sconduct was not related to the nurse's request forSafe Harbor and would otherwise be reportable tothe Board, the committee shall report the nurse tothe Board as required in NPA (TOC) §301.403.

Exhibit 1 - (Rule 217.20)– Page 1

1

EXHIBIT 2TNA’S RECOMMENDED EDITORIAL CHANGES TO RULE 217.20 THAT HAVE SUBSTANTIVE IMPLICATIONS

Recommended Changes to (a)(13), (c), and (i)

TNA SUGGESTED CHANGESWITH CHANGES SHOWN

EXPLANATORY COMMENTS

FINALWITH CHANGES NOT SHOWN

(a) Definitions

(13) Safe Harbor Nursing PeerReview: The determination if the requested conductor assignment could have potentially endangered apatient, resulting result in the nurse violating his/herduty to the patient. A safe harbor Nursing pPeerrReview cCommittee reviewing a nurse's request forsafe harbor must also ascertain if external factors inthe systematic approach and/or contributed to thenurse's request and whether system changes orchanges in nursing policies related to the conductunder review could prevent the recurrence of thesame or similar unsafe situation. In accordance withNursing Peer Review Law (TOC) §303.011(b), if thecommittee determines that external factorscontributed to a nurse's request for safe harbor, thecommittee is toshall report to a patient safetycommittee.

“Endangering patients” terminology is too limitingsince wouldn’t include conduct like falsifyingreimbursement records.

This change is editorial. The wording seemsdifficult to read.

May not want to assume that unsafe.

Editorial

(a) Definitions.

(13) Safe Harbor Nursing PeerReview: The determination if the requested conductor assignment could result in the nurse violatinghis/her duty to the patient. A Nursing Peer ReviewCommittee reviewing a nurse's request for safeharbor must also ascertain if external factorscontributed to the nurse's request and whethersystem changes or changes in nursing policiescould prevent the recurrence of the same or similarsituation. In accordance with Nursing Peer ReviewLaw (TOC) §303.011(b), if the committeedetermines that external factors contributed to anurse's request for safe harbor, the committee shallreport to a patient safety committee.

(c) Applicability of Safe Harbor NursingPeer Review.

(1) Nursing Peer Review (TOC)§303.0015 requires a person who regularly employs,hires or contracts for the services of ten (10) or morenurses (for peer review of an RN, at least 5 of the 10must be RNs) to permit a nurse to request SafeHarbor Peer Review when the nurse is requested orassigned to engage in conduct that the nursebelieves is in violation of his/her duty to a patient.

(2) Any person or entity thatconducts Safe Harbor Nursing pPeer rReview isrequired to comply with the requirements of this rule.

NPR Law §303.0015 requires for RNs only if atleast 5 of the 10 nurses are RNs.

Editorial

(c) Applicability of Safe Harbor NursingPeer Review.

(1) Nursing Peer Review (TOC)§303.0015 requires a person who regularlyemploys, hires or contracts for the services of ten(10) or more nurses (for peer review of an RN, atleast 5 of the 10 must be RNs) to permit a nurse torequest Safe Harbor Peer Review when the nurseis requested or assigned to engage in conduct thatthe nurse believes is in violation of his/her duty to apatient.

(2) Any person or entity thatconducts Safe Harbor Nursing Peer Review isrequired to comply with the requirements of thisrule.

Exhibit 1 - (Rule 217.20)– Page 2

2

(i) Safe Harbor Process

(5) If the CNO or (nurseadministrator) in good faith disagrees with thedecision of the peer review committee, the rationalefor disagreeing with a peer review committee'sdetermination must be recorded and retained withthe peer review records.

(A) If the CNO or (nurseadministrator) believes the peer review wasconducted in bad faith, she/he has a duty to reportthe nurses involved under NPA (TOC) §301.402 and§217.11(1)(K) of this title.

(B) If a nurse requests asSafe hHarbor pPeer rReview determination underNursing Peer Review Law (TOC) §303.005(b), andrefuses to engage in the requested conduct orassignment pending the safe harbor peer review,the determination of the safe harbor peer reviewcommittee shall be considered in any decision bythe nurse's employer to discipline the nurse for therefusal to engage in the requested conduct, Thedeterminations of the safe harbor peer reviewcommittee are not binding if the CNO or (nurseadministrator) believes in good faith that the safeharbor peer review committee incorrectlydetermined a nurse's duty; . however, thisTheCNO’s or nurse administrator’s decision that thepeer review committee’s determination as to thenurse’s duty to the patient is not binding does notaffect the protections provided for the nurse underby Nursing Peer Review Law (TOC) §303.005(c)(1)or NPA (TOC) §301.352 and does not invalidate thecommittee’s determination as to the nurse’s duty tothe patient.

Editorial. Rationale for change is addressed inExhibit 3 (Editorial Changes).

Editorial

Changes to beginning of sentence are editorialonly.

Nurse administrator’s decision to disagree withNPR determination does not overrule or changethe NPR’s determination of the nurse’s duty to thepatient. It still exists and has significantimplications for nurse. For example, the nurseshould definitely not continue to engage in theconduct (beyond the 48 hours) because now anursing peer review committee has agreed with thenurse that the conduct violates the nurse’s duty topatient.

(i) Safe Harbor Process

(5) If the CNO or nurseadministrator in good faith disagrees with thedecision of the peer review committee, the rationalefor disagreeing with a peer review committee'sdetermination must be recorded and retained withthe peer review records.

(A) If the CNO or nurseadministrator believes the peer review wasconducted in bad faith, she/he has a duty to reportthe nurses involved under NPA (TOC) §301.402and §217.11(1)(K) of this title.

(B) If a nurse requests aSafe Harbor Peer Review determination underNursing Peer Review Law (TOC) §303.005(b), andrefuses to engage in the requested conduct orassignment pending peer review, the determinationof the peer review committee shall be considered inany decision by the nurse's employer to disciplinethe nurse for the refusal to engage in the requestedconduct, The determinations of the committee arenot binding if the CNO or nurse administratorbelieves in good faith that the safe harbor peerreview committee incorrectly determined a nurse'sduty. The CNO’s or nurse administrator’s decisionthat the peer review committee’s determination asto the nurse’s duty to the patient is not binding doesnot affect the protections provided the nurse byNursing Peer Review Law (TOC) §303.005(c)(1) orNPA (TOC) §301.352 and does not invalidate thecommittee’s determination as to the nurse’s duty tothe patient.

Exhibit 1 - (Rule 217.20)– Page 1

1

EXHIBIT 3TNA’S SUGGESTED EDITORIAL CHANGES TO §217.20 THAT DO NOT HAVE SUBSTANTIVE IMPLICATIONS

NOTE: There are several editorial consistency issues on which decisions should be made. Once made, the Rule will need to be reviewed to besure issue is addressed consistently throughout rule. These issues include:

3. Capitalization of “Safe Harbor” and “Safe Harbor Nursing Peer Review” TNA recommends that be capitalized.4. Use of “Peer Review” or “Nursing Peer Review.” TNA recommends “Nursing Peer Review.”5. Capitalization of initial word of lists in subdivisions and paragraphs.6. Format of citations to NPA and NPR Law. If need to reference the Texas Occupation Code, TNA recommends format be “§301.001 of NPA

(TOC ch. 301).” TNA is not sure that always need to reference TOC since both NPA and NPR Law are defined terms. 7. Use of periods and semi-colons – particularly in lists but also at other places such as subsection titles.8. Consistent terminology for internal references to other parts of rule. For statutes, the Texas Legislative Council uses section, subsection,

subdivision, paragraph and subparagraph but that may be helpful only to attorneys. Maybe could use Subdivision (__)(__)(__) 9. Adding the qualifier “under this section” when referencing to other subsections is unnecessary and affects readability. In legislative drafting,

any reference to a subsection is consider to refer to a subsection within the same section.

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

(a) Definitions.(1)

(2) Chief Nursing Officer (CNO):The registered nurse, by any title, who isadministratively responsible for the nursingservices at a facility, association, school, agency,or any other setting that utilizes the services ofnurses.

(3) Conduct Subject to Reporting:Defined by §301.401 of the Nursing Practice Actas means conduct by a nurse that:

(A) violates the NursingPractice Act (NPA) chapter 301 or a board rule andcontributed to the death or serious injury of apatient;

(B) causes a person tosuspect that the nurse's practice is impaired bychemical dependency or drug or alcohol abuse;

(C) constitutes abuse,exploitation, fraud, or a violation of professionalboundaries; or

TNA is recommending substantive changes todefinition of “bad faith.” See Exhibit 1C.

(a) Definitions.(1)

(2) Chief Nursing Officer (CNO):The registered nurse, by any title, who isadministratively responsible for the nursingservices at a facility, association, school, agency,or any other setting that utilizes the services ofnurses.

(3) Conduct Subject to Reporting:Defined by §301.401 of the Nursing Practice Actas conduct by a nurse that:

(A) violates the NursingPractice Act or a board rule and contributed to thedeath or serious injury of a patient;

(B) causes a person tosuspect that the nurse's practice is impaired bychemical dependency or drug or alcohol abuse;

(C) constitutes abuse,exploitation, fraud, or a violation of professionalboundaries; or

(D) indicates that the

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 2

2

(D) indicates that thenurse lacks knowledge, skill, judgment, orconscientiousness to such an extent that thenurse's continued practice of nursing couldreasonably be expected to pose a risk of harm to apatient or another person, regardless of whetherthe conduct consists of a single incident or apattern of behavior. (NPA §301.401(1))

(4) Duty to a patient: a nurse’sduty to comply with the conduct required bystandards of nursing practice (§217.11) or and notto engage in prohibited under unprofessionalconduct (§217.12) including administrativedecisions directly affecting a nurse's ability tocomply with that duty.

(5)

(6) Minor incident: Conduct by anurse that does not indicate that the nurse'scontinued practice poses a risk of harm to a patientor another person as described in §217.16.

(7) Nurse Administrator: ChiefNursing Officer (CNO) or the CNO's designee.

(8) Nursing Peer Review Law(NPR Llaw): Consists of chapter Chapter 303 ofthe Texas Occupations Code (TOC) and can onlybe changed by the Texas Legislature. Nursesinvolved in nursing peer review must comply withthe NPR statutesLaw.

(9) Nursing Practice Act (NPA):Includes chapterChapter 301 of the TexasOccupations Code (TOC) and can only bechanged by the Texas Legislature. Nurses mustcomply with the NPA.

(10) Patient Safety Committee:Any committee established by an association,school, agency, health care facility, or otherorganization to address issues relating to patientsafety that includesincluding:

(A) the entity's medicalstaff composed of individuals licensed under

TNA is recommending substantive changes todefinition of “good faith.” See Exhibit 1C.

“Change by the Texas Legislature” languagemoved to definition of TOC.

Phrase “that includes” could be read as stating thatonly the entities listed in (A), (B) or (C) qualify aspatient safety committees.

nurse lacks knowledge, skill, judgment, orconscientiousness to such an extent that thenurse's continued practice of nursing couldreasonably be expected to pose a risk of harm to apatient or another person, regardless of whetherthe conduct consists of a single incident or apattern of behavior.

(4) Duty to a patient: a nurse’sduty to comply with the standards of nursingpractice (§217.11) and not to engage inunprofessional conduct (§217.12) includingadministrative decisions directly affecting a nurse'sability to comply with that duty.

(5)

(6) Minor incident: Conduct by anurse that does not indicate that the nurse'scontinued practice poses a risk of harm to a patientor another person as described in §217.16.

(7) Nurse Administrator: ChiefNursing Officer (CNO) or the CNO's designee.

(8) Nursing Peer Review Law(NPR Law): Chapter 303 of the Texas OccupationsCode (TOC). Nurses involved in nursing peerreview must comply with the NPR Law.

(9) Nursing Practice Act (NPA):Chapter 301 of the Texas Occupations Code(TOC) Nurses must comply with the NPA.

(10) Patient Safety Committee:Any committee established by an association,school, agency, health care facility, or otherorganization to address issues relating to patientsafety including:

(A) the entity's medicalstaff composed of individuals licensed underSubtitle B (Medical Practice Act, TOC §151.001 etseq.);

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 3

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Subtitle B (Medical Practice Act, TOC §151.001 etseq.);

(B) a medical committeeunder subchapter D, chapter 161, Health & SafetyCode (§§161.031 - 161.033); or

(C) a multi-disciplinarycommittee including nursing representation, or anycommittee established by or contracted within thesame entity to promote best practices and patientsafety, as appropriate.

(11) Peer Review: Defined by§303.001(5) of NPR Law (TOC ch. 303) in theNPR law, contained within Texas OccupationsCode (TOC) §303.001(5), it isas the evaluation ofnursing services, the qualifications of a nurse, thequality of patient care rendered by a nurse, themerits of a complaint concerning a nurse orrecommendation regarding a complaint. The peerreview process is one of fact finding, analysis andstudy of events by nurses in a climate of collegialproblem solving focused on obtaining all relevantinformation about an event including influence ofsystems on the event.

(12)

(13)

(14) Texas Occupations Code(TOC): One part of the Texas Statutes, or laws.The Nursing Practice Act (NPA) and Nursing PeerReview (NPR law) statutes are but a few of thechapters of Texas laws contained within theTOCOne of the topical subdivisions or “codes” intowhich the Texas statutes or laws are organized. The Occupation Code contains the statutesgoverning occupations and professions includingthe health professions and includes both the NPAand NPR Law. The Occupations Code can be

Phrase “as appropriate” seems unnecessary andsomewhat confusing.See comment for (a)(15)(C) below.

Addition is intended to emphasize that role of NPRincludes evaluation of system factors.

TNA is recommending substantive changes todefinition of “safe harbor.” See Exhibit 1B

TNA is recommending changes to definition of“safe harbor peer review” that are editorial withsubstantive implications. See Exhibit 2.

(B) a medical committeeunder subchapter D, chapter 161, Health & SafetyCode (§§161.031 - 161.033); or

(C) a multi-disciplinarycommittee including nursing representation, or anycommittee established by or contracted within thesame entity to promote best practices and patientsafety.

(11) Peer Review: Defined by§303.001(5) of NPR Law (TOC ch. 303)as theevaluation of nursing services, the qualifications ofa nurse, the quality of patient care rendered by anurse, the merits of a complaint concerning anurse or recommendation regarding a complaint.The peer review process is one of fact finding,analysis and study of events by nurses in a climateof collegial problem solving focused on obtainingall relevant information about an event includinginfluence of systems on the event.

(12)

(13)

(14) Texas Occupations Code(TOC): One of the topical subdivisions or “codes”into which the Texas statutes or laws areorganized. The Occupation Code contains thestatutes governing occupations and professionsincluding the health professions and includes boththe NPA and NPR Law. The Occupations Codecan be changed only by the Texas Legislature.

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 4

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changed only by the Texas Legislature. (15) Whistleblower Protections:

protections available to a nurse that prohibitretaliatory action by an employer or other entityforbecause the nurse:

(A) a request made by anurserequested safe harbor nursing peer reviewunder Nursing Peer Review (TOC) §303.005(c) ofNPR Law (TOC ch. 303) regarding invoking safeharbor protections, or

(B) refused under the NPA(TOC) §301.352 of NPA (TOC ch. 301) regarding anurse's refusal to engage in an act or omissionrelating to patient care that would constitutegrounds for reporting the nurse to the board, thatconstitutes a minor incident, or that violates theNPA or board rules; or

(C) made a report madeby a nurse under NPA (TOC) §301.4025 of theNPA (TOC ch. 301)(related to reporting patientsafety concerns) and subsection (k) of this section,that may also be protected under other laws orregulations, concerning unsafe practitioners orunsafe patient care practices or conditions.Protection from retaliatory action applies to anyreport made to a licensing agency, accreditingbody, regulatory entity, or administrative personnelwithin the facility or organization that the nursebelieves has the power to take corrective action.

Grammatical changes to fit with stem whetherstem is “prohibit retaliatory action ... for” or “prohibitretaliatory action ... because the nurse.”

The way proposed rule formats references to NPAor NPR Law seems to read awkwardly. If decisionis to use different format, then that format will needto be used consistently throughout rule

(15) Whistleblower Protections:protections available to a nurse that prohibitretaliatory action by an employer or other entitybecause the nurse:

(A) requested safe harbornursing peer review under §303.005(c) of NPRLaw (TOC ch. 303),

(B) refused under the §301.352 of NPA (TOC ch. 301) to engage in anact or omission relating to patient care that wouldconstitute grounds for reporting the nurse to theboard, that constitutes a minor incident, or thatviolates the NPA or board rules; or

(C) made a report under §301.4025 of the NPA (TOC ch. 301)(related toreporting patient safety concerns) and subsection(k) of this section, that may also be protectedunder other laws or regulations, concerning unsafepractitioners or unsafe patient care practices orconditions. Protection from retaliatory actionapplies to any report made to a licensing agency,accrediting body, regulatory entity, oradministrative personnel within the facility ororganization that the nurse believes has the powerto take corrective action.

(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 peerreview, to;

(3) provide guidance to facilities,agencies, employers of nurses, or anyone whoutilizes the services of nurses in the developmentand application of peer review plans; to

(4) assure that nurses haveknowledge of the plan as well as their right to

Setting out as a list may make easier to read

Determining nurse’s duty is primary role of Safe

(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 peerreview;

(3) provide guidance to facilities,agencies, employers of nurses, or anyone whoutilizes the services of nurses in the developmentand application of peer review plans;

(4) assure that nurses haveknowledge of the plan as well as their right to

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 5

5

invoke Safe Harbor, and to ; and(4) provide guidance to the peer

review committee in its fact finding processmakingits determination of the nurse’s duty to the patient.Safe Harbor must be invoked prior to or at the timethe assignment is made or conduct requested.This includes changes in initial practice situation,assignments, or patient acuities that adverselyimpact the conduct or assignment requested of thenurse such that a nurse believes in good faith thathis/her duty to the patient would be violated. Thischange may occur at any time.

Harbor NPR and not fact finding per se.

Deleted sentences don’t seem to fit well in thissubsection here and content is repeated severalother places- (a)(12), (d)(1), (d)(2), (e)(1)(B). SeeExhibit 1B relating to substantive changes to thissubsection. .

invoke Safe Harbor; and (5)provide guidance to the peer

review committee in making its determination ofthe nurse’s duty to the patient.

(c) Applicability of Safe Harbor PeerReview:

TNA is recommending editorial changes toSubsection (c) that have substantive implications. See Exhibit 2.

(c) Applicability of Safe Harbor PeerReview.

(d) Invoking Safe Harbor TNA is recommending substantive changes toSubsection (d). See Exhibit 1B.

(d) Invoking Safe Harbor.

(e) Safe Harbor Protections. TNA is recommending substantive changes toSubsection (e). See Exhibit 1D

(e) Safe Harbor Protections.

(f) Exclusions to Safe Harbor Protections. TNA is recommending substantive changes toSubsection (f). See Exhibit 1C and 1E

(f) Exclusions to Safe Harbor Protections.

(g) Nurse's Decision to Accept or RefuseAssignment When Invoking Safe Harbor and WhileAwaiting Determination of Safe Harbor PeerReview Committee.

TNA is recommending substantive changes toSubsection (g). See Exhibit 1A.

(g) Nurse's Decision to Accept or RefuseAssignment When Invoking Safe Harbor and WhileAwaiting Determination of Safe Harbor PeerReview Committee.

(h) Minimum Due Process. (1) A person or entity required to

comply with Nursing Peer Review (TOC)§303.005(i) by §303.0015 of the NPR Law (TOCch. 303) to provide nursing peer review shall adoptand implement a policy to inform nurses of theirright to request a nursing peer review committeedetermination (Safe Harbor Nursing Peer Review)and the procedure for making a request.

(2) In order to meet the minimumdue process required by Nursing Peer Review Law(TOC) chapter 303, the nursing peer review

Reference should be to §303.0015.

Reorganized so (A)-(D) are set out as requiredcomponents of minimum due process.

(h) Minimum Due Process. (1) A person or entity required by

§303.0015 of the NPR Law (TOC ch. 303) toprovide nursing peer review shall adopt andimplement a policy to inform nurses of their right torequest a nursing peer review committeedetermination (Safe Harbor Nursing Peer Review)and the procedure for making a request.

(2) In order to meet the minimumdue process required by Nursing Peer Review Law(TOC) chapter 303, the nursing peer reviewcommittee shall:

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 6

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committee shall: (A) comply with themembership and voting requirements as set forthin TOC §303.003(a) - (d);

(3B) The peer reviewcommittee shall exclude from the committeemembership, any persons or person withadministrative authority for personnel decisionsdirectly affecting the nurse. ;

(4C) limit attendanceAttendance at the safe harbor peer review hearingby a CNO, nurse (administrator,) or other personsindividual with administrative authority over thenurse, including the individual who requested theconduct or made the assignment, is limited toappearing before the safe harbor peer reviewcommittee to speak as a fact witness. ; and

(5D) permit the The nurserequesting safe harbor shall be permitted to:

(Ai) appear beforethe committee;

(Bii) askquestions and respond to questions of thecommittee; and

(Ciii) make averbal and/or written statement to explain why heor she believes the requested conduct orassignment would have violated a nurse's duty to apatient.

Need only refer to 303.003 since it consists only ofSubsecs. (a)-(d).

(A) comply with themembership and voting requirements as set forthin TOC §303.003;

(B) exclude from thecommittee membership, any persons or personwith administrative authority for personneldecisions directly affecting the nurse;

(C) limit attendance at thesafe harbor peer review hearing by a CNO, nurseadministrator, or other individual withadministrative authority over the nurse, includingthe individual who requested the conduct or madethe assignment, to appearing before the safeharbor peer review committee to speak as a factwitness; and

(D) permit the nurserequesting safe harbor to:

(i) appear beforethe committee;

(ii) ask questionsand respond to questions of the committee; and

(iii) make a verbaland/or written statement to explain why he or shebelieves the requested conduct or assignmentwould have violated a nurse's duty to a patient.

(i) Safe Harbor ProcessesTimelines. (1) The following timelines shall be

followed: (A1) Tthe safe harbor peer review

committee shall complete its review and notify theCNO ( or nurse administrator) within 14 calendardays of when the nurse requested Safe Harbor; .

(B2) Wwithin 48 hours of receivingthe committee's determination, the CNO (or nurseadministrator) shall review these findings and

Seems to make clearer if have a separate sectionfor timelines.

(i) Safe Harbor Timelines.

(1) The safe harbor peer reviewcommittee shall complete its review and notify theCNO or nurse administrator within 14 calendardays of when the nurse requested Safe Harbor.

(2) Within 48 hours of receivingthe committee's determination, the CNO or nurseadministrator shall review these findings and notify

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 7

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notify the nurse requesting safe harbor peer reviewof both the committee's determination and whetherthe administrator believes in good faith that thecommittee's findings are correct or incorrect.

(3) The nurse’s protection fromdisciplinary action by the board for engaging in theconduct or assignment awaiting peer reviewdetermination expire 48 hours after the nurse isadvised of the peer review committee'sdetermination. The expiration of this protectiondoes not affect to the nurse's protections fromretaliation by the facility, agency, entity oremployer under §303.005(h) of the NPR Law (TOCch. 303) for requesting Safe Harbor.

Repeats language currently set out at (e)(2(C) butseems appropriate to repeat here so all timelinesare together.

the nurse requesting Safe Harbor of both thecommittee's determination and whether theadministrator believes in good faith that thecommittee's findings are correct or incorrect.

(3) The nurse’s protection fromdisciplinary action by the board for engaging in theconduct or assignment awaiting peer reviewdetermination expire 48 hours after the nurse isadvised of the peer review committee'sdetermination. The expiration of this protectiondoes not affect to the nurse's protections fromretaliation by the facility, agency, entity oremployer under §303.005(h) of the NPR Law (TOCch. 303) for requesting Safe Harbor.

(i) (j) General Provisions(21) The Chief Nursing Officer

(CNO) of a facility, association, school, agency, orof any other setting that utilizes the services ofnurses is responsible for knowing the requirementsof this Rule and for taking reasonable steps toassure that peer review is implemented andconducted in compliance with the Nursing PracticeAct (TOC ch. 301) and Nursing Peer Review Law(TOC ch 303).

(32) Texas Occupations Codechapter 303 (Nursing Peer Review), requires thatNursing peer Peer review Review must beconducted in good faith. A nurse who knowinglyparticipates in peer review in bad faith is subject todisciplinary action by the Board under the TexasOccupations Code §301.452(b).

(43) The peer review committeeand participants shall comply with theconfidentiality requirement of Nursing Peer ReviewLaw (TOC) §303.006 and §303.007 relating toconfidentiality and limited disclosure of peer reviewinformation.

(54) If the CNO ( or nurseadministrator) in good faith disagrees with the

New subsection reflecting TNA’s recommendationto divide Subsection (i) into two subsections.

The NPR Law may only do this implicitly. It refersto “bad faith” by NPR committee only once andthat is in §303.006(f)(2) addressing a committeemember reporting to board independently ofcommittee when believes determination made inbad faith.

Needs to be consistent through out rule. “CNO ornurse administrator”’ seems easiest to read.

(j) General Provisions(1) The Chief Nursing Officer

(CNO) of a facility, association, school, agency, orof any other setting that utilizes the services ofnurses is responsible for knowing the requirementsof this Rule and for taking reasonable steps toassure that peer review is implemented andconducted in compliance with the Nursing PracticeAct (TOC ch. 301) and Nursing Peer Review Law(TOC ch 303).

(2) Nursing Peer Review must beconducted in good faith. A nurse who knowinglyparticipates in peer review in bad faith is subject todisciplinary action by the Board under the TexasOccupations Code §301.452(b).

(3) The peer review committeeand participants shall comply with theconfidentiality requirement of Nursing Peer ReviewLaw (TOC) §303.006 and §303.007 relating toconfidentiality and limited disclosure of peer reviewinformation.

(4) If the CNO or nurseadministrator in good faith disagrees with the

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 8

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decision of the peer review committee, therationale for disagreeing with a peer review thecommittee's determination must be recorded andretained with the peer review records.

(A) If the CNO (or nurseadministrator) believes the peer review wasconducted in bad faith, she/he has a duty to reportthe nurses involved under NPA (TOC) §301.402and §217.11(1)(K) of this title.

(B) _________

TNA is recommending changes to Paragraph (B)that are editorial with substantive implications. See Exhibit 2.

decision of the peer review committee, therationale for disagreeing with the committee'sdetermination must be recorded and retained withthe peer review records.

(A) If the CNO or nurseadministrator believes the peer review wasconducted in bad faith, she/he has a duty to reportthe nurses involved under NPA (TOC) §301.402and §217.11(1)(K) of this title.

(B) _________

(j k) Use of Informal Work Group In SafeHarbor Nursing Peer Review. A facility maychoose to initiate an informal review processutilizing a workgroup of the nursing peer reviewcommittee provided that the final determination ofthe nurse's duty complies with the time lines setout in this rule and there are written policies for theinformal workgroup that require:

(1) the nurse: (A) be informed how the

informal workgroup will function and that the nursedoes not waive any right to peer review byaccepting or rejecting the use of an informalworkgroup, ; and

(B) consent, in writing, tothe use of an informal workgroup. ;

(2) the informal workgroup complywith the membership and voting requirements ofsubsection Subsection (h) of this section. ;

(3) the nurse to be provided theopportunity to meet with the informal workgroup;

(4) the nurse has the right to rejectany decision of the informal workgroup and havethe safe harbor peer reviewentire committeedetermine if the requested conduct or assignmentviolates the nurse's duty to the patient(s), in whichevent members of the informal workgroup shall notparticipate in that determination; and ;

(5) ratification by the safe harborpeer review committee chair person of any

Renumbered to reflect dividing Subsection (i) intotwo subsections

Seems more confusing than helpful.

(k) Use of Informal Work Group In SafeHarbor Nursing Peer Review. A facility maychoose to initiate an informal review processutilizing a workgroup of the nursing peer reviewcommittee provided that the final determination ofthe nurse's duty complies with the time lines setout in this rule and there are written policies for theinformal workgroup that require:

(1) the nurse: (A) be informed how the

informal workgroup will function and that the nursedoes not waive any right to peer review byaccepting or rejecting the use of an informalworkgroup; and

(B) consent, in writing, tothe use of an informal workgroup;.

(2) the informal workgroup complywith the membership and voting requirements ofSubsection (h);

(3) the nurse be provided theopportunity to meet with the informal workgroup;

(4) the nurse has the right to rejectany decision of the informal workgroup and havethe entire committee determine if the requestedconduct or assignment violates the nurse's duty tothe patient(s), in which event members of theinformal workgroup shall not participate in thatdetermination;

(5) ratification by the safe harborpeer review committee chair person of any

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 9

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decision made by the informal workgroup. If thechair person disagrees with a determination of theinformal workgroup, the chair person shall convenethe full peer review committee to review theconduct in question. ; and

(6) the peer review chair personmust communicate any decision of the informalwork group to the CNO /or nurse administrator.

Need to be consistent throughout rule. “CNO ornurse administrator”’ seems easiest to read.

decision made by the informal workgroup. If thechair person disagrees with a determination of theinformal workgroup, the chair person shall convenethe full peer review committee to review theconduct in question; and

(6) the peer review chair personcommunicate any decision of the informal workgroup to the CNO or nurse administrator.

(k l) Reporting Conduct of otherPractitioners or Entities/; WhistleblowerProtections.

(1) This subsection does notexpand the authority of any safe harbor peerreview committee or the board to makedeterminations outside the practice of nursing.

(2) In a written, signed report tothe appropriate licensing board or accreditingbody, and in accordance with §301.4025, a nursemay report a licensed health care practitioner,agency, or facility that the nurse has reasonablecause to believe has exposed a patient tosubstantial risk of harm as a result of failing toprovide patient care that conforms to:

(A) minimum standards ofacceptable and prevailing professional practice, fora report made regarding a practitioner; or

(B) statutory, regulatory,or accreditation standards, for a report maderegarding an agency or facility.

(3) A nurse may report to thenurse's employer or another entity at which thenurse is authorized to practice any situation thatthe nurse has reasonable cause to believeexposes a patient to substantial risk of harm as aresult of a failure to provide patient care thatconforms to minimum standards of acceptable andprevailing professional practice or to statutory,regulatory, or accreditation standards. Forpurposes of this subsection, an employer or entityincludes an employee or agent of the employer or

Renumbered to reflect dividing Subsection (i) intotwo subsections

(l) Reporting Conduct of Practitioners orEntities; Whistleblower Protections.

(1) This subsection does notexpand the authority of any safe harbor peerreview committee or the board to makedeterminations outside the practice of nursing.

(2) In a written, signed report tothe appropriate licensing board or accreditingbody, and in accordance with §301.4025, a nursemay report a licensed health care practitioner,agency, or facility that the nurse has reasonablecause to believe has exposed a patient tosubstantial risk of harm as a result of failing toprovide patient care that conforms to:

(A) minimum standards ofacceptable and prevailing professional practice, fora report made regarding a practitioner; or

(B) statutory, regulatory,or accreditation standards, for a report maderegarding an agency or facility.

(3) A nurse may report to thenurse's employer or another entity at which thenurse is authorized to practice any situation thatthe nurse has reasonable cause to believeexposes a patient to substantial risk of harm as aresult of a failure to provide patient care thatconforms to minimum standards of acceptable andprevailing professional practice or to statutory,regulatory, or accreditation standards. Forpurposes of this subsection, an employer or entityincludes an employee or agent of the employer orentity.

PROPOSED RULES WITH TNA’S SUGGESTED NONSUBSTANTIVE EDITORIAL CHANGES

EXPLANATORY COMMENT FINAL

Exhibit 1 - (Rule 217.20)– Page 10

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entity. (4) A person may not suspend or

terminate the employment of, or otherwisediscipline or discriminate against, a person whoreports, without malice, under this section. Aviolation of this subsection is subject to NPA (TOC)§301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual also may file acomplaint with an appropriate licensing agency.

(4) A person may not suspend orterminate the employment of, or otherwisediscipline or discriminate against, a person whoreports, without malice, under this section. Aviolation of this subsection is subject to NPA(TOC) §301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual also may file acomplaint with an appropriate licensing agency.

Exhibit 1 - (Rule 217.20)– Page 1

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EXHIBITS 4A – 4CTNA RECOMMENDED SUBSTANTIVE CHANGES TO RULE §217.19.INCIDENT-BASED NURSING PEER REVIEW

PageExhibit 4A - Application Of Good Faith. Bad Faith, Malice Standard............. 1Exhibit 4B – Addressing Nursing Whose Practice Is Impaired....................... 3Exhibit 4C – Confidentiality................................................................................ 6

EXHIBIT 4AAPPLICATION OF GOOD FAITH. BAD FAITH, MALICE STANDARD

[Subsections (a), (j), (l) and (m) of Proposed Rule]RECOMMENDED CHANGESWITH CHANGES SHOWN

EXPLANATORY COMMENTS.

FINALWITH CHANGES NOT SHOWN

(a) Definitions. (1) Bad Faith: Knowingly or

recklessly takingTaking action not supported by areasonable factual or legal basis. The term includesfalsely portrayingmisrepresenting the factssurrounding the events under review, acting out ofmalice or personal animosity towards the nurse,acting from a conflict of interest, or knowingly orrecklessly denying a nurse due process.

(5) Good Faith: Taking actionsupported by a reasonable factual or legal basis.Good faith precludes falselyportrayingmisrepresenting the facts surrounding theevents under review, acting out of malice orpersonal animosity towards the nurse, acting from aconflict of interest, or knowingly or recklesslydenying a nurse due process.

(__) Malice: Acting with a specific

Changes incorporate a mental element into badfaith.

Limiting to malice toward nurse seems too limitingsince non-nurses are involved in peer reviewprocess. No harm is done by deleting.

Changes incorporate a mental element into bad faith

Limiting to malice toward nurse seems too limitingsince non-nurses are involved in peer reviewprocess. No harm is done by deleting.

Is a new definition. Content is from definition in§41.001, Civil Remedies & Procedure Code

(a) Definitions. (1) Bad Faith: Knowingly or

recklessly taking action not supported by areasonable factual or legal basis. The term includesmisrepresenting the facts surrounding the eventsunder review, acting out of malice or personalanimosity, acting from a conflict of interest, orknowingly or recklessly denying a nurse dueprocess.

(5) Good Faith: Taking actionsupported by a reasonable factual or legal basis.Good faith precludes misrepresenting the factssurrounding the events under review, acting out ofmalice or personal animosity, acting from a conflictof interest, or knowingly or recklessly denying anurse due process.

(__) Malice: Acting with a specific

Exhibit 1 - (Rule 217.20)– Page 2

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intent to cause substantial injury or harm to another.

(j) Nurse's Duty to Report. (1) A report made by a nurse to a

nursing incident-based peer review committee willsatisfy the nurse's duty to report to the board underNPA (TOC) §301.402 (mandatory report by a nurse)provided that the following conditions are met:

(A) ____ [NOTE:Paragraph (A) is not relevant to this issue.]

(B) The nurse has noreason to believe the incident-based peer reviewcommittee made it'sits determination in bad faith.

(2) A nurse may not be suspended,terminated, or otherwise disciplined or discriminatedagainst for filing a report made in good faithwithoutmalice under this rule and NPA §301.402(f)(retaliation for a good faith report made withoutmalice prohibited). A violation of this subsection orNPA §301.402(f) is subject to NPA §301.413(retaliatory action prohibited) that provides a nurseretaliated against a right to file suit to recoverdamages. The nurse or individual may file acomplaint with an appropriate licensing agency.

(l) Integrity of Incident-Based PeerReview Process.

(1) NPA chapter 303, requires thatincident-based peer reviewIncident Based NursingPeer Review must be conducted in good faith. Anurse who knowingly participates in incident-basedpeer review in bad faith is subject to disciplinaryaction by the board under the NPA §301.452(b).

‘Without malice” is standard used in NPA §301.402.It is also consistent with Subparagraph (m)(2)(B)(ii)set out below.

Sets out nature of remedy in more detail.

Chapter 303 is the NPR Law. The NPR Law may only do this implicitly. It refers to“bad faith” by NPR committee only once and that isin §303.006(f)(2) addressing a committee memberreporting to board independently of committee whenbelieves determination made in bad faith.Deletion of citation is editorial.

intent to cause substantial injury or harm to another.

(j) Nurse's Duty to Report. (1) A report made by a nurse to a

nursing incident-based peer review committee willsatisfy the nurse's duty to report to the board underNPA (TOC) §301.402 (mandatory report by a nurse)provided that the following conditions are met:

(A) ____ [NOTE:Paragraph (A) is not relevant to this issue.]

(B) The nurse has noreason to believe the incident-based peer reviewcommittee made its determination in bad faith.

(2) A nurse may not be suspended,terminated, or otherwise disciplined or discriminatedagainst for filing a report made without malice underthis rule and NPA §301.402(f) (retaliation for areport made without malice prohibited). A violationof this subsection or NPA §301.402(f) is subject toNPA §301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual may file acomplaint with an appropriate licensing agency.

(l) Integrity of Incident-Based PeerReview Process.

(1) Incident-Based Nursing PeerReview must be conducted in good faith. A nursewho knowingly participates in incident-based peerreview in bad faith is subject to disciplinary action bythe board

Exhibit 1 - (Rule 217.20)– Page 3

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(m) Reporting Conduct of otherPractitioners or Entities/WhistleblowerProtections.

(2)(B)

(ii) A person maynot suspend or terminate the employment of, orotherwise discipline or discriminate against, aperson who reports, without malice, under thissection. A violation of this subsection is subject to§301.413 (retaliatory action prohibited) that providesa nurse or individual retaliated against a right to filesuit to recover damages. The nurse or individualmay file a complaint with the appropriate licensingagency.

Sets out nature of remedy in more detail.

(m) Reporting Conduct of Practitionersor Entities/Whistleblower Protections.

(2)(B)

(ii) A person maynot suspend or terminate the employment of, orotherwise discipline or discriminate against, aperson who reports, without malice, under thissection. A violation of this subsection is subject to§301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual may file acomplaint with the appropriate licensing agency.

Exhibit 1 - (Rule 217.20)– Page 4

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EXHIBIT 4BADDRESSING NURSING WHOSE PRACTICE IS IMPAIRED

[Subsections (f) and (g) of Proposed Rule]RECOMMENDED CHANGESWITH CHANGES SHOWN

EXPLANATORY COMMENTS.

FINALWITH CHANGES NOT SHOWN

(f) Exclusions to Minimum Due ProcessRequirements. The minimum due processrequirements set out in subsection Subsection (d) ofthis section do not apply to:

(1) peer review conducted solely incompliance with NPA (TOC) §301.405(c) relating toincident-based peer review of external factors, aftera report of a nurse to the board has alreadyoccurred under NPA (TOC) §301.405(b) (relating tomandatory report by employer, facility or agency); or

(2) reviews governed by Subsection(g) involving nurses whose practice is suspected ofbeing impaired due to chemical dependency, drugor alcohol abuse, substance abuse/misuse,"intemperate use," mental illness, or diminishedmental capacity. when during the course of theincident-based peer review process, a practiceviolation is identified as a possible consequence ofthe nurse's practice being impaired as describedunder subsection (g) of this section; or

(3) when a person required to reporta nurse believes that a nurse's practice is impairedor suspected of being impaired has also resulted ina violation under NPA (TOC) §301.410(b), thatrequires a direct report to the board.

(g) Incident-Based Peer Review of aNurse's Impaired Practice/ Lack of Fitness.

(1) Instead of requesting review bya peer review committee, When a nurse’s whose

“... of this section” seems to make harder to read.

Editorial

Editorial

Rewritten to try to simplify by simply stating that ifSubsec. (g) (relating to impaired practice) appliesthen due process governed by that section

Subdivisions (1) and (2) have been combined byusing a common stem.

(f) Exclusions to Minimum Due ProcessRequirements. The minimum due processrequirements set out in Subsection (d) do not applyto:

(1) peer review conducted solely incompliance with NPA (TOC) §301.405(c) relating toreview of external factors after a report of a nurse tothe board has already occurred under NPA (TOC)§301.405(b) (relating to mandatory report byemployer, facility or agency); or

(2) reviews governed by Subsection(g) involving nurses whose practice is suspected ofbeing impaired due to chemical dependency, drugor alcohol abuse, substance abuse/misuse,"intemperate use," mental illness, or diminishedmental capacity.

(g) Incident-Based Peer Review of aNurse's Impaired Practice/ Lack of Fitness.

(1) When a nurse’s practice is

Exhibit 1 - (Rule 217.20)– Page 5

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practice is impaired or suspected of being impaireddue to chemical dependency, drug or alcohol abuse,substance abuse/misuse, "intemperate use," mentalillness, or diminished mental capacity, with noevidence of nursing practice violations, peer reviewshall be suspended, and the nurse shall be reportedto the board or a board-approved peer assistanceprogram, in accordance with NPA (TOC)§301.410(a) (related relating to reporting ofimpairment):, to either:

(A) if there is no reasonablefactual basis for determining that a practice violationis involved, the nurse shall be reported to:

(i) the board; or (B ii) a board-

approved peer assistance program which shallhandle report in accordance with Rule 217.13. ; or

(2 B) if If during the courseof an incident-based peer review process, there is areasonable factual basis for a determination that apractice violation is involved, the nurse shall bereported to the board. occurred due to a nurse'spractice impairment or suspected practiceimpairment or lack of fitness due to chemicaldependency, drug or alcohol abuse, substanceabuse/misuse, "intemperate use," mental illness, ordiminished mental capacity of a reported nurse, theincident-based peer review process shall besuspended, and the nurse reported to the board inaccordance with NPA (TOC) §301.410(b) (related torequired report to board when practice violationsexist with suspected practice impairment/lack offitness).

(A 2) Following suspension of peerreview of the nurse, the incident-based peer reviewcommittee shall proceed to evaluate external factorsto determine if:

(i) any factorsbeyond the nurse's control contributed to a practice

Because of difficulty of determining if practiceviolation may be involved, Rule 217.13 (withproposed change published in Tex Reg.) requires allthird-party reports to TPAPN (even if no practiceviolation) be reviewed with BON and so may want torefer to Rule 217.13.

Content made a separate Subsec. (2) so thatapplicable to entire Subsec. (g) and not just when apractice violation is involved. This makes review ofexternal factors apply even if no practice violationinvolved. If want to limit only to situations in whichpractice violations are involved\, then would begin(2) with “Following suspension of peer review of the

impaired or suspected of being impaired due tochemical dependency, drug or alcohol abuse,substance abuse/misuse, "intemperate use," mentalillness, or diminished mental capacity, peer reviewshall be suspended, and the nurse shall be reportedto the board or a board-approved peer assistanceprogram in accordance with NPA (TOC) §301.410(relating to reporting of impairment):

(A) if there is no reasonablefactual basis for determining that a practice violationis involved, the nurse shall be reported to:

(i) the board; or ( ii) a board-

approved peer assistance program which shallhandle report in accordance with Rule 217.13.

( B) if there is a reasonablefactual basis for a determination that a practiceviolation is involved, the nurse shall be reported tothe board; or

(2) Following suspension of peerreview of the nurse, the committee shall proceed toevaluate external factors to determine if:

(i) any factorsbeyond the nurse's control contributed to a practiceviolation, and

Exhibit 1 - (Rule 217.20)– Page 6

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violation, and(ii) if any deficiency

in external factors enabled the nurse to engage inunprofessional or illegal conduct, and

(iii 3) If the committee determinesunder Subdivision (2) that external factors do existfor either clause (i) or (ii) of this subparagraph, thecommittee shall report it's its findings to a patientsafety committee or to the CNO if there is no patientsafety committee.

(B 4) A facility, organization,contractor, or other entity does not violate a nurse'sright to due process under Subsection (d) TOC§303.002(e) relating to peer review by suspendingthe committee's review and reporting the nurse tothe Board in accordance with paragraph Subdivision(2) of this subsection.

(3 5) Neither paragraph (1) or (2) ofthis subsection above Subdivision (1) does notpreclude a nurse from self-reporting to a peerassistance program or appropriate treatment facility.

nurse under Paragraph (1)(B)

Editorial. Easier for nurse to look at (d) and (d)refers to 303.002(e).

Editorial. Need to decide on consistent way to referto other sections of rule.

Conforming change to reflect that (1) and (2) havebeen combined.

(ii) any deficiencyin external factors enabled the nurse to engage inunprofessional or illegal conduct, and

(3) If the committee determinesunder Subdivision (2) that external factors do exist,the committee shall report its findings to a patientsafety committee or to the CNO if there is no patientsafety committee.

(4) A facility, organization,contractor, or other entity does not violate a nurse'sright to due process under Subsection (d) bysuspending the committee's review and reportingthe nurse to the Board in accordance withSubdivision (2).

(5) Subdivision (1)does notpreclude a nurse from self-reporting to a peerassistance program or appropriate treatment facility.

Exhibit 3 - (Rule 217.20)– Page 1

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EXHIBIT 4CCONFIDENTIALITY

[Subsection (j) of Proposed Rule]RECOMMENDED CHANGESWITH CHANGES SHOWN

EXPLANATORY COMMENTS.

FINALWITH CHANGES NOT SHOWN

(j) Nurse's Duty to Report. (1) A report made by a nurse to a

nursing incident-based peer review committee willsatisfy the nurse's duty to report to the board underNPA (TOC) §301.402 (mandatory report by a nurse)provided that the following conditions are met:

(A) The reporting nurseshall be notified of the incident-based peer reviewcommittee's actions or findings subject to thenurse’s agreeing in writing not to disclose thatinformation except as permitted by §303.006 of theNPR Law (TOC ch. 303) and shall be subject toNursing Peer Review (TOC) §303.006(confidentiality of peer review proceedings); and

(B) ___ [NOTE: Remainderof Subsec. (j) is not relevant to confidentiality issue.]

Strengthens requirement by requiring nurse agree inwriting not to disclose information.

(j) Nurse's Duty to Report. (1) A report made by a nurse to a

nursing incident-based peer review committee willsatisfy the nurse's duty to report to the board underNPA (TOC) §301.402 (mandatory report by a nurse)provided that the following conditions are met:

(A) The reporting nurseshall be notified of the incident-based peer reviewcommittee's actions or findings subject to thenurse’s agreeing in writing not to disclose thatinformation except as permitted by §303.006 of theNPR Law (TOC ch. 303) and

(B) ___ [NOTE: Remainderof Subsec. (j) is not relevant to confidentiality issue.]

Exhibit 3 - (Rule 217.20)– Page 2

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EXHIBIT 5SUGGESTED EDITORIAL CHANGES TO RULE §217.19. INCIDENT-BASED NURSING PEER REVIEW

NOTE: There are several editorial consistency issues on which decisions should be made. Once made, the rule will need to be reviewed to be sureissue is addressed consistently throughout rule. These issues include:

10. Capitalization of “Incident Based Nursing Peer Review” TNA recommends that be capitalized.11. Use of “Peer Review” or “Nursing Peer Review.” TNA recommends “Nursing Peer Review.”12. Capitalization of initial word of lists in subdivisions and paragraphs.13. Use of periods and semi-colons – particularly in lists but also at other places such as subsection titles.14. Format of citations to NPA and NPR Law. If need to reference the Texas Occupation Code, TNA recommends format be “§301.001 of NPA

(TOC ch. 301).” TNA is not sure that always need to reference TOC since both NPA and NPR Law are defined terms. 15. Consistent terminology for internal references to other parts of rule. For statutes, the Texas Legislative Council uses section, subsection,

subdivision, paragraph and subparagraph but that may be helpful only to attorneys. Maybe could use Subdivision (__)(__)(__). 16. Adding the qualifier “under this section” when referencing to other subsections is unnecessary and affects readability. In legislative drafting,

any reference to a subsection is consider to refer to a subsection within the same section.

TNA SUGGESTED EDITORIAL CHANGESWITH CHANGES SHOWN

COMMENTS

.

FINALWITH CHANGES NOT SHOWN

(a) Definitions. (1) Bad Faith:

(2) Chief Nursing Officer (CNO):The registered nurse, by any title, who isadministratively responsible for the nursing servicesat a facility, association, school, agency, or anyother setting that utilizes the services of nurses.

(3) Conduct Subject to Reporting:Defined by §301.401 of the Nursing Practice Act asis conduct by a nurse that:

(A) violates chapter 301 ofthe Nursing Practice Act (NPA), or a board rule andcontributed to the death or serious injury of apatient;

(B) causes a person tosuspect that the nurse's practice is impaired bychemical dependency or drug or alcohol abuse;

(C) constitutes abuse,exploitation, fraud, or a violation of professionalboundaries; or

TNA is recommending substantive changes todefinition of “bad faith.” See Exhibit 4A.

(a) Definitions. (1) Bad Faith:

(2) Chief Nursing Officer (CNO):The registered nurse, by any title, who isadministratively responsible for the nursing servicesat a facility, association, school, agency, or anyother setting that utilizes the services of nurses.

(3) Conduct Subject to Reporting:Defined by §301.401 of the Nursing Practice Act asconduct by a nurse that:

(A) violates the NursingPractice Act or a board rule and contributed to thedeath or serious injury of a patient;

(B) causes a person tosuspect that the nurse's practice is impaired bychemical dependency or drug or alcohol abuse;

(C) constitutes abuse,exploitation, fraud, or a violation of professionalboundaries; or

(D) indicates that the nurse

Exhibit 3 - (Rule 217.20)– Page 3

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(D) indicates that the nurselacks knowledge, skill, judgment, orconscientiousness to such an extent that the nurse'scontinued practice of nursing could reasonably beexpected to pose a risk of harm to a patient oranother person, regardless of whether the conductconsists of a single incident or a pattern of behavior.(§301.401(1));

(4) Duty to a Patient: A nurse’s dutyto comply with the Conduct required by standards ofnursing practice (§217.11) or and not to engage in prohibited by unprofessional conduct (§217.12),including administrative decisions directly affecting anurse's ability to comply with that duty, as adoptedby the board.

(5) Good Faith:

(6) Incident-Based Peer Review:Incident-based peer review focuses on determiningif a nurse's actions, be it a single event or multipleevents (such as in reviewing up to 5 minor incidentsby the same nurse within a year's period of time)should be reported to the board, or if the nurse'sconduct does not require reporting because theconduct constitutes a minor incident that can beremediated. The review includes whether externalfactors beyond the nurse's control may havecontributed to any deficiency in care by the nurse,and to report such findings to a patient safetycommittee as applicable. (§303.001(5))

(7) Minor incident: conduct Conductby a nurse that does not indicate that the nurse'scontinued practice poses a risk of harm to a patientor another person as described in §217.16.

(8) Nursing Peer Review (NPR):Consists of chapterChapter 303 of the TexasOccupations Code (TOC) and can only be changedby the Texas Legislature. Nurses involved in nursingpeer review must comply with the NPR statutesLaw.

TNA is recommending substantive changes todefinition of “good faith.” See Exhibit 4A

Adding citation doesn’t seem to be helpful unlesstracking language of statute and then may be betterto state “As defined by ...”

Moved to definition of Texas Occupations Code

Moved to definition of Texas Occupations Code

lacks knowledge, skill, judgment, orconscientiousness to such an extent that the nurse'scontinued practice of nursing could reasonably beexpected to pose a risk of harm to a patient oranother person, regardless of whether the conductconsists of a single incident or a pattern of behavior.

(4) Duty to a Patient: A nurse’s dutyto comply with the standards of nursing practice(§217.11) and not to engage in unprofessionalconduct (§217.12), including administrativedecisions directly affecting a nurse's ability tocomply with that duty.

(5) Good Faith:

(6) Incident-Based Peer Review:Incident-based peer review focuses on determiningif a nurse's actions, be it a single event or multipleevents (such as in reviewing up to 5 minor incidentsby the same nurse within a year's period of time)should be reported to the board, or if the nurse'sconduct does not require reporting because theconduct constitutes a minor incident that can beremediated. The review includes whether externalfactors beyond the nurse's control may havecontributed to any deficiency in care by the nurse,and to report such findings to a patient safetycommittee as applicable.

(7) Minor incident: Conduct by anurse that does not indicate that the nurse'scontinued practice poses a risk of harm to a patientor another person as described in §217.16.

(8) Nursing Peer Review (NPR):Chapter 303 of the Texas Occupations Code.Nurses involved in nursing peer review must complywith the NPR Law.

(9) Nursing Practice Act (NPA):Chapter 301 of the Texas Occupations Code.

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(9) Nursing Practice Act (NPA):Includes chapters 301, 304, and 305Chapter 301 ofthe Texas Occupations Code (TOC) and can onlybe changed by the Texas Legislature. Nurses mustcomply with the NPA.

(10) Patient Safety Committee: Anycommittee established by an association, school,agency, health care facility, or other organization toaddress issues relating to patient safety thatincludesincluding:

(A) the entity's medical staffcomposed of individuals licensed under Subtitle B(Medical Practice Act, Occupations Code(§§151.001 et seq.);

(B) a medical committeeunder Subchapter D, Chapter 161, Health & SafetyCode (§§161.031 - 161.033); or

(C) a multi-disciplinarycommittee, including nursing representation, or anycommittee established by or contracted within thesame entity to promote best practices and patientsafety, may apply as appropriate.

(11) Peer Review: Defined by§303.001(5) of NPR Law (TOC ch. 303) in NursingPeer Review Law (NPR law), contained within theTexas Occupations Code (TOC) §303.001(5), it isas the evaluation of nursing services, thequalifications of a nurse, the quality of patient carerendered by a nurse, the merits of a complaintconcerning a nurse or recommendation regarding acomplaint. The peer review process is one of factfinding, analysis and study of events by nurses in aclimate of collegial problem solving focused onobtaining all relevant information about an eventincluding influence of systems on the event.

(12) Texas Occupations Code(TOC): One of the topical subdivisions or “codes”into which the Texas statutes are organized. TheOccupation Code contains the statutes governingoccupations and professions including the healthprofessions and includes both the NPA and NPRLaw. The Occupations Code can be changed only

Phrase “that includes” could be misread as statingthat only the entities listed in (A), (B) or (C) qualifyas patient safety committees.

Phrase “as appropriate” seems unnecessary andsomewhat confusing.

See comment for (a)(13) below.

Addition is intended to emphasize that role of NPRincludes evaluation of system factors.

Nurses must comply with the NPA.

(10) Patient Safety Committee: Anycommittee established by an association, school,agency, health care facility, or other organization toaddress issues relating to patient safety including:

(A) the entity's medical staffcomposed of individuals licensed under Subtitle BMedical Practice Act, Occupations Code (§§151.001et seq.);

(B) a medical committeeunder Subchapter D, Chapter 161, Health & SafetyCode (§§161.031 - 161.033); or

(C) a multi-disciplinarycommittee, including nursing representation, or anycommittee established by or contracted within thesame entity to promote best practices and patientsafety,

(11) Peer Review: Defined by§303.001(5) of NPR Law (TOC ch. 303) as theevaluation of nursing services, the qualifications of anurse, the quality of patient care rendered by anurse, the merits of a complaint concerning a nurseor recommendation regarding a complaint. The peerreview process is one of fact finding, analysis andstudy of events by nurses in a climate of collegialproblem solving focused on obtaining all relevantinformation about an event including influence ofsystems on the event.

(12) Texas Occupations Code(TOC): One of the topical subdivisions or “codes”into which the Texas statutes are organized. TheOccupation Code contains the statutes governingoccupations and professions including the healthprofessions and includes both the NPA and NPRLaw. The Occupations Code can be changed onlyby the Texas Legislature.

Exhibit 3 - (Rule 217.20)– Page 5

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by the Texas Legislature. One part of the TexasStatutes, or laws. The Nursing Practice Act (NPA)and Nursing Peer Review (NPR) statutes are but afew of the chapters of Texas laws contained withinthe TOC.

(13) Whistleblower Protections:pProtections available to a nurse that prohibitretaliatory action by an employer or other entityforbecause the nurse:

(A) a request made by anursemade a good faith request for safe harbor peerreview under TOC §303.005(c) of the NPR Law(TOC ch. 303);related to invoking safe harborprotections, or

(B) a nurse's refusalrefusedunder TOC §301.352 of the NPA (TOC Ch. 303) toengage in an act or omission relating to patient carethat would constitute grounds for reporting the nurseto the board, that constitutes a minor incident, orthat violates the Nursing Practice Act or board rules;or

(C) a report made by anursemade a report under TOC §301.4025 of theNPA (TOC ch. 301) (report of unsafe practices ofnon-nurse entities), and subsection (i)(2) of thissection, orthat may also be protected underotheranother laws or regulations, concerning thatauthorizes reporting of unsafe practitioners orunsafe patient care practices or conditions.

Protection from retaliatory actionaffects a report made to a licensing agency,accrediting body, regulatory entity, or administrativepersonnel within the facility or organization that thenurse believes has the power to take correctiveaction.

Grammatical changes to fit with stem whether stemis “prohibit retaliatory action ... for” or “prohibitretaliatory action ... because the nurse.”

The way proposed rule formats references to NPAor NPR Law seems to read awkwardly. If decisionis to use different format, then that format will needto be used consistently throughout rule.

Making a separate paragraph and Indenting thissentence makes it part of entire definition and notjust part (C).

(13) Whistleblower Protections:Protections available to a nurse that prohibitretaliatory action by an employer or other entitybecause the nurse:

(A) made a good faithrequest for safe harbor peer review under §303.005(c) of the NPR Law (TOC ch. 303);

(B) refused under §301.352 of the NPA (TOC Ch. 303) to engage inan act or omission relating to patient care that wouldconstitute grounds for reporting the nurse to theboard, that constitutes a minor incident, or thatviolates the Nursing Practice Act or board rules; or

(C) made a report under §301.4025 of the NPA (TOC ch. 301) (report ofunsafe practices of non-nurse entities), subsection(i)(2) of this section, or under another law orregulation that authorizes reporting of unsafepractitioners or unsafe patient care practices orconditions.

Protection from retaliatory actionaffects a report made to a licensing agency,accrediting body, regulatory entity, or administrativepersonnel within the facility or organization that thenurse believes has the power to take correctiveaction.

(b) Purpose. The purpose of this rule is to:(1) define minimum due process to

which a nurse is entitled under incident-based peerreview, to

(2) provide guidance to facilities,agencies, schools, or anyone other persons orentities who utilizes the services of nurses in thedevelopment and application of incident-based peer

Setting out as a list makes easier to read (b) Purpose. The purpose of this rule is to:(1) define minimum due process to

which a nurse is entitled under incident-based peerreview;

(2) to provide guidance to facilities,agencies, schools, or other persons or entities whoutilizes the services of nurses in the developmentand application of incident-based peer review plans;

Exhibit 3 - (Rule 217.20)– Page 6

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review plans, to(3) assure that nurses have

knowledge of the plan, and to ;and(4) provide guidance to the incident-

based peer review committee in its fact findingprocess.

(3) to assure that nurses haveknowledge of the plan; and

(4) to provide guidance to theincident-based peer review committee in its factfinding process.

(c) Applicability of Incident-Based PeerReview. Nursing Peer Review (TOC) §Section303.0015 of the NPR Law (TOC ch. 303) requires aperson who regularly employs, hires or contracts forthe services of ten (10) or more nurses (for peerreview of a RN, at least 5 of the 10 must be RNs) toconduct nursing peer review for purposes of NPA§§301.402(e) (relating to alternate reporting bynurses to peer review), 301.403 (relating to peerreview committee reporting), 301.405(c) (relating topeer review of external factors as part of employerreporting), and 301.407(b) (relating to alternatereporting by state agencies to peer review).

(c) Applicability of Incident-Based PeerReview. Section 303.0015 of the NPR Law (TOCch. 303) requires a person who regularly employs,hires or contracts for the services of ten (10) ormore nurses (for peer review of a RN, at least 5 ofthe 10 must be RNs) to conduct nursing peer reviewfor purposes of NPA §§301.402(e) (relating toalternate reporting by nurses to peer review),301.403 (relating to peer review committeereporting), 301.405(c) (relating to peer review ofexternal factors as part of employer reporting), and301.407(b) (relating to alternate reporting by stateagencies to peer review).

(d) Minimum Due Process. (1) A licensed nurse subject to

incident-based peer review is entitled to minimumdue process under Nursing Peer Review (TOC)§303.002(e)., any Any person or entity thatconducts incident-based peer review must complywith the due process requirements of this sectioneven if theythe person or entity do not utilize thenumber of nurses described by subsectionSubsection (c) of this section.

(2) A facility conducting incident-based peer review shall have written policies andprocedures that, at a minimum, address:

(A) the level of participationof nurse or nurse's representative at an incident-based peer review hearing beyond that required bysubsection Subsection (d)(3)(F) of this section;

(B) confidentiality andsafeguards to prevent impermissible disclosuresincluding written agreement by all parties to abideby Nursing Peer Review Law (TOC) §303.006, and

(d) Minimum Due Process. (1) A licensed nurse subject to

incident-based peer review is entitled to minimumdue process under Nursing Peer Review (TOC)§303.002(e). Any person or entity that conductsincident-based peer review must comply with thedue process requirements of this section even if theperson or entity do not utilize the number of nursesdescribed by Subsection (c).

(2) A facility conducting incident-based peer review shall have written policies andprocedures that, at a minimum, address:

(A) the level of participationof nurse or nurse's representative at an incident-based peer review hearing beyond that required bySubsection (d)(3)(F);

(B) confidentiality andsafeguards to prevent impermissible disclosuresincluding written agreement by all parties to abideby Nursing Peer Review Law (TOC) §303.006,303.007, 303.0075 and Subsection (h) of this rule;

Exhibit 3 - (Rule 217.20)– Page 7

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§303.007, 303.0075 and Subsection (h) of this rule; (C) handling of cases

involving nurses who are impaired or suspected ofbeing impaired by chemical dependency, drug oralcohol abuse, substance abuse/misuse,"intemperate use," mental illness, or diminishedmental capacity in accordance with the NPA (TOC)§301.410, and subsection Subsection (g) of thissection;

(D) reporting of nurses tothe board by incident-based peer review committeein accordance with the NPA (TOC) §301.403, andsubsection Subsection (i) of this section; and

(E) effective date ofchanges to the policies which in no event shall applyto incident-based peer review proceedings initiatedbefore the change was adopted unless agreed to inwriting by the nurse being reviewed.

(3) In order to meet the minimumdue process required by Nursing Peer Review Law(TOC) chapter 303, the nursing peer reviewcommittee must:

(A) comply with themembership and voting requirements as set forth inNursing Peer Review (TOC) §303.003(a) - (d);

(B) exclude from thecommittee, including attendance at the incident-based peer review hearing, any person or personswith administrative authority for personnel decisionsdirectly relating to the nurse. This requirement doesnot exclude a person, who is administrativelyresponsible over the nurse, being incident-basedpeer reviewed from appearing before the incident-based peer review committee to speak as a factwitness;

(C) provide written notice tothe nurse in person or by certified mail at the lastknown address the nurse has on file with the facilitythat:

(i) the nurse'spractice is being evaluated;

(ii) that the

§303.003 consists only of (a)-(d) so can justreference 303.003.

(C) handling of casesinvolving nurses who are impaired or suspected ofbeing impaired by chemical dependency, drug oralcohol abuse, substance abuse/misuse,"intemperate use," mental illness, or diminishedmental capacity in accordance with the NPA (TOC)§301.410, and Subsection (g);

(D) reporting of nurses tothe board by incident-based peer review committeein accordance with the NPA (TOC) §301.403, andSubsection (i); and

(E) effective date ofchanges to the policies which in no event shall applyto incident-based peer review proceedings initiatedbefore the change was adopted unless agreed to inwriting by the nurse being reviewed.

(3) In order to meet the minimumdue process required by Nursing Peer Review Law(TOC) chapter 303, the nursing peer reviewcommittee must:

(A) comply with themembership and voting requirements as set forth inNursing Peer Review (TOC) §303.003;

(B) exclude from thecommittee, including attendance at the peer reviewhearing, any person or persons with administrativeauthority for personnel decisions directly relating tothe nurse. This requirement does not exclude aperson, who is administratively responsible over thenurse, being reviewed from appearing before thecommittee to speak as a fact witness;

(C) provide written notice tothe nurse in person or by certified mail at the lastknown address the nurse has on file with the facilitythat:

(i) the nurse'spractice is being evaluated;

(ii) the incident-

Exhibit 3 - (Rule 217.20)– Page 8

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incident-based peer review committee will meet on aspecified date not sooner than 21 calendar days andnot more than 45 calendar days from date of notice,unless:

(I) theincident-based peer review committee determinesan extended time period (extending the 45 days byno more than an additional 45 days) is necessary inorder to consult with a patient safety committee, oris

(II)otherwise agreed upon by the nurse and incident-based peer review committee.

(iii) includes theinformation required by Paragraph (D). Said noticemust include a written copy of the incident-basedpeer review plan, policies and procedures.

(D) include in the noticerequired by Paragraph (C):Include in the writtennotice:

(i) a description ofthe event(s) to be evaluated in sufficient detail toinform the nurse of the incident, circumstances andconduct (error or omission), including date(s),time(s), location(s), and individual(s) involved. Thepatient/client shall be identified by initials or numberto the extent possible to protect confidentiality, butthe nurse shall be provided the name of thepatient/client;

(ii) the name,address, telephone number of contact person toreceive the nurse's response; and

(iii) a copy of thisrule (§217.19 of this title) and a copy of the facility'sincident-based peer review plan, policies andprocedures.

(E) provide the nurse theopportunity to review, in person or by attorney, thedocuments concerning the event under review, atleast 15 calendar days prior to appearing before thecommittee;

(F) provide the nurse theopportunity to:

It would be possible to combine this (iii) andParagraph (D) below. If so. (iii) would read:

“(iii) includes the following information:(I) [ (D)(i) ](II) [ (D)(ii) ](III) [ (D(iii) ]”

and current Paragraph (D) would be deleted andremaining subdivisions renumbered.

based peer review committee will meet on aspecified date not sooner than 21 calendar daysand not more than 45 calendar days from date ofnotice, unless:

(I) theincident-based peer review committee determinesan extended time period (extending the 45 days byno more than an additional 45 days) is necessary inorder to consult with a patient safety committee, oris

(II)otherwise agreed upon by the nurse and incident-based peer review committee.

(iii) includes theinformation required by Paragraph (D).

(D) include in the noticerequired by Paragraph (C):

(i) a description ofthe event(s) to be evaluated in sufficient detail toinform the nurse of the incident, circumstances andconduct (error or omission), including date(s),time(s), location(s), and individual(s) involved. Thepatient/client shall be identified by initials or numberto the extent possible to protect confidentiality, butthe nurse shall be provided the name of thepatient/client;

(ii) the name,address, telephone number of contact person toreceive the nurse's response; and

(iii) a copy of thisrule (§217.19 of this title) and a copy of the facility'sincident-based peer review plan, policies andprocedures.

(E) provide the nurse theopportunity to review, in person or by attorney, thedocuments concerning the event under review, atleast 15 calendar days prior to appearing before thecommittee;

(F) provide the nurse theopportunity to:

(i) submit a written

Exhibit 3 - (Rule 217.20)– Page 9

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(i) submit a writtenstatement regarding the event under review;

(ii) call witnesses,question witnesses, and be present when testimonyor evidence is being presented;

(iii) be providedcopies of the witness list and written testimony orevidence at least 48 hours in advance ofproceeding;

(iv) make anopening statement to the committee;

(v) ask questions ofthe committee and respond to questions of thecommittee; and

(vi) make a closingstatement to the committee after all evidence ispresented;

(G) conclude complete itsreview no more than fourteen (14) calendar daysfrom after the incident-based peer review hearing, orin compliance with subsection (d)(3)(C)(ii) of thissection relating to consultation with a patient safetycommittee;

(H) provide written notice tothe nurse in person or by certified mail at the lastknown address the nurse has on file with the facilityof the findings of the committee within ten (10)calendar days of when the committee's review hasbeen completed; and

(I) permit the nurse to file awritten rebuttal statement within ten (10) calendardays of the notice of the committee's findings andmake the statement a permanent part of theincident-based peer review record to be includedwhenever the committee's findings are disclosed;

(J 4) An incident-based peer reviewcommittee's determination to report a nurse to theboard cannot be overruled, changed, or dismissed.

(4 5) Nurse's Right ToRepresentation

(A) A nurse shall have a

Terminology “complete” is used in (H)

Seems to be more appropriately numbered asSubdivision (4) of Subsection (d) than as Paragraph(J) of Subdiv. (3)

Renumbered because added a Subdiv. (4)

Use of “section” may be wrong terminology. TexasLegislative Council Drafting Manual using followingbreakdown for sec., subsec., etc:

Section.(a) Subsection

(1) Subdivision(A) Paragraph (i) Subparagraph

(a) Sub-subparagraphTexas Register may have its own terminology. Whatever terminology is used, should be consistentthroughout this rule and with other BON rules.

statement regarding the event under review; (ii) call witnesses,

question witnesses, and be present when testimonyor evidence is being presented;

(iii) be providedcopies of the witness list and written testimony orevidence at least 48 hours in advance ofproceeding;

(iv) make anopening statement to the committee;

(v) ask questions ofthe committee and respond to questions of thecommittee; and

(vi) make a closingstatement to the committee after all evidence ispresented;

(G) complete its review nomore than fourteen (14) calendar days after theincident-based peer review hearing, or incompliance with subsection (d)(3)(C)(ii) of thissection relating to consultation with a patient safetycommittee;

(H) provide written notice tothe nurse in person or by certified mail at the lastknown address the nurse has on file with the facilityof the findings of the committee within ten (10)calendar days of when the committee's review hasbeen completed; and

(I) permit the nurse to file awritten rebuttal statement within ten (10) calendardays of the notice of the committee's findings andmake the statement a permanent part of theincident-based peer review record to be includedwhenever the committee's findings are disclosed;

(4) An incident-based peer reviewcommittee's determination to report a nurse to theboard 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 Subdivision

Exhibit 3 - (Rule 217.20)– Page 10

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right of representation as set out in thissectionSubdivision (4). The These rights set out inthis section are minimum requirements and a facilitymay allow the nurse more representation. Theincident-based peer review process is not a legalproceeding; therefore, rules governing legalproceedings and admissibility of evidence do notapply and the presence of attorneys is not required.

(B) The nurse has the rightto be accompanied to the hearing by a nurse peer oran attorney. Representatives attending the incident-based peer review hearing must comply with thefacility's incident-based peer review policies andprocedures regarding participation beyondconferring with the nurse.

(C) If either the facility ornurse will have an attorney or representativepresent at the incident-based peer review hearing inany capacity, the facility or nurse must notify theother at least seven (7) calendar days before thehearing that they will have an attorney orrepresentative attending the hearing and in whatcapacity.

(D) Notwithstanding anyother provisions of these rules, if an attorneyrepresenting the facility or incident-based peerreview committee is present at the incident-basedpeer review hearing in any capacity, includingserving as a member of the incident-based peerreview committee, the nurse is entitled to "parity ofparticipation of counsel." "Parity of participation ofcounsel" means that the nurse's attorney is able toparticipate to the same extent and level as thefacility's attorney; e.g., if the facility's attorney canquestion witnesses, the nurse's attorney must havethe same right.

(5 6) A nurse whose practice isbeing evaluated may properly choose not toparticipate in the proceeding after the nurse hasbeen notified under subsection (d)(3)(HC) of thissection. Nursing Peer Review (TOC) §303.002(d)prohibits nullifying by contract any right a nurse has

Renumbered because added a Subdiv. (4)

(H) appears to be incorrect reference.Content of sentence moved to a new Subdiv. (7)since seems more appropriate to make a separatesubdivision applicable to entire Subsec. (d)

Moved form Subdiv (6)

(5). These rights are minimum requirements and afacility may allow the nurse more representation.The incident-based peer review process is not alegal proceeding; therefore, rules governing legalproceedings and admissibility of evidence do notapply and the presence of attorneys is not required.

(B) The nurse has the rightto be accompanied to the hearing by a nurse peer oran attorney. Representatives attending the incident-based peer review hearing must comply with thefacility's incident-based peer review policies andprocedures regarding participation beyondconferring with the nurse.

(C) If either the facility ornurse will have an attorney or representativepresent at the incident-based peer review hearing inany capacity, the facility or nurse must notify theother at least seven (7) calendar days before thehearing that they will have an attorney orrepresentative attending the hearing and in whatcapacity.

(D) Notwithstanding anyother provisions of these rules, if an attorneyrepresenting the facility or incident-based peerreview committee is present at the incident-basedpeer review hearing in any capacity, includingserving as a member of the incident-based peerreview committee, the nurse is entitled to "parity ofparticipation of counsel." "Parity of participation ofcounsel" means that the nurse's attorney is able toparticipate to the same extent and level as thefacility's attorney; e.g., if the facility's attorney canquestion witnesses, the nurse's attorney must havethe same right.

(6) A nurse whose practice is beingevaluated may properly choose not to participate inthe proceeding after the nurse has been notifiedunder subsection (d)(3)(C) of this section. If a nurseelects not to participate in incident-based peerreview, the nurse waives any right to procedural dueprocess under TOC §303.002 and Ssubsection (d)

Exhibit 3 - (Rule 217.20)– Page 11

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under the incident-based peer review process. If anurse elects not to participate in incident-based peerreview, the nurse waives any right to procedural dueprocess under TOC §303.002 and subsectionSubsection (d) of this section.

(7) As provided by §303.002(d) ofthe NPR Law (TOC ch. 303) a right a nurse hasunder this Subsection (d) cannot be nullified bycontract.

(7) As provided by §303.002(d) ofthe NPR Law (TOC ch. 303) a right a nurse hasunder this Subsection (d) cannot be nullified bycontract.

(e) Use of Informal Work Group InIncident Based Peer Review.

(1) A facility may choose to initiatean informal review process utilizing a workgroup ofthe nursing incident-based peer review committeeprovided there are written policies for the informalworkgroup that require:

(A1) the nurse to be informed ofhow the informal workgroup will function, and toconsent, in writing, to the use of an informalworkgroup. A nurse does not waive any right toincident-based peer review by accepting or rejectingthe use of an informal workgroup;

(B2) if the informal workgroupbelieves that a practice violation has occurred andsuspects that the nurse's practice is impaired bychemical dependency or diminished mentalcapacity, the committee chair must be notified todetermine if peer review should be terminated andthe nurse reported to the board or a board-approvedpeer assistance program as required by Subsec.(g);

(C3) the informal workgroup tocomply with the membership and votingrequirements of subsection Subsections (d)(3)(A)and (B) of this section;

(D4) the nurse be provided theopportunity to meet with the informal workgroup;

(E5) the nurse to have the right toreject any decision of the informal workgroup and tothen have his/her conduct reviewed by the incident-based peer review committee, in which eventmembers of the informal workgroup shall not

There is no (2) so (1) needs to be the stem and (A)-(G) renumbered as (1)-(7)

Makes consistent with Subsec. (g)

(e) Use of Informal Work Group InIncident Based Peer Review. A facility maychoose to initiate an informal review processutilizing a workgroup of the nursing incident-basedpeer review committee provided there are writtenpolicies for the informal workgroup that require:

(1) the nurse to be informed of howthe informal workgroup will function, and to consent,in writing, to the use of an informal workgroup. Anurse does not waive any right to incident-basedpeer review by accepting or rejecting the use of aninformal workgroup;

(2) if the informal workgroupsuspects that the nurse's practice is impaired bychemical dependency or diminished mentalcapacity, the committee chair must be notified todetermine if peer review should be terminated andthe nurse reported to the board or a board-approvedpeer assistance program as required by Subsec.(g);

(3) the informal workgroup tocomply with the membership and votingrequirements of Subsections (d)(3)(A) and (B);

(4) the nurse be provided theopportunity to meet with the informal workgroup;

(5) the nurse to have the right toreject any decision of the informal workgroup and tothen have his/her conduct reviewed by the incident-based peer review committee, in which eventmembers of the informal workgroup shall notparticipate in that determination; and

Exhibit 3 - (Rule 217.20)– Page 12

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participate in that determination; and (F6) ratification by the incident-

based peer review committee chair person of anydecision made by the informal workgroup. If thechair person disagrees with a determination of theinformal workgroup to remediate a nurse for one ormore minor incidents, the chair person shallconvene the full peer review committee to reviewthe conduct in question.

(G7) the peer review chair personmust communicate any decision of the informal workgroup to the CNO.

(6) ratification by the incident-basedpeer review committee chair person of any decisionmade by the informal workgroup. If the chair persondisagrees with a determination of the informalworkgroup to remediate a nurse for one or moreminor incidents, the chair person shall convene thefull peer review committee to review the conduct inquestion.

(7) the peer review chair personmust communicate any decision of the informalwork group to the CNO.

(f) Exclusions to Minimum Due ProcessRequirements.

TNA is making substantive comments on thisSubsection. See Exhibit 1

(f) Exclusions to Minimum Due ProcessRequirements.

(g) Incident-Based Peer Review of aNurse's Impaired Practice/Lack of Fitness.

TNA is making substantive comments on thisSubsection. See Exhibit 1

(g) Incident-Based Peer Review of aNurse's Impaired Practice/Lack of Fitness.

(h) Confidentiality of Proceedings. (1) Confidentiality of information

presented to and/or considered by the incident-based peer review committee shall be maintainedand the information not disclosed except asprovided by Nursing Peer Review Law(TOC)§§303.006, 303.007, and §303.0075.Disclosure/discussion by a nurse with the nurse'sattorney is proper because the attorney is bound tothe same confidentiality requirements as the nurse.

(2) Sharing of Information: Inaccordance with Nursing Peer Review Law (TOC)§303.0075, a nursing incident-based peer reviewcommittee and any patient safety committeeestablished by or contracted with the same entity,may share information.

(A) A record ordetermination of a patient safety committee, or acommunication made to a patient safety committee,is not subject to subpoena or discovery and is notadmissible in any civil or administrative proceeding,regardless of whether the information has beenprovided to a nursing peer review committee.

(AB) The privileges under

Don’t use headings for other subdivisions.

§303.0075 just uses established.

Making second sentence a Paragraph (A) seemsbetter way to organize..

(h) Confidentiality. (1) Confidentiality of information

presented to and/or considered by the incident-based peer review committee shall be maintainedand the information not disclosed except asprovided by Nursing Peer Review Law (TOC)§§303.006, 303.007, and §303.0075.Disclosure/discussion by a nurse with the nurse'sattorney is proper because the attorney is bound tothe same confidentiality requirements as the nurse.

(2) In accordance with Nursing PeerReview Law (TOC) §303.0075, a nursing incident-based peer review committee and any patient safetycommittee established by the same entity, mayshare information.

(A) A record ordetermination of a patient safety committee, or acommunication made to a patient safety committee,is not subject to subpoena or discovery and is notadmissible in any civil or administrative proceeding,regardless of whether the information has beenprovided to a nursing peer review committee.

(B) The privileges under

Exhibit 3 - (Rule 217.20)– Page 13

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this subsection may be waived only through awritten waiver signed by the chair, vice chair, orsecretary of the patient safety committee.

(BC) This section does notaffect the application of Nursing Peer Review Law(TOC) §303.007 (relating to disclosures by peerreview committee) to a nursing peer reviewcommittee.

(CD) A committee thatreceives information from another committee shallforward any request to disclose the information tothe committee that provided the information.

(3) A CNO shall assure that policiesare in place relating to sharing of information anddocuments with the between an iIncident- bBasedNursing pPeer rReview committee and a patientsafety committee(s) that at a minimum, address:

(A) separation ofconfidential Incident-Based Nursing Peer Reviewinformation from the nurse's human resource file;

(A B) methods in whichshared committee communications and documentsare labelled labeled and maintained as to whichcommittee originated the documents orcommunications;

(B) separation ofconfidential information under incident-based peerreview from the nurse's human resource file;

(C) the confidential andseparate nature of incident-based peer review andpatient safety committees proceedings as wellasincluding shared information and documents thatare shared with incident-based peer review, ; and

(D) the treatment of nurseswho violate the that violations of said policies aresubject to including when a violation may result in anurse being reported to the board or a nursing peerreview,

Subdiv. (3) may need wordsmithing to make clearer.

Subdivisions (A) and (B) are switched to put (A), (B)and (C) in more logical order.

(C) is difficult to read

Reads better if make a new Paragraph (D)

this subsection may be waived only through awritten waiver signed by the chair, vice chair, orsecretary of the patient safety committee.

(C) This section does notaffect the application of Nursing Peer Review Law(TOC) §303.007 (relating to disclosures by peerreview committee) to a nursing peer reviewcommittee.

(D) A committee thatreceives information from another committee shallforward any request to disclose the information tothe committee that provided the information.

(3) A CNO shall assure that policiesare in place relating to sharing of information anddocuments between an Incident- Based NursingPeer Review Committee and a patient safetycommittee(s) that at a minimum, address:

(A) separation ofconfidential Incident-Based Nursing Peer Reviewinformation from the nurse's human resource file;

( B) methods in whichshared communications and documents are labeledand maintained as to which committee originatedthe documents or communications;

(C) the confidential andseparate nature of incident-based peer review andpatient safety committees proceedings includingshared information and documents; and

(D) the treatment of nurseswho violate the policies including when a violationmay result in a nurse being reported to the board ornursing peer review,

(i) Committee Responsibility to Evaluateand Report.

(1) In evaluating a nurse's conduct,the incident-based peer review committee shall

(i) Committee Responsibility to Evaluateand Report.

(1) In evaluating a nurse's conduct,the incident-based peer review committee shall

Exhibit 3 - (Rule 217.20)– Page 14

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review the evidence to determine the extent towhich any deficiency in care by the nurse was theresult of deficiencies in the nurse's judgment,knowledge, training, or skill rather than other factorsbeyond the nurse's control. A determination that adeficiency in care is attributable to a nurse must bebased on the extent to which the nurse's conductwas the result of a deficiency in the nurse'sjudgment, knowledge, training, or skill.

(2) A An incident-based peer reviewcommittee shall consider whether a nurse's conductconstitutes one or more minor incidents under§217.16, Minor Incidents, of this title. In accordancewith this that rule, the incident-based peer reviewcommittee may determine that the nurse:

(A) can be remediated tocorrect the deficiencies identified in the nurse'sjudgment, knowledge, training, or skill, or

(B) should be reported tothe board for either a pattern of practice that fails tomeet minimum standards, or for one or more eventsthat the incident-based peer review committeedetermines cannot be categorized as a minorincident(s).

(3) Report Not Required: A nursingincident-based nursing peer review committee is notrequired to submit a report to the board if:

(A) the committeedetermines that the reported conduct was a minorincident that is not required to be reported inaccordance with provisions of §217.16, MinorIncidents, of this title; or

(B) the nurse has alreadybeen reported to the board under NPA (TOC)§301.405(b) (employer reporting requirements).

(4) If a incident-based peer review the committee determines it is required to report anurse finds that a nurse has engaged in conductsubject to reporting to the board, the committeeshall submit to the board a written, signed report

Headings are not used for other subdivisions.

“Conduct subject to reporting” may not be actuallyreportable, e.g,, nurse can be remediated.

review the evidence to determine the extent towhich any deficiency in care by the nurse was theresult of deficiencies in the nurse's judgment,knowledge, training, or skill rather than other factorsbeyond the nurse's control. A determination that adeficiency in care is attributable to a nurse must bebased on the extent to which the nurse's conductwas the result of a deficiency in the nurse'sjudgment, knowledge, training, or skill.

(2) An incident-based peer reviewcommittee shall consider whether a nurse's conductconstitutes one or more minor incidents under§217.16, Minor Incidents, of this title. In accordancewith that rule, the committee may determine that thenurse:

(A) can be remediated tocorrect the deficiencies identified in the nurse'sjudgment, knowledge, training, or skill, or

(B) should be reported tothe board for either a pattern of practice that fails tomeet minimum standards, or for one or more eventsthat the incident-based peer review committeedetermines cannot be categorized as a minorincident(s).

(3) A incident-based nursing peerreview committee is not required to submit a reportto the board if:

(A) the committeedetermines that the reported conduct was a minorincident not required to be reported in accordancewith provisions of §217.16, Minor Incidents, of thistitle; or

(B) the nurse has alreadybeen reported to the board under NPA (TOC)§301.405(b) (employer reporting requirements).

(4) If the committee determines it isrequired to report a nurse to the board, thecommittee shall submit to the board a written,signed report that includes:

Exhibit 3 - (Rule 217.20)– Page 15

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that includes: (A) the identity of the nurse; (B) a description of the

conduct subject to reporting; (C) a description of any

corrective action taken against the nurse; (D) a recommendation as to

whether the board should take formal disciplinaryaction against the nurse, and the basis for therecommendation;

(E) the extent to which anydeficiency in care provided by the reported nursewas the result of a factor beyond the nurse'scontrol,; and

(F) any additionalinformation the board requires.

(5) If an incident-based peer reviewcommittee determines that a deficiency in care bythe nurse was the result of a factor(s) beyond thenurse's control, in compliance with TOC §303.011(b)(related to required peer review committee reportwhen external factors contributed to a nurse'sdeficiency in care), the committee must submit areport to the applicable patient safety committee, orto the CNO if there is no patient safety committee. Apatient safety committee must report its findingsback to the incident-based peer review committee.

(6) An incident-based peer reviewcommittee is not required to withhold it's itsdetermination of the nurse being incident-basedpeer reviewed, pending feedback from a patientsafety committee, unless the committee believesthat a determination from a patient safety committeeis necessary in order for the incident-based peerreview committee to determine if the nurse'sconduct is reportable.

(A) If an incident-basedpeer review committee finds that factors outside thenurse's control contributed to a nurse'serrordeficiency in care, in addition to reporting to apatient safety committee, the incident-based peer

“Deficiency in care” is terminology used in the NPAand the deficiency may not necessarily relate to anerror by the nurse.

(A) the identity of the nurse; (B) a description of the

conduct subject to reporting; (C) a description of any

corrective action taken against the nurse; (D) a recommendation as

to whether the board should take formal disciplinaryaction against the nurse, and the basis for therecommendation;

(E) the extent to which anydeficiency in care provided by the reported nursewas the result of a factor beyond the nurse's control;and

(F) any additionalinformation the board requires.

(5) If an incident-based peer reviewcommittee determines that a deficiency in care bythe nurse was the result of a factor(s) beyond thenurse's control, in compliance with TOC§303.011(b) (related to required peer reviewcommittee report when external factors contributedto a nurse's deficiency in care), the committee mustsubmit a report to the applicable patient safetycommittee, or to the CNO if there is no patientsafety committee. A patient safety committee mustreport its findings back to the incident-based peerreview committee.

(6) An incident-based peer reviewcommittee is not required to withhold itsdetermination of the nurse being incident-basedpeer reviewed, pending feedback from a patientsafety committee, unless the committee believesthat a determination from a patient safety committeeis necessary in order for the incident-based peerreview committee to determine if the nurse’sconduct is reportable.

(A) If an incident-basedpeer review committee finds that factors outside thenurse's control contributed to a deficiency in care, in

Exhibit 3 - (Rule 217.20)– Page 16

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review committee may also make recommendationsfor the nurse, up to and including reporting to theboard.

(B) an An incident-basedpeer review committee may extend the time line forcompleting the incident-based peer review process(extending the 45 days by no more than anadditional 45 days) if the committee membersbelieve they need input from a patient safetycommittee. The incident-based peer reviewcommittee must complete the incident-based peerits review of the nurse within this 90-day time frame.

(7) A An incident-based peer reviewcommittee's determination to report a nurse to theboard cannot be overruled, changed, or dismissed.

addition to reporting to a patient safety committee,the incident-based peer review committee may alsomake recommendations for the nurse, up to andincluding reporting to the board.

(B) An incident-based peerreview committee may extend the time line forcompleting the incident-based peer review process(extending the 45 days by no more than anadditional 45 days) if the committee membersbelieve they need input from a patient safetycommittee. The incident-based peer reviewcommittee must complete its review of the nursewithin this 90-day time frame.

(7) An incident-based peer reviewcommittee's determination to report a nurse to theboard cannot be overruled, changed, or dismissed.

(j) Nurse's Duty to Report. TNA is making substantive comments on thisSubsection. See Exhibit 1.

(j) Nurse's Duty to Report.

(k) State Agency Duty to Report. A stateagency that has reason to believe that a nurse hasengaged in conduct subject to reporting shall reportthe nurse in writing to:

(1) the board; or(2) the applicable nursing peer

review committee in lieu of reporting to the board.

(l) Integrity of Incident-Based PeerReview Process.

(1)

(2) The CNO of a facility,association, school, agency, or of any other settingthat utilizes the services of nurses is responsible forknowing the requirements of this rule and for takingreasonable steps to assure that incident-based peerreview is implemented and conducted in compliancewith the NPA, Nursing Peer Review, and this rule.

(3) A determination by an incident-based peer review committee, a CNO, or anindividual nurse to report a nurse to the boardcannot be overruled, dismissed, changed, or

TNA is making substantive comments on thisSubdivision (1). See Exhibit 1

(l) Integrity of Incident-Based PeerReview Process.

(1)

(2) The CNO of a facility,association, school, agency, or of any other settingthat utilizes the services of nurses is responsible forknowing the requirements of this rule and for takingreasonable steps to assure that incident-based peerreview is implemented and conducted in compliancewith the NPA, Nursing Peer Review, and this rule.

(3) A determination by an incident-based peer review committee, a CNO, or anindividual nurse to report a nurse to the boardcannot be overruled, dismissed, changed, or

Exhibit 3 - (Rule 217.20)– Page 17

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reversed. An incident-based peer review committee,CNO, and individual nurse each have a separateresponsibility to protect the public by reporting anurse to the board as set forth in NPA §301.402,§301.405, §217.11(1)(K), and this rule.

reversed. An incident-based peer review committee,CNO, and individual nurse each have a separateresponsibility to protect the public by reporting anurse to the board as set forth in NPA §301.402,§301.405, §217.11(1)(K), and this rule.

(m) Reporting Conduct of otherPractitioners or Entities/ WhistleblowerProtections.

(1) This section does not expandthe authority of any incident-based peer reviewcommittee or the board to make determinationsoutside the practice of nursing.

(2) In a written, signed report to theappropriate licensing board or accrediting body, andin accordance with §301.4025 (report of unsafepractices of non-nurse entities), a nurse may reporta licensed health care practitioner, agency, or facilitythat the nurse has reasonable cause to believe hasexposed a patient to substantial risk of harm as aresult of failing to provide patient care that conformsto:

(A) minimum standards ofacceptable and prevailing professional practice, fora report made regarding a practitioner; or

(B) statutory, regulatory, oraccreditation standards, for a report made regardingan agency or facility.

(i) A nurse mayreport to the nurse's employer or another entity atwhich the nurse is authorized to practice anysituation that the nurse has reasonable cause tobelieve exposes a patient to substantial risk of harmas a result of a failure to provide patient care thatconforms to minimum standards of acceptable andprevailing professional practice or to statutory,regulatory, or accreditation standards. For purposesof this subsection, an employer or entity includes anemployee or agent of the employer or entity.

(ii) A person maynot suspend or terminate the employment of, orotherwise discipline or discriminate against, aperson who reports, without malice, under this Makes remedies explict.

(m) Reporting Conduct of otherPractitioners or Entities/ WhistleblowerProtections.

(1) This section does not expandthe authority of any incident-based peer reviewcommittee or the board to make determinationsoutside the practice of nursing.

(2) In a written, signed report to theappropriate licensing board or accrediting body, andin accordance with §301.4025 (report of unsafepractices of non-nurse entities), a nurse may reporta licensed health care practitioner, agency, orfacility that the nurse has reasonable cause tobelieve has exposed a patient to substantial risk ofharm as a result of failing to provide patient carethat conforms to:

(A) minimum standards ofacceptable and prevailing professional practice, fora report made regarding a practitioner; or

(B) statutory, regulatory, oraccreditation standards, for a report made regardingan agency or facility.

(i) A nurse mayreport to the nurse's employer or another entity atwhich the nurse is authorized to practice anysituation that the nurse has reasonable cause tobelieve exposes a patient to substantial risk of harmas a result of a failure to provide patient care thatconforms to minimum standards of acceptable andprevailing professional practice or to statutory,regulatory, or accreditation standards. For purposesof this subsection, an employer or entity includes anemployee or agent of the employer or entity.

(ii) A person maynot suspend or terminate the employment of, orotherwise discipline or discriminate against, aperson who reports, without malice, under this

Exhibit 3 - (Rule 217.20)– Page 18

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section. A violation of this subsection is subject to§301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual also may file acomplaint with an appropriate licensingagency.(retaliatory action prohibited).

section. A violation of this subsection is subject to§301.413 that provides a nurse or individualretaliated against a right to file suit to recoverdamages. The nurse or individual also may file acomplaint with an appropriate licensing agency.

7600 BURNET RD. STE. 440, AUSTIN, TX 78757 PH. 512.452.0645 FAX 512.452.0648 WWW.TEXASNURSES.ORG

THE PROFESSIONAL ASSOCIATION OF REGISTERED NURSES Texas Affiliate of the American Nurses Association

DELIVERED VIA EMAIL TO: joy.sparks@bon.state.tx.us;

carol.marshall@bon.state.tx.us January 15, 2008 Carol Marshal Lead Nurse Consultant Texas Board of Nursing 333 Guadalupe, Ste 3-460 Austin, Texas 78701 Joy Sparks Assistant General Counsel Texas Board of Nursing 333 Guadalupe, Ste 3-460 Austin, Texas 78701 Re: Re-Proposed Rules 217.19 (Incident-Based Nursing Peer Review) and 217.20 (Safe

Harbor Nursing Peer Review) as Posted on BON Website for Agenda Item 6.8, January 2008 BON Meeting,.

Dear Ms. Marshal and Ms. Sparks: TNA’s Governmental Affairs Committee (GAC) held a conference call on 1/14 to discuss re-proposed Rules 217.19 and 217.20 as posted on the BON website for Agenda Item 6.8, BON January 2008 meeting. With the few exceptions set out below, GAC supports the re-proposed rules. TNA would hope the BON would incorporate these suggested changes into the re-proposed rules before they are published in the Texas Register. A. Incident-Based Nursing Peer Review (Rule 217.19) TNA does not have requested changes. B. Safe Harbor Nursing Peer Review (Rule 217.20) 1. 217.20(a)(1) Definition of Assignment.

TNA requests the phrase “nurse’s licensure responsibilities” in last sentence of definition be replaced with “nurse’s assignment.”

G:\BOARD\2008\January2008\6-8-C2-supp.doc Saved 1/15/2008

GAC feels 1) the use of “nurse’s licensure responsibilities” introduces new terminology into the rule that is not used elsewhere, 2) that nurses do not agree on what “nurse’s licensure responsibilities” means in the context of this definition, and 3) using “nurse’s assignment” is more understandable and more consistent with rest of rule. With this change definition would read:

(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. Rule 217.20(d)(1) Invoking Safe Harbor.

TNA requests that a (C) be added that reads:

C) when the nurse refuses to engage in the requested conduct or assignment;

This language was in the language TNA recommended in its comments and also tracks the re-proposed wording in 217.20(e)(1)(B). GAC believes that without (C), the rule fails to address the situation in which the assignment (or requested conduct) has not really changed but the nurse’s perception or understanding of the level of nursing care does after the nurse has begun the assignment. GAC believes that it is in the interest of patient safety that a nurse be able to request Safe Harbor in this situation. The BON staff’s responses to changes do not address the omission of TNA’s recommended C), and re-proposed (e)(1)(B) does include C) so its omission in (d)(1) may be an oversight. The re-proposed rules change the language of (d)(1)(B) and in Subsec. (e)(1)(B), change the wording in the stem from “... and at one of the following times:” to “... and at any of the following times:” TNA agrees with these changes. With these changes (d)(1) would track the language currently in (e)(1) and read:

(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.

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3. 217.20(d)(2)-(4)Forms Used to Invoke Safe Harbor.

TNA supports re-proposed rule language

TNA had suggested substantial revisions but its comments were based on there being three forms – Quick Request, End of Work Period Detailed Account and BON-Developed Comprehensive Form (eight pages). TNA’s understanding is that the BON’s intent is to have only two forms – BON Quick Request Form and a new BON Comprehensive Form. The new BON Comprehensive Form will contain content for end of work period detailed account.

Based on this understanding, re-proposed rules appear to represent desirable simplification and GAC supports. While the current BON Comprehensive Form did set out a complete process that would be helpful if followed, the only thing nurses say about the form is that it an “eight page form.”

4. 217.20(d)(5). Process to be followed if do not use BON Forms.

TNA requests (d)(5) be deleted. The re-proposed (d)(5) reads:

(5) If the nurse does not use the BON Quick Request and Comprehensive Request Forms to invoke Safe Harbor, the facility and nurse must follow the Safe Harbor process as outlined in this rule.

With the changes in the BON forms, GAC feels (d)(5) is unnecessary and more confusing than helpful. It is always true that the nurses involved must follow the process outlined in Rule 217.20 whether use the BON form or not. A BON form cannot override a BON rule. What the forms do is provide assistance to the nurse in actually complying with the required process. Finally, unlike current rules, the revised rules include the process to be followed and the new BON Comprehensive Form will not set out the process in detail as does the current website form.

5. Rule 217.20(e)(3). Protections from retaliation if CNO decides not to follow Peer Review Committee’s determination as to nurse’s duty.

TNA requests the phrase “If retaliated against,” be added at beginning of first sentence. Re-proposed Subsection (e)(3) reads

(3) Section 301.413 of the 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.

GAC believes that the first sentence lacks a context so is difficult to read and understand. Adding the phrase “If retaliated against,” adds the necessary context.

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With this change (e)(3) would read:

(3) If a nurse is retaliated against, Section 301.413 of the 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.

6. 217.20(e)(4). Civil Liability if a patient is injured pending a Safe Harbor Request. See Attachment Page 7.

TNA requests the phrase “civil action” be replaced with “civil action for patient injury”

The re-proposed rule reads: BON proposes that Section (e)(4) read:

(e) Safe Harbor Protections (4) Safe Harbor protections do not apply to any civil action that may result

from the nurse’s practice.

Although this does not represent any change from the rules as originally proposed and TNA did not comment on, GAC feels that the sentence lacks context and that adding “for patient injury” will add this context. With this change (e)(4) would read:

(4) Safe Harbor protections do not apply to any civil action for patient injury that may result from the nurse’s practice.

7. 217.20(g) Process If Nurse Does Not Engage in Conduct Pending Nursing Peer Review.

TNA supports re-proposed rule language.

GAC feels that the re-proposed language is an improvement over any of the prior language on this issue and strongly supports the BON staff rewrite.

8. 217.20(i)(4)(B). CNO not following nursing peer review committee’s determination.

TNA requests a sentence be added to (4)(B) that reads

(B) . . . The nurse’s legal protections from retaliation for requesting Safe Harbor or from refusing to engage in conduct that violates the NPA or BON rules is not negated by the CNO’s or nurse administrator’s decision.

TNA had suggested a rewording of the last sentence of (i)(4)(B) and the re-proposed rules deletes the sentence. The sentence tracks the language in 303.005((d) that reads “This subsection does not affect the protections provided by Subsection (c)(1) or section 301.352.” GAC believes it important the CNO/administrator and the nurse both realize that the CNO’s/administrator’s decision does not either negate the nursing peer review

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committee’s determination nor does it negate the nurse’s protections from retaliation for requesting Safe Harbor or refusing to engage in conduct that would violate the NPA or BON rules. Without the addition of a qualifying language, (i)(4)(B) can give the false impression that the CNO/administrator can override the nursing peer review committee and if so, the nurse loses all protection from retaliation and the right to refuse to engage in the conduct if convinced that it violates the NPA or BON rule. With this change (i)(4)(B) would read:

If a nurse requests a Safe Harbor Peer Review determination under Nursing Peer Review Law (TOC) §303.005(b), and refuses to engage in the requested conduct or assignment pending the safe harbor peer review, the determination of the safe harbor 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, The determinations of the committee are not binding if the CNO or nurse administrator believes in good faith that the safe harbor peer review committee incorrectly determined a nurse’s duty. The nurse’s legal protections from retaliation for requesting Safe Harbor or from refusing to engage in conduct that violates the NPA or BON rules are not negated by the CNO’s or nurse administrator’s decision.

If you have any questions about these requested changes, please call me. TNA appreciates the effort that you and other BON staff have been devoted to making these rules much more useable rules for nurses. Respectfully submitted,

James H. Willmann, JD General Counsel and Director Governmental Affairs

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Agenda Item 6.8January 2008

Prepared by C. Marshall & J. Sparks

Attachment D: Response to Comments Not Suggesting Specific Language

Changes to Peer Review Rule 217.19 Incident-Based Peer Review and/or 217.20 Safe Harbor Peer Review

(1) Multiple concerns about the potential impact of the definitions of “good faith” and “bad faith”(same inboth rules) submitted in the attached comments received. Please see re-proposed rules foramendments to these definitions, and the addition of a definition of “malice.” Staff believe thesuggested changes to the proposed definitions address the concerns raised in multiple comments.

(2) Two comments requested clarification and a definition for what constitutes a “practice violation. Alsorequested was how this relates to minor incidents and “conduct subject to reporting.”

Staff Response: BON staff appreciate the need for such clarification, however it would be potentiallytoo restrictive to attempt to define specific parameters within rule language, and would no doubt add tothe length and complexity of §217.19. The endless variety of situations, practice settings, and individualand system factors would make it difficult, if not impossible, to make a list of all or even most of thepossible types of practice examples that could potentially constitute violations of either rules 217.11 or217.12, or other sections of the NPA or board rules.

SB993 clarified language in NPA 301.401 addressing “conduct subject to reporting.” Two of the rulesthat compliment this section of the statute and that are applicable to nursing practice in any setting areRules 217.11 Standards of Nursing Practice and 217.12 Unprofessional Conduct. Both rules still fitwell within the new statutory criteria. Section §301.452 Grounds for Disciplinary Action provides furtherstatutory basis for rules 217.11 and 217.12.

As explained in Rule 217.16 Minor Incidents, there are clearly errors that do not rise to the level ofrequiring a report to the board. This rule was last revised 5/17/06. Section 217.16(c) addressesexclusion criteria for what can be considered a minor incident. An error that contributed to a patient’sdeath, for example, can never be considered a minor incident. Criteria in §217.16(d) addresses when anurse would be reportable to the board. As stated in proposed §217.19(i)(2), applying §217.16 to anincident-based peer review is necessary in order for the peer review committee to accurately make it’sdetermination regarding reporting or not reporting the nurse.

Additional board rules and resource documents that may be applicable to situations being peerreviewed, and may also be important for the individual nurse to review in determining if a report to theBON is required include: §213.27 Good Professional Character §213.29 Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility

and Disciplinary Matters Under the Nursing Practice section of the BON web page:

Board Position Statements Documents listed under“Scope of Practice” (including the Six-Step Decision-Making

Model for Determining Nursing Scope of Practice)

Under Disciplinary Action:

the Board’s Disciplinary Sanction Policies

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Staff feel these questions would be an excellent addition to Peer Review FAQs on the new rules.

(3) One comment asked for definitions of “intemperate use” and “diminished mental capacity.” A relatedcomment asked if there was a difference in reporting responsibility for a nurse or a peer reviewcommittee related to a nurse who is impaired w/no known practice violation vs. a nurse who is impairedwith a known practice violation.

Staff Response: In the re-proposed incident-based peer review rule 217.19, the reportingrequirements for a nurse who is impaired with and without a known practice violation are noted in217.19(g)(1)(A) and (B).

In accordance with NPA (TOC) 301.401(1)(B), 301.410, and rule (TAC) 217.11(1)(K)(v), a nurse isrequired to report another nurse who is believed to be impaired by reason of chemical dependency,drug or alcohol abuse, or diminished mental capacity. Unprofessional conduct under Rule 217.12further addresses behaviors indicating possible impairment that relate to the practice of nursing insections (8), (9), and (10). Whether or not there is a practice violation, a nurse who is believed to becognitively impaired is never a minor incident.

Rule 213.29 addresses “intemperate use” and “lack of fitness” related to the practice of nursing.Intemperate use is a generic term widely used in regulatory language with the general meaning ofexcessively engaging in self-indulgent activities, typically referring to excessive use of intoxicatingsubstances. As the Board’s mission is to protect the public, the BON is concerned about the risk ofharm to a patient when the nurse’s ability to make accurate assessments and take timely intervention isimpaired to any degree.

The title to NPA §301.410 was revised by HB2426 to now read as “Report Regarding Impairment byChemical Dependency, Mental Illness, or Diminished Mental Capacity.” Only the latter term was addedto the previous title for this section of the statute. As with the already existing terms, the Legislature didnot define the term “diminished mental capacity.” Because concerns of intemperate use, mentalillness, and diminished mental capacity may involve medical diagnosis and treatment, the Board cannotprescriptively define these terms in rule language. This is also why the Board often requires forensicevaluation by an approved medical professional to assist the Board in determining a nurse’s ability topractice in compliance with the NPA and Board rules.

Proposed rule 217.19 allows for the possibility that an incident-based peer review committee couldbegin it’s fact-finding mission only to discover that the error under review was related to a nurse’simpaired practice. For example, a failure to document could be found to be misappropriation ofnarcotics for personal use/abuse while on duty.

The Sunset Commission mandated changes through the Legislature in HB2426 requiring that allnurses found to have practice violations plus impairment be reported to the BON–not to the Texas PeerAssistance Program for Nurses (TPAPN) as has been allowed in the past.

The risk to patient safety when a nurse is practicing, or potentially practicing while impaired physicallyand/or mentally is well appreciated by the public. The Sunset Commission believed it imperative thatthe BON be aware of and be responsible for determining appropriate BON action to assure publicsafety.

This is but one example of how laws can and do change, sometimes becoming more rigorous becauseof the patterns of errors/public endangerment that have been found to be related to given conditionsover time. Greater public concern with regard to impaired nurses and nurses with criminal backgroundsare both examples of how and why recent legislative sessions have led the board to implement ruleswith heightened criteria to obtain, retain, or regain nursling licensure.

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(4) One comment asked re: §217.19(c) “Use of Informal Work Group,” if it would be permissible to use aninformal work group to conduct initial review of any report to incident-based peer review or only conductthat appears to be a minor incident? Can the informal work group conduct an initial review of externalfactors after a report of a nurse to the board has already occurred?

Staff Response: The questions relating to use of an Informal Work Group of the peer reviewcommittee would also relate to section (j) in Rule 217.20 (also relating to use of Informal Work Groups).

If not specifically prohibited in rule language or in statute, it would be up to facility policy to determinehow to utilize the informal work group. As discussed in the historical perspective, part of the intent ofpermitting utilization of the informal work group is to make peer review less intimidating for the nurse,and less of a burden (finding staff to relieve the staff involved in peer review, etc) for a facility/agency.Remember in both rules, the nurse who is the subject of (incident-based peer review) or who requested(safe harbor peer review) must agree to the use of the informal work group as part of the process.

(5) One comment re: §217.19(j) stated that this section “requires that two conditions be met before a reportmade to an incident-based peer review committee satisfies the nurse’s duty to report to the BON;however, both of thse conditions are outside of the reporting nurse’s control...” Concern related to apeer review committee being found to have acted in bad faith if a nurse were given 20 days notice ofthe hearing instead of 21 days notice of the hearing was also part of this comment [see #6 in commentsfrom Texas Health Resources for this comment in its’ entirety.]

Staff Response: Staff believe the recommended changes to the definitions of good faith, bad faith, andthe addition of a definition of “malice” will address the latter concern in the above comment.

With regard to the first stated concern, proposed §217.19(j)(1)(A) and (B) are the same requirementsas in current §217.19(b)(2) and (3), and date back to at least 2002 in peer review language. In thattime, no situation has been brought to the Board’s attention with regard to these requirements. NeitherNPAC or board staff believed these requirements to be outside of the reporting nurse’s control.

If the peer review committee refuses to tell or simply does not tell the reporting nurse it’s findings, or ifpeer review is never conducted, then the reporting nurse must assume after the applicable time periodhas expired that he/she must report to the BON in order to fulfill his/her duty to report. If the reportingnurse is made aware of the committee’s findings, the nurse must make his/her own judgment whetherthe nurse believes the decision is an honest, unbiased decision that complies with the NPA and boardrules. The reporting nurse’s judgement should be primarily based upon the facts known to them andthat served as the basis for the report to peer review in the first place.

If the nurse feels the peer review committee reached it’s decision in bad faith (see revised definition),then he/she still has a duty to report to the BON. Bear in mind also that it is not a violation to report tothe BON when there is any doubt about a violation of the NPA or board rules.

(5) One comment suggested “Whistleblower protections need to be strengthened; penalties for a hospitals’refusal to give a nurse safe harbor peer review (beyond reporting the DON or CNO to the BON) shouldbe considered. Otherwise, the Board will be inundated with complaints that an already overburdenedstaff would have to deal with.”

Staff Response: The BON does not regulate hospitals or practice settings of any kind; therefore, theBON has no authority to propose sanctions on a facility, agency, or other employer of nurses. The NPAalso prohibits board members and staff from lobbying the Texas Legislature regarding bills that wouldamend the parts of the Texas Occupations Code relating to the practice of nursing. Nurses areencouraged to work through their professional organizations, as these organizations can lobby theLegislature for bills that can impact work setting and employment issues for nurses.

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(6) A question received asked if the list of committees contained within the definition of “PatientSafety Committee” (in both rules) intended to be exclusive with regard to the specified entities, ordo you mean “including but not limited to”? The additional concern added to this question waspermitting a hospital to “completely control a patient safety committee is tantamount to a selfevaluation which is completely subjective; the likelihood of a self report to a licensing oraccrediting body is unlikely.”

Staff Response: In both rules, definition (10) Patient Safety Committee, (A) and (B) comestraight from the statute language in §303.0075. The Nursing Practice Advisory Committee(NPAC) added proposed language in (C) to include provision for “a multi-disciplinary team thatincludes nursing representation “or any committee established by the same entity topromote best practices and patient safety, may apply as appropriate.”

Staff believe the NPAC proposed language in (C) makes it clear that there is no limitation strictlyto the entities listed in the definition. The term “patient safety committee” itself is seen as ageneric term used legislatively since it would be impossible to know the names of everycommittee active within a given setting to investigate error events and recommend changesappropriate to the setting.

As stated in staff’s response to #5, the BON does not regulate hospitals or practice settings ofany kind; therefore, the BON has no authority to mandate who “controls the patient safetycommittee.” The BON’s jurisdiction extends up to the Chief Nursing Officer (CNO), nurseadministrator, or top nursing position by any other title. A CNO, nurse administrator or othernurse in a similar nursing leadership position can be reported to the BON and investigated forfailing to assure peer review processes are conducted in good faith (see amended definition re-proposed new rules).

(7) One comment proposed to delete the term “nurse administrator” and leave only the term ChiefNursing Officer (CNO).

Staff Response: NPAC specifically added both terms because some entities, such as long-termcare and home health, do not have CNO’s but they do have “nurse administrators.” One of theissues brought forward was the mis-interpretation (intentional or not) that CNO responsibilities foroversight of peer review did not apply because the entity in question did not have anyone by thattitle. This suggested language change was not adopted.

(8) Comment that definitions and “like” sections in both rules should be the same between the rules.

Staff Response: NPAC intended some differences with like-name sections between the tworules. For example, Use of Informal Work Groups, and Whisteblower Protections. The two peerreview processes are different and, therefore, the way these two sections must be implementedvary. Rule language cannot be the same for these two sections between the rules. ThoughNPAC originally made the definitions between the rules slightly varied, BON staff recommend thesame definitions between the rules to prevent confusion. For any other “duplicate” sections, staffwill re-look at both rules and make adjustments as appropriate (please see Attachments E andF).

(9) Board staff appreciate but will not address grammatical suggestions. Board legal staff will formatrules appropriately before they are entered on the web page or appear in TAC. This includesconsistency in citations, rule formatting, and grammar/spelling.

(10) One comment re: duplication of certain information in different sections of both rules.

Staff Response: This redundancy is intentional on the part of NPAC and recommended to helpthe rules be more understandable, or “plain speak,” for nurses who must comply with the

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requirements of the rule. In some instances, it is also to place emphasis on particularly importantparts of the peer review process for the given rule.

(11) If not otherwise addressed in BON Responses to Comments in this attachment or in AttachmentsE and F, additional clarifications, suggestions, and/or examples offered in comments will beconsidered for inclusion in FAQs on peer review.

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ATTACHMENT EBON Responses to Comments

Proposed Rule 217.19 Incident-Based Peer ReviewPublished in November 2, 2007 Texas Register (Vol. 32; No. 44)

NOTE: Only Includes Sections w/Changes; NOT Complete Rule Language (See Attachment A)

Suggested Language from Comments: Blue BON Recommended Language: Green Formatting sacrificed for space purposes.

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

1

(a)Defini-tions

(a) Definitions.

(__) Assignment: Designatingresponsibility for the provision or supervision ofnursing care for an individual or group of patients fora defined period of time in a defined work settingincluding the specified functions, duties, or amountof work designated as the individual nurse'sresponsibility. Changes in the clinical situation mayoccur due to volume, intensity, resource availability,or other variables. If the changes in the clinicalsituation modify the level of nursing care provided orlevel of supervision required including the specifiedfunctions, duties, or amount of work designated inthe original assignment, the result is a newassignment

New definition proposed by TNA toemphasize that when the clinical situationchanges a new assignment may result.

Staff Response: Safe Harbor applies tonon-clinical situations as well as clinicalsituations. Staff propose the more genericdefinition. Specifications for when safeharbor is appropriate to invoke are includedmore appropriately elsewhere in the rulelanguage:

(1) Assignment: Designated responsibilityfor the provision or supervision ofnursing care for a defined period of timein a defined work setting. This includesbut is not limited to the specifiedfunctions, duties, practitioner orders,supervisory directives, and amount ofwork designated as the individualnurse's responsibility. Changes in thenurse’s licensure responsibilities mayoccur at any time during the workperiod .

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

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2

(a)Defini-tions

(a) Definitions. (1) Bad Faith: Taking action not supportedby a reasonable factual or legal basis. Theterm includes falsely portraying the factssurrounding the events under review, actingout of malice or personal animosity towardsthe nurse, acting from a conflict of interest,or denying a nurse due process

(2) Bad Faith: Knowingly or recklessly takingaction not supported by a reasonable factualor legal basis. The term includesmisrepresenting the facts surrounding theevents under review, acting out of malice orpersonal animosity towards the nurse, actingfrom a conflict of interest, or knowingly orrecklessly denying a nurse due process.

See multiple comments on “good faith,” “badfaith.” and “malice.” TNA commentletter(page 3) #3 Application of Good Faith,Bad faith and Malice Standards particularlyhelpful background.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

3

(a)Defini-tions

(1) Bad Faith: Taking action not supportedby a reasonable factual or legal basis. Theterm includes falsely portraying the factssurrounding the events under review, actingout of malice or personal animosity towardsthe nurse, acting from a conflict of interest,or denying a nurse due process

(1) (2) Bad Faith: Knowingly or recklessly takingtaking action not supported by a reasonable factualor legal basis. The term includes falsely portrayingmisrepresenting the facts surrounding the eventsunder review, acting out of malice or personalanimosity towards the nurse, acting from a conflict ofinterest, or knowingly or recklessly denying a nursedue process

See multiple comments on “good faith,” “badfaith.” and “malice.” TNA commentletter(page 3) #3 Application of Good Faith,Bad faith and Malice Standards particularlyhelpful background.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

4

(a)Defini-tions

(3) Conduct Subject to Reporting meansconduct by a nurse that:

(A) violates the Nursing PracticeAct (NPA) chapter 301 or aboard rule and contributed tothe death or serious injury of apatient;

(3)(4) Conduct Subject to Reporting meansdefined by §301.401 of the Nursing PracticeAct as conduct by a nurse that:

(A) violates the Nursing Practice Act(NPA) chapter 301 or a board ruleand contributed to the death orserious injury of a patient;

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

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5

(a)Defini-tions

(D) indicates that the nurselacks knowledge, skill,judgment, orconscientiousness to suchan extent that the nurse'scontinued practice ofnursing could reasonablybe expected to pose a riskof harm to a patient oranother person, regardlessof whether the conductconsists of a singleincident or a pattern ofbehavior. [NPA Section301.401(1)]

(D) indicates that the nurse lacksknowledge, skill, judgment, orconscientiousness to such an extentthat the nurse's continued practiceof nursing could reasonably beexpected to pose a risk of harm to apatient or another person,regardless of whether the conductconsists of a single incident or apattern of behavior. [NPA Section301.401(1)]

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

6

(a)Defini-tions

(4) Duty to a patient: conduct requiredby standards of nursing practice[rule 217.11] or prohibited underunprofessional conduct [rule217.12] including administrativedecisions directly affecting anurse’s ability to comply with thatduty.

(5) Duty to a patient: conduct required by anurse’s duty to comply with the standards ofnursing practice (§ 217.11) or prohibitedunder and not to engage in unprofessionalconduct (§ 217.12) including administrativedecisions directly affecting a nurse’s abilityto comply with that duty.

Staff Response: Agree and make thefollowing additional clarification changes inlanguage:

A nurse’s duty is to always advocate forpatient safety, including any nursingaction necessary to comply with thestandards of nursing practice (§ 217.11) and not to avoid engaging inunprofessional conduct (§ 217.12). Thisincludes including administrativedecisions directly affecting a nurse’sability to comply with that duty.

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

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7

(a)Defini-tions

(5) Good Faith: Taking actionsupported by a reasonable factualor legal basis. Good faithprecludes falsely portraying thefacts surrounding the events underreview, acting out of malice orpersonal animosity towards thenurse, acting from a conflict ofinterest, or denying a nurse dueprocess.

(5)(6) Good Faith: Taking action supported by areasonable factual or legal basis. Good faithprecludes misrepresenting falsely portrayingthe facts surrounding the events underreview, acting out of malice or personalanimosity towards the nurse, acting from aconflict of interest, or knowingly or recklesslydenying a nurse due process.

See multiple comments and discussion on“good faith,” “bad faith.” and “malice.”

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions will be the same for both rules217.19 and 217.20. Additional clarificationsuggestions and/or examples offered incomments will be considered for inclusion inFAQs on peer review.

8

(a)Defini-tions

(7) Malice: Acting with a specific intent to dosubstantial injury or harm to another.

Added by TNA-- modified from definition in§41.001, Civil Remedies & Procedure Code See multiple comments on “good faith,” “badfaith.” and “malice.” TNA commentletter(page 3) #3 Application of Good Faith,Bad faith and Malice Standards particularlyhelpful background.

Staff Response: See multiple commentsand discussion on “good faith,” “bad faith.”and “malice.” Staff agree with languagechanges as suggested in column 3.

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(a)Defini-tions

(8) Nursing Peer Review (NPR law):Consists of chapter 303 of theTexas Occupations Code (TOC).Part of the Texas statutes, or laws,and can only be changed by theTexas Legislature. Nurses involvednursing peer review must complywith the NPR statutes.

(10) Nursing Peer Review Law (NPR law):Consists of Chapter 303 of the TexasOccupations Code (TOC). Part of the Texasstatutes, or laws, and can only be changedby the Texas Legislature. Nurses involved innursing peer review must comply with theNPR Law statutes.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

TableSection

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10

(a)Defini-tions

(9) Nursing Practice Act (NPA):Includes chapter 301 of the TexasOccupations Code (TOC). Part ofthe Texas statutes, or laws, andcan only be changed by the TexasLegislature. Nurses must complywith the NPA statutes.

(11) Nursing Practice Act (NPA): IncludesChapter 301 of the Texas Occupations Code(TOC). Part of the Texas statutes, or laws,and can only be changed by the TexasLegislature. Nurses must comply with theNPA statutes.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

11

(a)Defini-tions

(10) Patient Safety Committee: Anycommittee established by anassociation, school, agency, healthcare facility, or other organizationto address issues relating to patientsafety that includes:

(A) the entity’s medical staff composedof individuals licensed underSubtitle B [Medical Practice Act,Occupations Code §151.001 etseq.];

(B) a medical committee underSubchapter D, chapter 161 Healthand Safety Code (§§161.031-.033);or

(C) a multi-disciplinary committeeincluding nursing representation, orany committee established by orcontracted within the same entity topromote best practices and patientsafety, as appropriate.

(12) Patient Safety Committee: Any committeeestablished by an association, school,agency, health care facility, or otherorganization to address issues relating topatient safety that includes including:

(A) the entity’s medical staff composedof individuals licensed under SubtitleB [Medical Practice Act,Occupations Code §151.001 etseq.];

(B) a medical committee underSubchapter D, chapter 161 of theHealth and Safety Code(§§161.031-.033); or

(C) a multi-disciplinary committeeincluding nursing representation,or any committee established byor contracted within the sameentity to promote best practicesand patient safety, asappropriate.

Staff Response: Staff agree with languagechanges as suggested in column 3 with oneminor editorial revision as noted in green.

J. Hopkins requested inclusion of “medicalpeer review committees as defined inSection 151.002(8).”

Staff Response: Language in proposeddefinition of Pt. Safety Committee (12)(A)comes directly from the statute languageand “et seq.” includes the above mentionedsection of the MPA. Therefore, additionseems duplicative, and was not added. Thiscomment will be considered as explanatoryin FAQ documents on peer review.

§303.0015 addresses contracting peerreview, but not pt safety committee:

(C) a multi-disciplinary committee includingnursing representation, or anycommittee established by or contractedwithin the same entity to promote bestpractices and patient safety, asappropriate.

TableSection

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12

(a)Defini-tions

(11) Peer Review: Defined in the NPRlaw, contained within TexasOccupations Code (TOC)§303.001(5), it is the evaluation ofnursing services, the qualificationsof a nurse, the quality of patientcare rendered by a nurse, themerits of a complaint concerning anurse or recommendationregarding a complaint. The peerreview process is one of factfinding, analysis and study ofevents by nurses in a climate ofcollegial problem solving focusedon obtaining all relevant informationabout an event.

(13) Peer Review: Defined in the NPR law,contained within Texas Occupations Code(TOC) by §303.001(5) of NPR Law (TOC ch.303), it is as the evaluation of nursingservices, the qualifications of a nurse, thequality of patient care rendered by a nurse,the merits of a complaint concerning a nurseor recommendation regarding a complaint.The peer review process is one of factfinding, analysis and study of events bynurses in a climate of collegial problemsolving focused on obtaining all relevantinformation about an event.

Staff Response: Staff agree with languagechanges as suggested in column 3.

One comment requested addition of thefollowing to definition: “the performance ofincident-based peer review, safe harbor peerreview, or any other review required by theNursing Practice Act or TBON rules.”

Staff response: Agree in concept.Recommend adding the following language:

Peer review conducted by any entitymust comply with NPR Law and withapplicable Board rules related toincident-based or safe harbor peerreview.

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13

(a)Defini-tions

(12) Safe Harbor: a process allowing anindividual to request in good faith a review of asituation, action, conduct, or assignment whilebeing protected from retaliation and licensureliability. Safe Harbor must be invoked prior to orat the time the assignment is made or conductrequested. This includes changes in initialpractice situation, assignments, or patientacuities that adversely impact the conduct orassignment requested of the nurse such that anurse believes in good faith that his/her duty tothe patient would be violated. This change mayoccur at any time.

(14) Safe Harbor: A a process allowing anindividual to request in good faith a review ofa situation, action, conduct, or assignmentwhile being protected from retaliation andlicensure liability.

Safe Harbor must be invoked prior toengaging in the conduct or assignment forwhich Safe Harbor is requested. or at thetime the assignment is made or conductrequested. This includes changes in initialpractice situation, assignments, or patientacuities that adversely impact the conduct orassignment requested of the nurse such thata nurse believes in good faith that his/herduty to the patient would be violated. Thischange may occur at any time.

Definition added to make definitions same in bothrules.

Definition of “assignment” as orig. added alsodeleted language here re: changes occurring atany time during the shift. BON staff believe it isbeneficial to leave in language that clarifies achanges in assignment may occur at anytime.Staff also believe need to avoid term “liability” asnurses already confuse licensure responsibilitywith civil liability. BON staff further suggestclarification within the definition as follows:

Safe Harbor: A process that protects a nursefrom employer retaliation and licensuresanction liability allowing an individual to whena nurse makes a request in good faith a request for peer review of a situation, action,conduct or an assignment or conduct that thenurse is requested to perform and a nurse whilebeing protected from retaliation and licensureliability. believes could result in a violation ofthe NPA (TOC) or board rules. Safe Harbormust be invoked prior to engaging in the conductor assignment for which Safe Harbor peer reviewis requested, and may be invoked at anytimeduring the work period when the initialassignment changes.

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14

(a)Defini-tions

(13) Safe Harbor Peer Review: Thedetermination if the requestedconduct or assignment could havepotentially endangered a patient,resulting in the nurse violatinghis/her duty to the patient. A safeharbor peer review committeereviewing a nurse’s request for safeharbor must also ascertain ifexternal factors in the systematicapproach and/or nursing policiesrelated to the conduct under reviewcould prevent the recurrence of thesame or similar unsafe situation. Inaccordance with Nursing PeerReview (TOC) §303.011(b), if thecommittee determines that externalfactors contributed to a nurse’srequest for safe harbor, thecommittee is to report to a patientsafety committee.

(15) Safe Harbor Nursing Peer Review: Thedetermination if the requested conduct orassignment could have potentially endangered apatient, resulting result in the nurse violatinghis/her duty to the patient. A safe harbor NursingPeer Review Committee reviewing a nurse’srequest for Safe Harbor must also ascertain ifexternal factors contributed to the nurse’srequest and whether system changes or changesin nursing policies could prevent the recurrenceof the same or similar situation. reviewing anurse’s request for safe harbor must alsoascertain if external factors in the systematicapproach and/or nursing policies related to theconduct under review could prevent therecurrence of the same or similar unsafesituation. In accordance with Nursing PeerReview (TOC) §303.011(b), if the committeedetermines that external factors contributedto a nurse’s request for safe harbor, thecommittee is to shall report to a patientsafety committee.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definition added to make definitions same inboth rules.

15

(a)Defini-tions

(14) Texas Occupations Code (TOC):One part of the Texas Statutes, orlaws. The Nursing Practice Act(NPA) and Nursing Peer Review(NPR law) statutes are but a few ofthe chapters of Texas lawscontained within the TOC.

(16) Texas Occupations Code (TOC): One partof the topical subdivisions or “codes” intowhich the Texas Statutes or laws areorganized. The Occupations Code containsthe statutes governing occupations andprofessions including the health professionsand includes both the NPA and NPR Law. The Occupations Code can be changed onlyby the Texas Legislature. The NursingPractice Act (NPA) and Nursing PeerReview (NPR law) statutes are but a few ofthe chapters of Texas laws contained withinthe TOC.

Staff Response: Staff agree with languagechanges as suggested in column 3, withminor editing as below. Definitions are thesame for both rules 217.19 and 217.20.

The Occupations Code contains the statutesgoverning occupations and professionsincluding the health professions. andincludes Both the NPA and NPR Law arelocated in the TOC.

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16

(a)Defini-tions

(15) Whistleblower Protections:protections available to a nurse thatprohibit retaliatory action by anemployer or other entity for:

(A) a request made by a nurseunder Nursing PeerReview (TOC) §303.005(c)regarding invoking safeharbor protections, or

(17) Whistleblower Protections: protectionsavailable to a nurse that prohibitretaliatory action by an employer orother entity because the nurse:

(A) a made by a nurse a good faithrequest for Safe Harbor NursingPeer Review under Nursing PeerReview (TOC) §303.005(c) ofNPR Law (TOC ch. 303)regarding invoking safe harborprotections, , or

Staff Response: Staff agree with languagechanges as suggested in column 3 withminor editorial change. Definitions are thesame for both rules 217.19 and 217.20.

(A) a made by a nurse a good faithrequest for Safe Harbor NursingPeer Review under Nursing PeerReview (TOC) §303.005(c) ofNPR Law (TOC ch. 303)regarding invoking safe harborprotections, and rule 217.20; or

17

(a)Defini-tions

(B) under the NPA (TOC) §301.352regarding a nurse’s refusal toengage in an act or omissionrelating to patient care that wouldconstitute grounds for reporting thenurse to the board, that constitutesa minor incident, or that violates theNPA or board rules; or

(B) refused under §301.352 of the NPA (TOCch. 301) regarding a nurse’s refusal toengage in an act or omission relating topatient care that would constitute groundsfor reporting the nurse to the board, thatconstitutes a minor incident, or that violatesthe NPA or board rules; or

Staff Response: Staff believe the definitionunder (b) should be simplified for ease inunderstanding, and greater detail placedeither later in rule or in FAQs as needed

(B) refused under §301.352 of the NPA(TOC ch. 301) regarding a nurse’s refusal toengage in an act or omission relating topatient care that would constitute groundsfor reporting the nurse to the board, thatconstitutes a minor incident, or that violatesa violation of the NPA or board rules aspermitted by §301.352 of the NPA (TOC ch.301) (Protection for Refusal to Engage inCertain Conduct) ; or

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18

(a)Defini-tions

(C) a report made by a nurse under NPA(TOC) §301.4025 (related to patientsafety concerns) and section (k) of thisrule, that may also be protected underother laws or regulations, concerningunsafe practitioners or unsafe patientcare practices or conditions. Protectionfrom retaliatory action applies to anyreport made to a licensing agency,accrediting body, regulatory entity, oradministrative personnel within thefacility or organization that the nursebelieves has the power to takecorrective action.

(C) a report made a report by a nurse under NPA(TOC) §301.4025 (report of unsafe practices ofnon-nurse entities) and section (i)(2) of thissection rule, that may also be protected underother or another law or regulations thatauthorizes reporting of concerning unsafepractitioners or unsafe patient care practices orconditions. Protection from retaliatory actionapplies to any report made to a licensing agency,accrediting body, regulatory entity, oradministrative personnel within the facility ororganization that the nurse believes has thepower to take corrective action.

Staff Response: Staff believe definitionunder (C) should be simplified for ease inunderstanding, and greater detail placedeither later in rule or in FAQs as needed:

(C) made a lawful report of unsafepractitioners, or unsafe patient carepractices or conditions, in accordance underwith NPA (TOC) §301.4025 (report of unsafepractices of non-nurse entities) and section(i)(j)(2) of this section or another law orregulations that authorizes reporting ofconcerning unsafe practitioners or unsafe patientcare practices or conditions. Protection fromretaliatory action applies to any report made to alicensing agency, accrediting body, regulatoryentity, or administrative personnel within thefacility or organization that the nurse believes hasthe power to take corrective action.

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19

(b)Purpose

(b) Purpose

The purpose of this rule is to defineminimum due process to which anurse is entitled under incident-based peer review, to provideguidance to facilities, agencies,schools, or anyone who utilizes theservices of nurses in thedevelopment and application ofincident-based peer review plans,to assure that nurses haveknowledge of the plan, and toprovide guidance to the incident-based peer review committee in itsfact finding process.

(b) Purpose

The purpose of this rule is to:

(1) define minimum due process towhich a nurse is entitled underincident-based peer review,

(2) provide guidance to facilities,agencies, schools, or anyone whoutilizes the services of nurses in thedevelopment and application ofincident-based peer review plans,

(3) assure that nurses have knowledgeof the plan, and

(4) provide guidance to the incident-based peer review committee in itsfact finding process.

Staff Response: Staff agree with languagechanges as suggested in column 3.

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20

(c)Applica-bility of

Incident-BasedPeer

Review

(c) Applicability of Incident-BasedPeer Review

Nursing Peer Review (TOC)§303.0015 requires a person whoregularly employs, hires orcontracts for the services of ten(10) or more nurses (for peerreview of a RN, at least 5 of the 10must be RNs) to conduct nursingpeer review for purposes of NPA§§301.402(e) (relating to alternatereporting by nurses to peer review),301.405(c) (relating to peer reviewof external factors as part ofemployer reporting), and301.407(b) (relating to alternatereporting by state agencies to peerreview).

(c) Applicability of Incident-Based PeerReview

Nursing Peer Review (TOC) § Section303.0015 of the NPR Law (TOC ch. 303)requires a person who regularly employs,hires or contracts for the services of ten (10)or more nurses (for peer review of a RN, atleast 5 of the 10 must be RNs) to conductnursing peer review for purposes of NPA§§301.402(e) (relating to alternate reportingby nurses to peer review), 301.403 (relatingto peer review committee reporting),301.405(c) (relating to peer review ofexternal factors as part of employerreporting), and 301.407(b) (relating toalternate reporting by state agencies to peerreview).

Staff Response: Staff agree with languagechanges as suggested in column 3.

21

(d)Minimum

DueProcess

(d) Minimum Due Process

(1) A licensed nurse subject toincident-based peer review isentitled to minimum due processunder Nursing Peer Review (TOC)§303.002(e), any person or entitythat conducts incident-based peerreview must comply with the dueprocess requirements of thissection even if they do not utilizethe number of nurses described bysubsection (c).

(d) Minimum Due Process

(1) A licensed nurse subject to incident-based peer review is entitled tominimum due process underNursing Peer Review (TOC)§303.002(e). Any person or entitythat conducts incident-based peerreview must comply with the dueprocess requirements of this sectioneven if they the person or entity dodoes not utilize the number ofnurses described by Subsection (c).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3, with minor editing (see greenfont).

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22

(d)Minimum

DueProcess

(2) A facility conducting incident-basedpeer review shall have writtenpolicies and procedures that, at aminimum, address:

(A) level of participation ofnurse or nurse’srepresentative at anincident-based peer reviewhearing beyond thatrequired by subsection(d)(3)(F) of this rule;

(2) A facility conducting incident-basedpeer review shall have writtenpolicies and procedures that, at aminimum, address:

(A) the level of participation ofnurse or nurse’srepresentative at anincident-based peer reviewhearing beyond thatrequired by Subsection(d)(3)(F) of this rule;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

23

(d)Minimum

DueProcess

(B) confidentiality and safeguards toprevent impermissible disclosuresincluding written agreement by allparties to abide by Nursing PeerReview (TOC) §§303.006 and303.007;

(B) confidentiality and safeguards to preventimpermissible disclosures including writtenagreement by all parties to abide by NursingPeer Review Law (TOC) §§303.006 and303.007, 303.0075 and Subsection (h) ofthis rule;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

24

(d)Minimum

DueProcess

(C) handling of cases involving nurseswho are impaired or suspected ofbeing impaired by chemicaldependency, drug or alcoholabuse, substance abuse/misuse,“intemperate use,” mental illness,or diminished mental capacity inaccordance with the NPA (TOC)§301.410, and subsection (g) ofthis rule;

(C) handling of cases involving nurses who areimpaired or suspected of being impaired bychemical dependency, drug or alcoholabuse, substance abuse/misuse,“intemperate use,” mental illness, ordiminished mental capacity in accordancewith the NPA (TOC) §301.410, andSubsection (g) of this rule;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

25

(d)Minimum

DueProcess

(D) reporting of nurses to the board byincident-based peer reviewcommittee in accordance with theNPA (TOC) §301.403, andsubsection (i) of this rule; and

(D) reporting of nurses to the board by incident-based peer review committee in accordancewith the NPA (TOC) §301.403, andsubsection (i) of this rule; and

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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26

(d)Minimum

DueProcess

(E) effective date of changes to thepolicies which in no event shallapply to incident-based peer reviewproceedings initiated before thechange was adopted unless agreedin writing by the nurse beingreviewed.

(E) effective date of changes to the policieswhich in no event shall apply to incident-based peer review proceedings initiatedbefore the change was adopted unlessagreed to in writing by the nurse beingreviewed.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

27

(d)Minimum

DueProcess

(3) In order to meet the minimum dueprocess required by Nursing PeerReview (TOC) chapter 303, thenursing peer review committeemust:

(A) comply with themembership and votingrequirements as set forth inNursing Peer Review(TOC) §303.003(a)-(d);

(3) In order to meet the minimum due processrequired by Nursing Peer Review Law (TOC) chapter 303, the nursing peer reviewcommittee must:

(A) comply with themembership and votingrequirements as set forth inNursing Peer Review (TOC)§303.003(a)-(d);

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

28

(d)Minimum

DueProcess

(B) exclude from the committee,including attendance at theincident-based peer reviewhearing, any person or personswith administrative authority forpersonnel decisions directlyrelating to the nurse. Thisrequirement does not exclude aperson who is administrativelyresponsible over the nurse beingincident-based peer reviewed fromappearing before the incident-based peer review committee tospeak as a fact witness;

(B) exclude from the committee, includingattendance at the incident-based peerreview hearing, any person or persons withadministrative authority for personneldecisions directly relating to the nurse. Thisrequirement does not exclude a person whois administratively responsible over thenurse being incident-based peer reviewedfrom appearing before the incident-basedpeer review committee to speak as a factwitness;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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29

(d)Minimum

DueProcess

(C) provide written notice to the nurse inperson or by certified mail at the lastknown address the nurse has on filewith the facility that:

(i) the nurse’s practice is being evaluated;

(ii) that the incident-based peer reviewcommittee will meet on a specified datenot sooner than 21 calendar days andnot more than 45 calendar days fromdate of notice, unless:

(l) the incident-based peer reviewcommittee determines an extendedtime period (extending the 45 days byno more than an additional 45 days) isnecessary in order to consult with apatient safety committee, or is

(Il) otherwise agreed upon by the nurseand incident-based peer reviewcommittee.

(iii) Said notice must include a written copy ofthe incident-based peer review plan,policies and procedures.

(C) provide written notice to the nurse in person or bycertified mail at the last known address the nursehas on file with the facility that:

(i) the nurse’s practice is being evaluated;

(ii) that the incident-based peer review committeewill meet on a specified date not sooner than 21calendar days and not more than 45 calendardays from date of notice, unless:

(l) the incident-based peer reviewcommittee determines an extended timeperiod (extending the 45 days by nomore than an additional 45 days) isnecessary in order to consult with apatient safety committee, or is

(Il) otherwise agreed upon by the nurse andincident-based peer review committee.

(iii) Said notice must includes a written copyof the incident-based peer review plan,policies and procedures the informationrequired by Paragraph (D).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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30

(d)Minimum

DueProcess

(D) Include in the written notice:

(i) a description of theevent(s) to be evaluated insufficient detail to informthe nurse of the incident,circumstances and conduct(error or omission),including date(s), time(s),location(s), andindividual(s) involved. Thepatient/client shall beidentified by initials ornumber to the extentpossible to protectconfidentiality but the nurseshall be provided the nameof the patient/client;

(D) Include in the written notice required byParagraph (C):

(i) a description of the event(s) tobe evaluated in sufficient detailto inform the nurse of theincident, circumstances andconduct (error or omission),including date(s), time(s),location(s), and individual(s)involved. The patient/client shallbe identified by initials or numberto the extent possible to protectconfidentiality but the nurse shallbe provided the name of thepatient/client;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

31

(d)Minimum

DueProcess

(ii) name, address, telephone numberof contact person to receive thenurse’s response; and

(iii) a copy of this rule (§217.19) and acopy of the facility’s incident-basedpeer review plan, policies andprocedures.

(ii) the name, address, telephonenumber of contact person to receivethe nurse’s response; and

(iii) a copy of this rule (§217.19 of thistitle) and a copy of the facility’sincident-based peer review plan,policies and procedures.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

32

(d)Minimum

DueProcess

(G) conclude its review no more thanfourteen (14) calendar days fromthe incident-based peer reviewhearing, or in compliance withsubsection (d)(3)(C)(ii) of this rulerelating to consultation with apatient safety committee;

(G) conclude complete its review no more thanfourteen (14) calendar days from after theincident-based peer review hearing, or incompliance with subsection (d)(3)(C)(ii) ofthis rule relating to consultation with apatient safety committee;

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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(d)Minimum

DueProcess

(J) An incident-based peer reviewcommittee’s determination toreport a nurse to the boardcannot be overruled, changed,or dismissed.

(J)(4) An incident-based peer reviewcommittee’s determination to report anurse to the board cannot be overruled,changed, or dismissed.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

34

(d)Minimum

DueProcess

(4) Nurse’s Right To Representation

(A) A nurse shall have a right ofrepresentation as set out in thissection. The rights set out in thissection are minimum requirementsand a facility may allow the nursemore representation. The incident-based peer review process is not alegal proceeding; therefore, rulesgoverning legal proceedings andadmissibility of evidence do notapply and the presence ofattorneys is not required.

(4)(5) Nurse’s Right To Representation

(A) A nurse shall have a right ofrepresentation as set out in thissection Subdivision (4). These rightsset out in this section are minimumrequirements and a facility mayallow the nurse morerepresentation. The incident-basedpeer review process is not a legalproceeding; therefore, rulesgoverning legal proceedings andadmissibility of evidence do notapply and the presence of attorneysis not required.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3, with one editorial correction.

(A) A nurse shall have a right ofrepresentation as set out in thissection Subdivision (4). (5)...

Note: No changes suggested or made to(5)(B)-(D).

35

(d)Minimum

DueProcess

(5) A nurse whose practice is beingevaluated may properly choose not toparticipate in the proceeding after thenurse has been notified undersubsection (d)(3)(H) of this rule.Nursing Peer Review (TOC)§303.002(d) prohibits nullifying bycontract any right a nurse has underthe incident-based peer reviewprocess. If a nurse elects not toparticipate in incident-based peerreview, the nurse waives any right toprocedural due process under TOC§303.002 and subsection (d) of thisrule.

(5)(6) A nurse whose practice is being evaluated mayproperly choose not to participate in theproceeding after the nurse has been notifiedunder subsection (d)(3)(C) of this rule. section.Nursing Peer Review (TOC) §303.002(d)prohibits nullifying by contract any right a nursehas under the incident-based peer reviewprocess. If a nurse elects not to participate inincident-based peer review, the nurse waives anyright to procedural due process under TOC§303.002 and Subsection (d) of this section.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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(e)

Use ofInformal

WorkGroup InIncidentBasedPeer

Review

(e) Use of Informal Work Group InIncident Based Peer Review

(A) A facility may choose to initiate aninformal review process utilizing aworkgroup of the nursing incident-based peer review committee providedthere are written policies for theinformal workgroup that require:

(i) the nurse to be informed ofhow the informal workgroupwill function, and to consent,in writing, to the use of aninformal workgroup. A nursedoes not waive any right toincident-based peer review byaccepting or rejecting the useof an informal workgroup;

(e) Use of Informal Work Group In IncidentBased Peer Review

(1)A facility may choose to initiate an informalreview process utilizing a workgroup of thenursing incident-based peer review committeeprovided there are written policies for the informalworkgroup that require:

(1)(A) the nurse to be informed of how theinformal work group will function, and toconsent, in writing, to the use of aninformal work group. A nurse does notwaive any right to incident-based peerreview by accepting or rejecting the useof an informal work group;

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

37

(e)Use of

InformalWork

Group InIncidentBasedPeer

Review

(ii) if the informal workgroupbelieves that a practice violationhas occurred and suspects thatthe nurse’s practice is impairedby chemical dependency ordiminished mental capacity, thecommittee chair must benotified to determine if peerreview should be terminatedand the nurse reported to theboard;

(2)(B) if the informal work group believes thata practice violation has occurred andsuspects that the nurse’s practice isimpaired by chemical dependency ordiminished mental capacity, thecommittee chair person must benotified to determine if peer reviewshould be terminated and the nursereported to the board or to a board-approved peer assistance program asrequired by Subsection (g);

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

Staff agree with language changes incolumn #3 with minor edit forconsistency re: reference to chairperson.

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(e)Use of

InformalWork

Group InIncidentBasedPeer

Review

(iii) the informal workgroup tocomply with the membershipand voting requirements ofSections (d)(3)(A) and (B) ofthis rule;

(iv) the nurse be provided theopportunity to meet with theinformal workgroup;

(3)(C) the informal work group to comply withthe membership and votingrequirements of Subsection (d)(3)(A)and (B) of this rule;

(4)(D) the nurse be provided the opportunity tomeet with the informal work group;

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

Staff agree with language deletions andcorrection in column #3.

39

(e)Use of

InformalWork

Group InIncidentBasedPeer

Review

(v) the nurse to have the right toreject any decision of theinformal workgroup and to thenhave his/her conduct reviewedby the incident-based peerreview committee, in whichevent members of the informalworkgroup shall not participatein that determination; and

(5)(E) the nurse to have the right to reject anydecision of the informal work group andto then have his/her conduct reviewedby the incident-based peer reviewcommittee, in which event members ofthe informal work group shall notparticipate in that determination; and

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

Staff agree with language deletions incolumn #3.

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40

(e)Use of

InformalWork

Group InIncidentBasedPeer

Review

(vi) ratification by the incident-based peer review committeechair person of any decisionmade by the informalworkgroup. If the chair persondisagrees with a determinationof the informal workgroup toremediate a nurse for one ormore minor incidents, the chairperson shall convene the fullpeer review committee toreview the conduct in question.

(6)(F) ratification by the incident-based peerreview committee chair person of anydecision made by the informal workgroup. If the chair person disagrees witha determination of the informal workgroup to remediate a nurse for one ormore minor incidents, the chair personshall convene the full peer reviewcommittee to review make adetermination regarding the conductin question.

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

Staff agree with language deletions incolumn #3, and recommend addition oflanguage as indicated in green.

41

(e)Use of

InformalWork

Group InIncidentBasedPeer

Review

(vii) the peer review chair personmust communicate any decisionof the informal work group tothe CNO.

(7)(G) the peer review chair person mustcommunicate any decision of theinformal work group to the CNO.

Comment was because no (2), make (1)stem and then use numbers forsubsections.

Staff Response: Correct formatting isthat stem is “implied” (1), so still used(A)-(G) for subsequent subsections.

Staff agree with language deletion incolumn #3.

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42

(f)Exclu-

sions toMinimum

DueProcessRequire-ments

(f) Exclusions to Minimum DueProcess Requirements

The minimum due process requirementsset out in subsection (d) of this rule do notapply to:

(1) Peer review conductedsolely in compliance withNPA (TOC) §301.405(c)relating to incident-basedpeer review of externalfactors, after a report of anurse to the board hasalready occurred underNPA (TOC) §301.405(b);or

(f) Exclusions to Minimum Due ProcessRequirements

The minimum due process requirements set out inSubsection (d) of this rule do not apply to:

(1)(A) peer review conducted solely incompliance with NPA (TOC)§301.405(c) relating to incident-based peer review of externalfactors, after a report of a nurse tothe board has already occurredunder NPA (TOC) §301.405(b)(relating to mandatory report byemployer, facility or agency); or

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

43

(f)Exclu-

sions toMinimum

DueProcessRequire-ments

(2) when during the course of theincident-based peer reviewprocess, a practice violation isidentified as a possibleconsequence of the nurse’spractice being impaired asdescribed under subsection (g)of this rule; or

(2) reviews governed by Subsection (g)involving nurses whose practice issuspected of being impaired due to chemicaldependency, drug or alcohol abuse,substance abuse/misuse, “intemperate use,”mental illness, or diminished mentalcapacity;

(2) when during the course of the incident-based peer review process, a practiceviolation is identified as a possibleconsequence of the nurse’s practicebeing impaired as described undersubsection (g) of this rule; or

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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45

44

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(g) Incident-Based Peer Review of aNurse’s Impaired NursingPractice/Lack of Fitness

(1) Instead of requestingreview by a peer reviewcommittee, a nurse whosepractice is impaired orsuspected of beingimpaired due to chemicaldependency, drug oralcohol abuse, substanceabuse/misuse,“intemperate use,” mentalillness, or diminishedmental capacity, with noevidence of nursingpractice violations, shall bereported, in accordancewith NPA (TOC)§301.410(a) (related toreporting of impairment), toeither:

(g) Incident-Based Peer Review of a Nurse’sImpaired Nursing Practice/ Lack ofFitness

(1) Instead of requesting review by apeer review committee, When anurse’s whose practice is impairedor suspected of being impaired dueto chemical dependency, drug oralcohol abuse, substanceabuse/misuse, “intemperate use,”mental illness, or diminished mentalcapacity, with no evidence ofnursing practice violations, peerreview shall be suspended, and thenurse shall be reported to the boardor to a board-approved peerassistance program in accordancewith NPA (TOC) §301.410(a)(related to reporting of impairment):to either:

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

(g) Incident-Based Peer Review of aNurse’s Impaired NursingPractice and Lack of Fitness

peer review of the nurse shall besuspended. and The nurse shall bereported to the board or to a board-approved peer assistance program inaccordance with NPA (TOC)§301.410(a) (related to reporting ofimpairment):

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

46

45

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(A) the board; or(B) a board-approved peer

assistance program.

(A) if there is no reasonable factual basis fordetermining that a practice violation isinvolved, the nurse shall be reported to:

(A)(i) the board; or(B)(ii) a board-approved peer assistance

program, which that shall handlereporting the nurse in accordancewith Rule 217.13, or

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

46

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(2) If during the course of an incident-based peer review process, there is areasonable factual basis for adetermination that a practice violationoccurred due to a nurse’s practiceimpairment or suspected practiceimpairment or lack of fitness due tochemical dependency, drug or alcoholabuse, substance abuse/misuse,“intemperate use,” mental illness, ordiminished mental capacity of areported nurse, the incident-basedpeer review process shall besuspended, and the nurse reported tothe board in accordance with NPA(TOC) §301.410(b) (related to requiredreport to board when practice violationsexist with suspected practiceimpairment/lack of fitness).

(2)(B) if there is a reasonable factual basis for adetermination that a practice violation isinvolved, the nurse shall be reported to theboard.

2) If during the course of an incident-based peerreview process, there is a reasonable factualbasis for a determination that a practice violationoccurred due to a nurse’s practice impairment orsuspected practice impairment or lack of fitnessdue to chemical dependency, drug or alcoholabuse, substance abuse/misuse, “intemperateuse,” mental illness, or diminished mentalcapacity of a reported nurse, the incident-basedpeer review process shall be suspended, and thenurse reported to the board in accordance withNPA (TOC) §301.410(b) (related to requiredreport to board when practice violations exist withsuspected practice impairment/lack of fitness).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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47

47

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(A) Following suspension of peerreview of the nurse, the incident-based peer review committee shallproceed to evaluate externalfactors to determine if:

(i) any factors beyond thenurse’s control contributedto a practice violation,

(ii) if any deficiency in externalfactors enabled the nurseto engage inunprofessional or illegalconduct, and

(A)(2) Following suspension of peer review ofthe nurse, the incident-based peerreview committee shall proceed toevaluate external factors to determine if:

(i) any factors beyond the nurse’scontrol contributed to a practiceviolation, and

(ii) if any deficiency in externalfactors enabled the nurse toengage in unprofessional orillegal conduct. and

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

48

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(iii) if the committee determinesexternal factors do exist for either(i) or (ii), the committee shall reportit’s findings to a patient safetycommittee or to the CNO if there isno patient safety committee

(iii)(3) If the committee determines underSubdivision (2) that external factors do existfor either (i) or (ii) of this Subparagraph, thecommittee shall report its findings to apatient safety committee or to the CNO ifthere is no patient safety committee.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

TableSection

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48

49

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(B) A facility, organization, contractor,or other entity does not violate anurse’s right to due process underTOC §303.002(e) relating to peerreview by suspending thecommittee’s review and reportingthe nurse to the Board inaccordance with this paragraph (2).

(B)(4) A facility, organization, contractor, or otherentity does not violate a nurse’s right to dueprocess under Subsection (d) TOC§303.002(e) relating to peer review bysuspending the committee’s review of thenurse and reporting the nurse to the Boardin accordance with this paragraphSubdivision (2).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3 with addition of clarifyinglanguage in green.

50

(g)Incident-

BasedPeer

Review ofa Nurse’sImpaired Practice/Lack ofFitness

(3) Neither (1) or (2) above preclude anurse from self-reporting to a peerassistance program or appropriatetreatment facility.

(3)(5) Neither (1) or (2) above Subdivision (1) doesnot preclude a nurse from self-reporting to apeer assistance program or appropriatetreatment facility.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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49

51

(h)

Confi-dentiality

ofProceed-

ings

(h) Confidentiality of Proceedings

(1) Confidentiality of informationpresented to and/or considered bythe incident-based peer reviewcommittee shall be maintained andnot disclosed except as providedby Nursing Peer Review (TOC)§§303.006, 303.007, and§303.0075. Disclosure/discussionby a nurse with the nurse’s attorneyis proper because the attorney isbound to the same confidentialityrequirements as the nurse

(h) Confidentiality of Proceedings

(1) Confidentiality of informationpresented to and/or considered bythe incident-based peer reviewcommittee shall be maintained andthe information not disclosed exceptas provided by Nursing Peer ReviewLaw (TOC) §§303.006, 303.007,and §303.0075.Disclosure/discussion by a nursewith the nurse’s attorney is properbecause the attorney is bound to thesame confidentiality requirementsas the nurse.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3 with one editorial correction.

Peer Review Law (TOC) §§303.006,303.007, and §303.0075. {strike outsection symbol}

52

(h)

Confi-dentiality

ofProceed-

ings

(2) Sharing of Information: Inaccordance with Nursing PeerReview (TOC) §303.0075, anursing incident-based peer reviewcommittee and any patient safetycommittee established by orcontracted with the same entity,may share information. A record ordetermination of a patient safetycommittee, or a communicationmade to a patient safetycommittee, is not subject tosubpoena or discovery and is notadmissible in any civil oradministrative proceeding,regardless of whether theinformation has been provided to anursing peer review committee.

(2) Sharing of Information: In accordancewith Nursing Peer Review Law (TOC)§303.0075, a nursing incident-basedpeer review committee and any patientsafety committee established by orcontracted with the same entity, mayshare information.

(A) A record or determination of a patient safetycommittee, or a communication made to apatient safety committee, is not subject tosubpoena or discovery and is not admissiblein any civil or administrative proceeding,regardless of whether the information hasbeen provided to a nursing peer reviewcommittee.

Staff Response: Staff agree with rationalefor striking “contracted with” as worded,since it implies a patient safety committeecould be contracted out. The enablingstatute in §303.0015(b) permits conductingof peer review to be contracted out. Staffrecommend replacement language asfollows:

In accordance with Nursing Peer ReviewLaw (TOC) §303.0075, a nursing incident-based peer review committee, including anentity contracted to conduct peer reviewunder §303.0015(b), and any patient safetycommittee established by the same entity,may share information.

Staff agree with other changes assuggested in column #3.

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50

53(h)

Confi-dentiality

ofProceed-

ings

(A) The privileges under thissubsection may be waived onlythrough a written waiver signed bythe chair, vice chair, or secretary ofthe patient safety committee.

(A)(B) The privileges under this subsection may bewaived only through a written waiver signedby the chair, vice chair, or secretary of thepatient safety committee.

Staff Response: Staff agree with re-ordering as suggested in column 3.

54 (h)

Confi-dentiality

ofProceed-

ings

(B) This section does not affect theapplication of Nursing Peer Review(TOC) §303.007 (relating todisclosures by peer reviewcommittee) to a nursing peerreview committee.

(B)(C) This section does not affect the applicationof Nursing Peer Review Law (TOC)§303.007 (relating to disclosures by peerreview committee) to a nursing peer reviewcommittee.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

55

(h)Confi-

dentialityof

Proceed-ings

(C) A committee that receivesinformation from another committeeshall forward any request todisclose the information to thecommittee that provided theinformation.

(C)(D) A committee that receives information fromanother committee shall forward any requestto disclose the information to the committeethat provided the information.

Staff Response: Staff agree with re-ordering as suggested in column 3.

56(h)

Confi-dentiality

ofProceed-

ings

(5) A CNO shall assure thatpolicies relating to sharing ofdocuments with the incident-based peer review committee ata minimum, address:

(5)(3) A CNO shall assure that policies are inplace relating to sharing of informationand documents with the between anIncident-Based Nursing Peer Reviewcommittee and a patient safetycommittee(s) that at a minimum,address:

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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57

(h)

Confi-dentiality

ofProceed-

ings

(B) separation of confidentialinformation under incident-based peer review from thenurse’s human resource file;

(A) methods in which sharedcommittee communications anddocuments are labelled andmaintained as to whichcommittee originated thedocuments or communications;

(B)(A) separation of confidential Incident-Based Nursing Peer Review informationform the nurse’s human resource file;

(A)(B) methods in which shared committeecommunications and documents arelabeled and maintained as to whichcommittee originated the documents orcommunications;

Staff Response: Staff agree withlanguage changes and re-ordering assuggested in column 3.

58

(h)

Confi-dentiality

ofProceed-

ings

(C) the confidential and separatenature of incident-based peerreview as well as documentsthat are shared with incident-based peer review, and thatviolations of said policies aresubject to being reported to theboard,

(C) the confidential and separate nature ofincident-based peer review and patientsafety committee proceedings as wellas including shared information anddocuments; and that are shared withincident-based peer review, and thatviolations of said policies are subject tobeing reported to the board

Also see new (D) below.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

59(h)

Confi-dentiality

ofProceed-

ings

(D) the treatment of nurses who violate thepolicies including when a violation mayresult in a nurse being reproted to theboard or a nursing peer reviewcommittee.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3 with one minor edit forconsistency and clarity.

TableSection

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52

60(i)

Com-mittee

Respon-sibility toEvaluate

andReport

(2) A incident-based peer reviewcommittee shall consider whether anurse’s conduct constitutes one ormore minor incidents under rule217.16, Minor Incidents. Inaccordance with this rule, theincident-based peer reviewcommittee may determine that thenurse:

(A) & (B)

(2) An incident-based peer reviewcommittee shall consider whether anurse’s conduct constitutes one or moreminor incidents under rule 217.16, MinorIncidents. In accordance with this thatrule, the incident-based peer reviewcommittee may determine that thenurse:

(A) & (B) no change

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

61

(i)Com-mittee

Respon-sibility toEvaluate

andReport

(3) Report Not Required: A nursingincident-based peer reviewcommittee is not required to submita report to the board if:

(A) the committee determines that thereported conduct was a minorincident that is not required to bereported in accordance withprovisions of rule §217.16 MinorIncidents; or

(B) the nurse has already beenreported to the board under NPA(TOC) §301.405(b) (employerreporting requirements).

(3) Report Not Required: An nursing incident-based nursing peer review committee is notrequired to submit a report to the board if:

(A) the committee determines that thereported conduct was a minorincident that is not required to bereported in accordance withprovisions of rule §217.16 MinorIncidents; or

(B) the nurse has already been reportedto the board under NPA (TOC)§301.405(b) (employer reportingrequirements).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3 with grammatical edit.

TableSection

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53

62

(i)Com-mittee

Respon-sibility toEvaluate

andReport

(4) If a incident-based peer reviewcommittee finds that a nursehas engaged in conduct subjectto reporting to the board, thecommittee shall submit to theboard a written, signed reportthat includes:

(A)-(F)

4) If a incident-based peer review thecommittee determines it is required toreport a nurse finds that a nurse hasengaged in conduct subject to reportingto the board, the committee shall submitto the board a written, signed report thatincludes:

(A)-(F) No changes

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

63

(i)Com-mittee

Respon-sibility toEvaluate

andReport

(6)(A) If an incident-based peer reviewcommittee finds that factors outsidethe nurse’s control contributed to anurse’s error, in addition toreporting to a patient safetycommittee, the incident-based peerreview committee may also makerecommendations for the nurse, upto and including reporting to theboard.

(6)(B) an incident-based peer reviewcommittee may extend the time linefor completing the incident-basedpeer review process (extending the45 days by no more than anadditional 45 days) if the committeemembers believe they need inputfrom a patient safety committee.The incident-based peer reviewcommittee must complete theincident-based peer review of thenurse within this 90-day time frame.

(6)(A) If an incident-based peer review committeefinds that factors outside the nurse’s controlcontributed to a deficiency in care nurse’serror, in addition to reporting to a patientsafety committee, the incident-based peerreview committee may also makerecommendations for the nurse, up to andincluding reporting to the board.

(6)(B) An incident-based peer review committeemay extend the time line for completing theincident-based peer review process(extending the 45 days by no more than anadditional 45 days) if the committeemembers believe they need input from apatient safety committee. The incident-based peer review committee mustcomplete the incident-based peer its reviewof the nurse within this 90-day time frame.

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

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54

64(i)

Com-mittee

Respon-sibility toEvaluate

and Report

(7) A incident-based peer reviewcommittee’s determination to reporta nurse to the board cannot beoverruled, changed, or dismissed.

(7) An incident-based peer review committee’sdetermination to report a nurse to the boardcannot be overruled, changed, or dismissed.

Staff Response: Staff agree withgrammatical edit as suggested incolumn 3.

65

(j)Nurse’sDuty toReport

(j) Nurse’s Duty to Report

(1)(A) The reporting nurse shall benotified of the incident-based peerreview committee’s actions orfindings and shall be subject toNursing Peer Review (TOC)§303.006 (confidentiality of peerreview proceedings); and

(j) Nurse’s Duty to Report

(1)(A) The reporting nurse shall be notified of theincident-based peer review committee’s actions orfindings subject to the nurse’s agreeing in writing notto disclose that information except as permitted by§303.006 of the NPR Law (TOC ch. 303) and shallbe subject to Nursing Peer Review (TOC) §303.006(confidentiality of peer review proceedings); and

Staff Response: Staff disagree withlanguage changes as suggested in column3. Reporting nurse clearly has knowledge ofincident reported outside of peer reviewproceeding and is not prohibited fromreporting to BON. §303.006(f) applies toinformation PR member or person attendingproceeding obtained solely through the PRproceeding. No statutory basis for writtenagreement.

Staff recommend leave language asoriginally submitted by NPAC.

(1)(A) The reporting nurse shall be notified of theincident-based peer review committee’s actionsor findings subject to the nurse’s agreeing inwriting not to disclose that information except aspermitted by §303.006 of the NPR Law (TOC ch.303) and shall be subject to Nursing Peer Review(TOC) §303.006 (confidentiality of peer reviewproceedings); and

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66

(j)Nurse’sDuty toReport

(2) A nurse may not be suspended,terminated, or otherwisedisciplined or discriminatedagainst for filing a report madein good faith under this rule and NPA (TOC)§301.402(f)(retaliation for agood faith report prohibited). Aviolation of this subsection orNPA (TOC) §301.402(f) issubject to NPA (TOC) §301.413(retaliatory action prohibited).

(2) A nurse may not be suspended,terminated, or otherwise disciplined ordiscriminated against for filing a reportmade in good faith without malice underthis rule and NPA (TOC)§301.402(f)(retaliation for a good faithreport made without malice prohibited).A violation of this subsection or NPA(TOC) §301.402(f) is subject to NPA(TOC) §301.413 that provides a nurseor individual retaliated against a right tofile suit to recover damages. The nurseor individual also may file a complaintwith an appropriate licensing agency, (retaliatory action prohibited).

Staff Response re: The BON does notregulate “individuals” so regardless ofbroader application of statutes, BON rulecan only address “nurses.” Also, needsfurther clarification re: employment vs.licensure issues vs. facility regulation. Staffrecommend the following language:

(2) A nurse may not be suspended,terminated, or otherwise disciplined ordiscriminated against for filing a reportmade in good faith without malice underthis rule and NPA (TOC) §301.402(f)(retaliation for a good faith report madewithout malice prohibited). A violation ofthis subsection or NPA (TOC)§301.402(f) is subject to NPA (TOC)§301.413 that provides a nurse orindividual retaliated against the right tofile civil suit to recover damages. Thenurse or individual also may also file acomplaint with an the appropriatelicensing regulatory agency thatlicenses or regulates the nurse’spractice setting. The BON does nothave regulatory authority overpractice settings or civil liability.

67

(l)Integrity

ofIncident-

BasedPeer

ReviewProcess

(l) Integrity of Incident-Based PeerReview Process

(1)NPA (TOC) chapter 303,requires that incident-based peerreview be conducted in good faith.A nurse who knowingly participatesin incident-based peer review inbad faith is subject to disciplinaryaction by the board under the NPA(TOC) §301.452(b).

(l) Integrity of Incident-Based Peer ReviewProcess

(1) NPA (TOC) chapter 303, requiresthat Incident-Based Peer Reviewmust be conducted in good faith. Anurse who knowingly participates inincident-based peer review in badfaith is subject to disciplinary actionby the board under the NPA (TOC)§301.452(b).

Staff Response: Staff agree withlanguage changes as suggested incolumn 3.

56

68

(m)Report-

ingConductof otherPracti-

tioners orEntities:Whistle-blowerProtec-tions

(m) Reporting Conduct of otherPractitioners orEntities/WhistleblowerProtections

(ii) A person may not suspend orterminate the employment of, orotherwise discipline or discriminateagainst, a person who reports,without malice, under this section. A violation of this subsection issubject to §301.413(retaliatoryaction prohibited).

(m) Reporting Conduct of other Practitionersor Entities: Whistleblower Protections

(ii) A person may not suspend orterminate the employment of, orotherwise discipline or discriminateagainst, a person who reports,without malice, under this section. A violation of this subsection issubject to §301.413 that provides anurse or individual retaliated againsta right to file suit to recoverdamages. The nurse or individualalso may file a complaint with anappropriate licensing agency, (retaliatory action prohibited).

Staff Response re: The BON does not regulate“individuals” so regardless of broader applicationof statutes, BON rule can only address “nurses.”Also, needs further clarification re: employmentvs. licensure issues vs. facility regulation. Staffrecommend the following language:

(ii) A person may not suspend orterminate the employment of, orotherwise discipline or discriminateagainst, a person who reports,without malice, under this section. Aviolation of this subsection is subjectto §301.413 that provides a nurse the right to file civil suit to recoverdamages. The nurse or individualalso may also file a complaint withan the appropriate licensingregulatory agency that licenses orregulates the nurse’s practicesetting. The BON does not haveregulatory authority over practicesettings or civil liability.

1

BON Responses to CommentsProposed Rule 217.20 Safe Harbor Peer Review

Published in November 2, 2007 Texas Register (Vol. 32; No. 44)

NOTE: Only Includes Sections w/Changes; NOT Complete Rule Language (See Attachment B)

TableSection

Proposed Rule Language Recommended Changes BON Response to Comments{see Attachments C-1 & C-2}

1

(a)Defi-

nitions

(a) Definitions.

(__) Assignment:Designating responsibility for the provision orsupervision of nursing care for an individualor group of patients for a defined period oftime in a defined work setting including thespecified functions, duties, or amount of workdesignated as the individual nurse'sresponsibility. Changes in the clinicalsituation may occur due to volume, intensity,resource availability, or other variables. If thechanges in the clinical situation modify thelevel of nursing care provided or level ofsupervision required including the specifiedfunctions, duties, or amount of workdesignated in the original assignment, theresult is a new assignment

New definition proposed by TNA to emphasizethat when the clinical situation changes a newassignment may result.

Staff Response: Safe Harbor applies to non-clinical situations as well as clinical situations.Staff propose the more generic definition.Specifications for when safe harbor isappropriate to invoke are included moreappropriately elsewhere in the rule language:

Assignment: Designated responsibility for theprovision or supervision of nursing care for anindividual or group of patients for a definedperiod of time in a defined work setting. Thisincludes but is not limited to including thespecified functions, duties, practitioner orders,supervisory directives, or and amount of workdesignated as the individual nurse'sresponsibility. Changes in the clinical situationnurse’s licensure responsibilities may occurat any time during the work period .due tovolume, intensity, resource availability, or othervariables. If the changes in the clinical situationmodify the level of nursing care provided or levelof supervision required including the specifiedfunctions, duties, or amount of work designatedin the original assignment, the result is a newassignment.

Suggested Language from Comments: Blue BON Recommended Language: Green Formatting sacrificed for space purposes.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

2

2

(a)Defi-

nitions

(a) Definitions.

(1) Bad Faith: Taking action notsupported by a reasonable factual orlegal basis. The term includes falselyportraying the facts surrounding theevents under review, acting out ofmalice or personal animosity towardsthe nurse, acting from a conflict ofinterest, or denying a nurse dueprocess.

(1) (2) Bad Faith: Knowingly or recklesslytaking taking action not supported by areasonable factual or legal basis. The termincludes falsely portraying misrepresentingthe facts surrounding the events underreview, acting out of malice or personalanimosity towards the nurse, acting from aconflict of interest, or knowingly or recklesslydenying a nurse due process.

See multiple comments on “good faith,”“bad faith.” and “malice.” TNA commentletter(page 3) #3 Application of Good Faith,Bad faith and Malice Standards particularlyhelpful background.

Staff Response: Staff agree with languagechanges as suggested in column 3.Definitions are the same for both rules217.19 and 217.20.

3

(a)Defi-

nitions

(3) Conduct Subject to Reportingmeans conduct by a nurse that:

(A) violates the NursingPractice Act (NPA)chapter 301 or a boardrule and contributed tothe death or seriousinjury of a patient;

(3)(4) Conduct Subject to Reporting means definedby §301.401 of the Nursing Practice Act asconduct by a nurse that:

(A) violates the Nursing Practice Act(NPA) chapter 301 or a board ruleand contributed to the death orserious injury of a patient;

Staff Response: Staff agree with language changesas suggested in column 3. Definitions are the same forboth rules 217.19 and 217.20.

4

(a)Defi-

nitions

(D) indicates that the nurse lacksknowledge, skill, judgment, orconscientiousness to such anextent that the nurse's continuedpractice of nursing couldreasonably be expected to pose arisk of harm to a patient or anotherperson, regardless of whether theconduct consists of a singleincident or a pattern of behavior.[NPA Section 301.401(1)]

(D) indicates that the nurse lacks knowledge, skill,judgment, or conscientiousness to such anextent that the nurse's continued practice ofnursing could reasonably be expected to posea risk of harm to a patient or another person,regardless of whether the conduct consists ofa single incident or a pattern of behavior.[NPA Section 301.401(1)]

Staff Response: Staff agree with language changesas suggested in column 3. Definitions are the same forboth rules 217.19 and 217.20.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

3

5

(a)Defi-

nitions

(4) Duty to a patient: conduct requiredby standards of nursing practice[rule 217.11] or prohibited underunprofessional conduct [rule217.12] including administrativedecisions directly affecting anurse’s ability to comply with thatduty.

(5) Duty to a patient: conduct required by anurse’s duty to comply with the standards ofnursing practice (§ 217.11) or prohibitedunder and not to engage in unprofessionalconduct (§ 217.12) including administrativedecisions directly affecting a nurse’s ability tocomply with that duty.

Staff Response: Agree and make the followingadditional clarification changes in language:

(5) Duty to a patient: A nurse’s duty isto always advocate for patientsafety, including any nursingaction necessary to comply with thestandards of nursing practice (§ 217.11) andnot to avoid engaging inunprofessional conduct (§ 217.12). Thisincludes including administrative decisionsdirectly affecting a nurse’s ability to complywith that duty.

6

(a)Defi-

nitions

(5) Good Faith: Taking actionsupported by a reasonable factualor legal basis. Good faithprecludes falsely portraying thefacts surrounding the events underreview, acting out of malice orpersonal animosity towards thenurse, acting from a conflict ofinterest, or denying a nurse dueprocess.

(5)(6) Good Faith: Taking action supported by areasonable factual or legal basis. Good faithprecludes misrepresenting falsely portrayingthe facts surrounding the events under review,acting out of malice or personal animositytowards the nurse, acting from a conflict ofinterest, or knowingly or recklessly denying anurse due process.

See multiple comments on “good faith,”“bad faith.” and “malice.” TNA commentletter(page 3) #3 Application of Good Faith,Bad faith and Malice Standards particularlyhelpful background.

Staff Response: Staff agree with language changesas suggested in column 3. Definitions will be the samefor both rules 217.19 and 217.20. Additionalclarification suggestions and/or examples offered incomments will be considered for inclusion in FAQs onpeer review.

7

(a)Defi-

nitions

(7) Malice: Acting with a specific intent to dosubstantial injury or harm to another.

Added by TNA-- modified from definition in §41.001,Civil Remedies & Procedure Code; See multiplecomments on “good faith,” “bad faith.” and“malice.” TNA comment letter(page 3) #3Application of Good Faith, Bad faith andMalice Standards particularly helpfulbackground.

Staff Response: See multiple comments anddiscussion on “good faith,” “bad faith.” and “malice.”Staff agree with language changes as suggested incolumn 3.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

4

8

(a)Defi-

nitions

(8) Nursing Peer Review (NPR law):Consists of chapter 303 of theTexas Occupations Code (TOC).Part of the Texas statutes, or laws,and can only be changed by theTexas Legislature. Nurses involvednursing peer review must complywith the NPR statutes.

(10) Nursing Peer Review Law (NPR law):Consists of Chapter 303 of the TexasOccupations Code (TOC). Part of the Texasstatutes, or laws, and can only be changed bythe Texas Legislature. Nurses involved innursing peer review must comply with theNPR Law statutes.

Staff Response: Staff agree with language changesas suggested in column 3. Definitions are the same forboth rules 217.19 and 217.20.

9

(a)Defi-

nitions

(9) Nursing Practice Act (NPA):Includes chapter 301 of the TexasOccupations Code (TOC). Part ofthe Texas statutes, or laws, andcan only be changed by the TexasLegislature. Nurses must complywith the NPA statutes.

(11) Nursing Practice Act (NPA): Includes Chapter301 of the Texas Occupations Code (TOC).Part of the Texas statutes, or laws, and canonly be changed by the Texas Legislature.Nurses must comply with the NPA statutes.

Staff Response: Staff agree with language changesas suggested in column 3. Definitions are the same forboth rules 217.19 and 217.20.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

5

10

(a)Defi-

nitions

(10) Patient Safety Committee: Anycommittee established by anassociation, school, agency,health care facility, or otherorganization to address issuesrelating to patient safety thatincludes:

(A) the entity’s medicalstaff composed ofindividuals licensedunder Subtitle B[Medical Practice Act,Occupations Code§151.001 et seq.];

(B) a medical committeeunder Subchapter D,chapter 161 Healthand Safety Code[§§161.031-.033]; or

(C) a multi-disciplinarycommittee includingnursingrepresentation, or anycommittee establishedby or contracted withinthe same entity topromote best practicesand patient safety, asappropriate.

(12) Patient Safety Committee: Any committeeestablished by an association, school, agency,health care facility, or other organization toaddress issues relating to patient safety thatincludes including:

(A) the entity’s medical staff composedof individuals licensed underSubtitle B [Medical Practice Act,Occupations Code §151.001 etseq.];

(B) a medical committee underSubchapter D, chapter 161 Healthand Safety Code [§§161.031-.033];or

(C) a multi-disciplinary committeeincluding nursing representation, orany committee established by orcontracted within the same entity topromote best practices and patientsafety, as appropriate..

Staff Response: Staff agree with language changesas suggested in column 3.

J. Hopkins requested inclusion of “medical peer reviewcommittees as defined in Section 151.002(8).”

Staff Response: Language in proposed definition ofPt. Safety Committee (12)(A) comes directly from thestatute language and “et seq.” includes the abovementioned section of the MPA. Therefore, additionseems duplicative, and was not added. This commentwill be considered as explanatory in FAQ documentson peer review.

§303.0015 addresses contracting peerreview, but not pt safety committee:

(C) a multi-disciplinary committeeincluding nursing representation, orany committee established by orcontracted within the same entity topromote best practices and patientsafety, as appropriate.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

6

11

(a)Defi-

nitions

(11) Peer Review: Defined in theNPR law, contained withinTexas Occupations Code(TOC) §303.001(5), it is theevaluation of nursing services,the qualifications of a nurse, thequality of patient care renderedby a nurse, the merits of acomplaint concerning a nurseor recommendation regarding acomplaint. The peer reviewprocess is one of fact finding,analysis and study of events bynurses in a climate of collegialproblem solving focused onobtaining all relevantinformation about an event.

(13) Peer Review: Defined in the NPR law,contained within Texas OccupationsCode (TOC) by §303.001(5) of NPR Law(TOC ch. 303), it is as the evaluation ofnursing services, the qualifications of anurse, the quality of patient carerendered by a nurse, the merits of acomplaint concerning a nurse orrecommendation regarding a complaint.The peer review process is one of factfinding, analysis and study of events bynurses in a climate of collegial problemsolving focused on obtaining all relevantinformation about an event.

BON agrees to changes at left.

One comment requested addition of the following todefinition: “the performance of incident-based peerreview, safe harbor peer review, or any other reviewrequired by the Nursing Practice Act or TBON rules.”

Staff response: Agree in concept. Recommendadding the following language:

Peer review conducted by any entity must complywith NPR Law and with applicable Board rulesrelated to incident-based or safe harbor peerreview.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

7

12

(a)Defi-

nitions

(12) Safe Harbor: a process allowingan individual to request in good faitha review of a situation, action,conduct, or assignment while beingprotected from retaliation andlicensure liability. Safe Harbor mustbe invoked prior to or at the time theassignment is made or conductrequested. This includes changes ininitial practice situation,assignments, or patient acuities thatadversely impact the conduct orassignment requested of the nursesuch that a nurse believes in goodfaith that his/her duty to the patientwould be violated. This change mayoccur at any time.

(14) Safe Harbor: A a process allowing anindividual to request in good faith areview of a situation, action, conduct,or assignment while being protectedfrom retaliation and licensure liability.

Safe Harbor must be invoked prior toengaging in the conduct orassignment for which Safe Harbor isrequested. or at the time theassignment is made or conductrequested. This includes changes ininitial practice situation, assignments,or patient acuities that adverselyimpact the conduct or assignmentrequested of the nurse such that anurse believes in good faith thathis/her duty to the patient would beviolated. This change may occur atany time.

Definition of “assignment” as orig. addedalso deleted language here re: changesoccurring at any time during the shift. BONstaff believe it is beneficial to leave inlanguage that clarifies a changes inassignment may occur at anytime. Staff alsobelieve need to avoid term “liability” asnurses already confuse licensureresponsibility with civil liability. BON stafffurther suggest clarification within thedefinition as follows:

Safe Harbor: A process that protects a nursefrom employer retaliation and licensuresanction liability allowing an individual to whena nurse makes a request in good faith a request for peer review of a situation, action,conduct or an assignment or conduct that thenurse is requested to perform and a nurse whilebeing protected from retaliation and licensureliability. believes could result in a violation ofthe NPA (TOC) or board rules. Safe Harbormust be invoked prior to engaging in the conductor assignment for which Safe Harbor peerreview is requested, and may be invoked atanytime during the work period when theinitial assignment changes.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

8

13

(a)Defi-

nitions

(13) Safe Harbor Peer Review: Thedetermination if the requestedconduct or assignment could havepotentially endangered a patient,resulting in the nurse violatinghis/her duty to the patient. A safeharbor peer review committeereviewing a nurse’s request for safeharbor must also ascertain ifexternal factors in the systematicapproach and/or nursing policiesrelated to the conduct under reviewcould prevent the recurrence of thesame or similar unsafe situation. Inaccordance with Nursing PeerReview (TOC) §303.011(b), if thecommittee determines that externalfactors contributed to a nurse’srequest for safe harbor, thecommittee is to report to a patientsafety committee.

(15) Safe Harbor Nursing Peer Review: Thedetermination if the requested conduct orassignment could have potentiallyendangered a patient, resulting result inthe nurse violating his/her duty to thepatient. A safe harbor Nursing PeerReview Committee reviewing a nurse’srequest for Safe Harbor must alsoascertain if external factors contributed tothe nurse’s request and whether systemchanges or changes in nursing policiescould prevent the recurrence of the sameor similar situation. reviewing a nurse’srequest for safe harbor must alsoascertain if external factors in thesystematic approach and/or nursingpolicies related to the conduct underreview could prevent the recurrence ofthe same or similar unsafe situation. Inaccordance with Nursing Peer Review (TOC)§303.011(b), if the committee determines thatexternal factors contributed to a nurse’srequest for safe harbor, the committee is toshall report to a patient safety committee.

Staff Response: Staff agree with language changesas suggested in column 3. Definitions are the same forboth rules 217.19 and 217.20.

13

(a)Defi-

nitions

(14) Texas Occupations Code (TOC):One part of the Texas Statutes, orlaws. The Nursing Practice Act(NPA) and Nursing Peer Review(NPR law) statutes are but a few ofthe chapters of Texas lawscontained within the TOC.

(16) Texas Occupations Code (TOC): One part ofthe topical subdivisions or “codes” into whichthe Texas Statutes or laws are organized. TheOccupations Code contains the statutesgoverning occupations and professionsincluding the health professions and includesboth the NPA and NPR Law. TheOccupations Code can be changed only bythe Texas Legislature. The Nursing PracticeAct (NPA) and Nursing Peer Review (NPRlaw) statutes are but a few of the chapters ofTexas laws contained within the TOC.

Staff Response: Staff agree with language changesas suggested in column 3, with minor editing as below.Definitions are the same for both rules 217.19 and217.20.

The Occupations Code contains the statutes governingoccupations and professions including the healthprofessions. and includes Both the NPA and NPRLaw are located in the TOC.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

9

14

(a)Defi-

nitions

(15) Whistleblower Protections:protections available to a nurse thatprohibit retaliatory action by anemployer or other entity for:

(A) a request made by anurse under Nursing PeerReview (TOC)§303.005(c) regardinginvoking safe harborprotections, or

(17) Whistleblower Protections:protections available to a nurse thatprohibit retaliatory action by anemployer or other entity because thenurse:

(A) a made by a nurse a goodfaith request for Safe HarborNursing Peer Review underNursing Peer Review (TOC)§303.005(c) of NPR Law(TOC ch. 303) regardinginvoking safe harborprotections, , or

Staff Response: Staff agree with language changesas suggested in column 3 with minor editorial change.Definitions are the same for both rules 217.19 and217.20.

(A) a made by a nurse a good faith request forSafe Harbor Nursing Peer Review underNursing Peer Review (TOC) §303.005(c) ofNPR Law (TOC ch. 303) regarding invokingsafe harbor protections, and rule 217.20;or

15

(a)Defi-

nitions

(B) under the NPA (TOC) §301.352regarding a nurse’s refusal toengage in an act or omissionrelating to patient care that wouldconstitute grounds for reporting thenurse to the board, that constitutesa minor incident, or that violates theNPA or board rules; or

(B) refused under §301.352 of the NPA (TOC ch.301) regarding a nurse’s refusal to engage inan act or omission relating to patient care thatwould constitute grounds for reporting thenurse to the board, that constitutes a minorincident, or that violates the NPA or boardrules; or

Staff Response: Staff believe the definition under (b)should be simplified for ease in understanding, andgreater detail placed either later in rule or in FAQs asneeded

(B) B) refused under §301.352 of the NPA(TOC ch. 301) (Protection for Refusal toEngage in Certain Conduct) regarding anurse’s refusal to engage in an act oromission relating to patient care that wouldconstitute grounds for reporting thenurse to the board, that constitutesa minor incident, or that violates aviolation of the NPA or boardrules; or

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

10

16

(a)Defi-

nitions

(C) a report made by a nurse underNPA (TOC) §301.4025 (relatedto patient safety concerns) andsection (k) of this rule, that mayalso be protected under otherlaws or regulations, concerningunsafe practitioners or unsafepatient care practices orconditions. Protection fromretaliatory action applies to anyreport made to a licensingagency, accrediting body,regulatory entity, oradministrative personnel withinthe facility or organization thatthe nurse believes has thepower to take corrective action.

(C) a report made a report by a nurse underNPA (TOC) §301.4025 (report of unsafepractices of non-nurse entities) andsection (i)(2) of this section rule, that mayalso be protected under other or anotherlaw or regulations that authorizes reportingof concerning unsafe practitioners orunsafe patient care practices orconditions. Protection from retaliatoryaction applies to any report made to alicensing agency, accrediting body,regulatory entity, or administrativepersonnel within the facility ororganization that the nurse believes hasthe power to take corrective action.

Staff Response: Staff believe the definition under (c)should be simplified for ease in understanding, andgreater detail placed either later in rule or in FAQs asneeded:

(C) made a lawful report of unsafepractitioners, or unsafe patient carepractices or conditions, in accordance underwith NPA (TOC) §301.4025 (report ofunsafe practices of non-nurse entities) andsection (i)(j)(2) of this section or another lawor regulations that authorizes reporting ofconcerning unsafe practitioners or unsafe patientcare practices or conditions. Protection fromretaliatory action applies to any report made to alicensing agency, accrediting body, regulatoryentity, or administrative personnel within thefacility or organization that the nurse believeshas the power to take corrective action.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

11

17

(b)Purpose

(b) Purpose

The purpose of this rule is to defineminimum due process to which a nurseis entitled under safe harbor peer review,to provide guidance to facilities,agencies, employers of nurses, oranyone who utilizes the services ofnurses in the development andapplication of peer review plans; toassure that nurses have knowledge ofthe plan as well as their right to invokeSafe Harbor, and to provide guidance tothe peer review committee in its factfinding process. Safe Harbor must beinvoked prior to or at the time theassignment is made or conductrequested. This includes changes ininitial practice situation, assignments, orpatient acuities that adversely impact theconduct or assignment requested of thenurse such that a nurse believes in goodfaith that his/her duty to the patientwould be violated. This change mayoccur at any time.

(b) Purpose

The purpose of this rule is to

(1) define the process for invoking Safe Harbor;

(2) define minimum due process to which anurse is entitled under safe harbor peerreview,

(3) to provide guidance to facilities,agencies, employers of nurses, oranyone who utilizes the services ofnurses in the development andapplication of peer review plans;

(4) to assure that nurses have knowledge ofthe plan as well as their right to invokeSafe Harbor; and to

Staff Response: Staff agree with language changesas suggested in column 3.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

12

18

(b)Purpose

(5) provide guidance to the peer reviewcommittee in making its determination ofthe nurse’s duty to the patient. factfinding process.

Safe Harbor must be invoked prior to orat the time the assignment is made orconduct requested. This includeschanges in initial practice situation,assignments, or patient acuities thatadversely impact the conduct orassignment requested of the nurse suchthat a nurse believes in good faith thathis/her duty to the patient would beviolated. This change may occur at anytime.

Staff Response: Staff agree with language changesas suggested in column 3.

19

(c) Applica-bility of

SafeHarborPeer

Review

(c) Applicability of Safe HarborPeer Review:

(1) Nursing Peer Review (TOC) §303.0015 requires a personwho regularly employs, hires orcontracts for the services of ten(10) or more nurses to permit anurse to request Safe HarborPeer Review when the nurse isrequested or assigned toengage in conduct that thenurse believes is in violation ofhis/her duty to a patient.

(2) Any person or entity thatconducts Safe Harbor peerreview is required to complywith the requirements of thisrule.

(c) Applicability of Safe Harbor Nursing PeerReview:

(1) Nursing Peer Review (TOC) §303.0015requires a person who regularly employs,hires or contracts for the services of ten(10) or more nurses (for peer review ofan RN, at least 5 of the 10 must be RNs)to permit a nurse to request Safe HarborPeer Review when the nurse isrequested or assigned to engage inconduct that the nurse believes is inviolation of his/her duty to a patient.

(2) Any person or entity that conducts SafeHarbor Nursing Peer Review is requiredto comply with the requirements of thisrule.

Staff Response: Staff agree with language changesas suggested in column 3.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

13

20

(d)Invoking

SafeHarbor

(d) Invoking Safe Harbor

(1) Safe Harbor must beinvoked prior to or at thetime the assignment ismade or conductrequested. This includeschanges in initial practicesituation, assignments, orpatient acuities thatadversely impact theconduct or assignmentrequested of the nursesuch that a nursebelieves in good faith thathis/her duty to the patientwould be violated. Thischange may occur at anytime.

(d) Invoking Safe Harbor

(1) Safe Harbor must be invokedprior to engaging in the conductor assignment and at one of thefollowing times:

A) when the conduct is requestedor assignment made;

B) when changes in the clinicalsituation or the nurse’sassessment of the assignmentso modify the level of nursingcare required, or the specifiedfunctions, duties, or amount ofwork originally assigned, that anew assignment occurs asdefined by Subsec. (a)(__); or

(1) Safe Harbor must be invokedprior to or at the time theassignment is made or conductrequested. This includeschanges in initial practicesituation, assignments, orpatient acuities that adverselyimpact the conduct orassignment requested of thenurse such that a nursebelieves in good faith thathis/her duty to the patient wouldbe violated. This change mayoccur at any time.

Staff Response: Staff agree with languagechanges as suggested in column 3 with theadditional amendments to language asfollows:

B) when changes in the clinicalsituation may occur or the nurse’sassessment of the in the requestor assignment that so modify thelevel of nursing care orsupervision required compared towhat was originally requested orassigned that or a nurse believesin good faith that patient harmmay result. specified functions,duties, or amount of work originallyassigned, that a new assignmentoccurs as defined by Subsec.(a)(__); or

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

14

21

(d)Invoking

SafeHarbor

(2) At the time the nurse isrequested to engage in theconduct or assignment, orrefuses to engage in therequested conduct orassignment, he/she mustnotify in writing thesupervisor requesting theconduct or assignment thatthe nurse is invoking SafeHarbor. The content of thisnotification must at leastmeet the requirements for aninitial written request set outin subsection (3) below. FullDetailed documentation ofthe Safe Harbor request thatcomplies with subsection (4)below must be completedbefore the end of the workperiod.

(2) At the time the nurse isrequested to engage in theconduct or assignment, orrefuses to engage in therequested conduct orassignment, he/she The nurse must notify in writingthe supervisor requesting theconduct or assignment in writingthat the nurse is invoking SafeHarbor. The content of thisnotification must at least meetthe requirements for an InitialQuick Request Form describedwritten request set out inparagraph subsection (3) below.A Full Detailed written accountdocumentation of the SafeHarbor request that meets theminimum requirements for theDetailed Written Accountdescribed in paragraphcomplies with subsection (4)below must be completedbefore leaving the work settingat the end of the work period.

Staff Response: Agree w/languagechanges in column #3 except as follows.Change recommended to simplify and avoidsimilar language (“initial” and “quick”) thatcould be conceived as different means ofinvoking safe harbor.

...for an Initial a Quick Request Formdescribed ....

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

15

22

(d)Invoking

SafeHarbor

(3) An initial written notification orrequest for Safe Harbor mustinclude:

(A) The nurse(s) namemaking the safeharbor request andhis/her signature(s);

(B) The date and time ofthe request;

(C) location of where theconduct or assignmentis to be completed;

(D) Name of the personrequesting the conductor making theassignment;

(E) A brief explanation ofwhy safe harbor isbeing requested.

(3) Initial Quick Request Form

An initial written notification or request forSafe Harbor must include:

(A) This form may be used toinvoke safe harbor and may bein any format as long as it is inwriting and contains thefollowing information:

(A) (i) the nurse(s) name making thesafe harbor request and his/hersignature(s);

(B) (ii) the date and time of therequest;

(C) (iii) the location of where the conductor assignment is to be completed;

(D) (iv) the name of the personrequesting the conduct or making theassignment;

(E) (v) a brief explanation of why safeharbor is being requested.

BON Staff Response: Suggested (3)(A)references “this form” but is not clear that a BONform exists. Staff recommend the followingsubstitute language:

(3) Initial Quick Request Form

(3) (A) A nurse wishing to invoke SafeHarbor must make an initial requestin writing that at a minimum includesthe following. (i)-(v) unchanged

(B) The BON Safe Harbor Initial QuickRequest Form may be used toinvoke the initial request for SafeHarbor, but use of the form is notrequired. The initial written requestmay be in any written formatprovided the above minimuminformation is provided.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

16

23

(d)Invoking

SafeHarbor

(4) The detailed written accountmust include at a minimum:

(A) the conduct assigned orrequested, including the nameand title of the person makingthe assignment or request;

(B) a description of the practicesetting (e.g., the nurse’sresponsibilities, resourcesavailable, extenuating orcontributing circumstancesimpacting the situation);

(C) a detailed description of howthe requested conduct orassignment would have violatedthe nurse’s duty to a patient orany other provision of the NPAand Board Rules. If possible,reference the specific standard(Rule 217.11) or other sectionof the NPA and/or Boardrules the nurse believeswould have been violated. Ifa nurse refuses to engage inthe requested conduct orassignment, the nurse mustdocument the existence of arationale listed undersubsection (g) of this rule.

(4) The Detailed Written Account mustinclude at a minimum:

(A) This form may be used to invoke safeharbor and may be in any format as longas it is in writing and contains thefollowing information:

(A) (i) the conduct assigned or requested,including the name and title of the personmaking the assignment or request;

(B) (ii) a description of the practice setting (e.g.,the nurse’s responsibilities, resourcesavailable, extenuating or contributingcircumstances impacting the situation);

(C) (iii)a detailed description of how the requestedconduct or assignment would have violated thenurse’s duty to a patient or any other provision ofthe NPA and Board Rules. If possible, referencethe specific standard (Rule 217.11) or othersection of the NPA and/or Board rules the nursebelieves would have been violated. If a nurserefuses to engage in the requested conduct orassignment, the nurse must document theexistence of a rationale listed under subsection(g) of this rule.

BON Staff Response: Suggested (4)(A)references a “form” but is not clear that this isthe same “form” [BON Comprehensive RequestForm] addressed in suggested subsection (5)below.

Staff recommend the following substitutelanguage:

(4) Comprehensive Detailed Written AccountRequest for Safe Harbor Peer Review

(4) (A) A nurse who invokes Safe Harbormust supplement the initial writtenQuick Request Form under section(3)(A) by submitting acomprehensive request in writingbefore leaving the work setting atthe end of the work period. Thiscomprehensive written request mustinclude a minimum of the followinginformation:

(i)-(vi) unchanged

(B) The BON Safe Harbor InitialComprehensive Request for SafeHarbor Form may be used whensubmitting the detailed request forSafe Harbor, but use of the form isnot required. The comprehensive written request may be in any writtenformat provided the above minimuminformation is included.

(A)(i) This form may be used toinvoke safe harbor or to makethe report required at the endof the work period underParagraph (3)(B) tosupplement the Initial QuickRequest Form

.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

17

24

(d)Invoking

SafeHarbor

(D) any other copies of pertinentdocumentation available at thetime. Additional documents maybe submitted to the committeewhen available at a later time;and

(E) the nurse’s name, title, andrelationship to the supervisormaking the assignment orrequest.

(iv) If applicable, the rationale for the nurse’snot engaging in the requested conduct orassignment awaiting the nursing peerreview committee’s determination as tothe nurse’s duty. The rationale shouldrefer to one of the justifications describedin Subsection (g)(2) for not engaging inthe conduct or assignment awaiting apeer review determination.

(D) (v) any other copies of pertinentdocumentation available at the time.Additional documents may be submittedto the committee when available at alater time; and

(E) (vi) the nurse’s name, title, and relationship tothe supervisor making the assignment or request.

Staff Response: Staff agree with languagechanges as suggested in column 3 (seeabove section).

25

(d)Invoking

SafeHarbor

(B) If this form is used to invoke safe harbor,the nurse must complete the DetailedWritten Account described in Subdivision(4) as a supplemental report beforeleaving the work setting at the end of thework period.

BON Staff Response: BON staff recommenddelete. See substitute language in (4)(A) above. (B) If this form is used to invoke safe

harbor, the nurse must complete theDetailed Written Account described inSubdivision (4) as a supplementalreport before leaving the work setting atthe end of the work period.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

18

26

(d)Invoking

SafeHarbor

(5) BON Comprehensive Request Form

(A) The BON ComprehensiveRequest Form is a board -developed form that can befound on the BON’s websitewww.bon.state.tx.us. It includesa process for the nurse andfacility to follow once therequest for safe harbor hasbeen made.

(B) This form may be used toinvoke safe harbor or tomake the report required atthe end of the work periodunder Paragraph (2)(B) tosupplement the Initial QuickRequest Form.

BON Staff Response: Suggested subsection(d)(5)(A) seems more appropriate for addition toFAQs on peer review than in rule language.

Recommend delete (d)(5)(A) in rule languageand incorporate (d)(5)(B) into subsection (4).

(5) BON Comprehensive Request Form

(A) The BON ComprehensiveRequest Form is a board -developed form that can befound on the BON’s websitewww.bon.state.tx.us. Itincludes a process for thenurse and facility to followonce the request for safeharbor has been made.

(B) This form may be used toinvoke safe harbor or to makethe report required at the endof the work period underParagraph (2)(B) tosupplement the Initial QuickRequest Form.

27

(d)Invoking

SafeHarbor

(5) If the nurse does not submit theinitial request for Safe Harborusing the form on the boardweb site, the facility and nurseshall adhere to the Safe Harborprocess as outlined on theboard’s form.

(5)(6) If the nurse does not use the BONComprehensive Request Formdescribed in Subdivision (5) to invokesafe harbor or to make the reportrequired at the end of the workperiod under Paragraph (2)(B) tosupplement the Initial Quick RequestForm, the facility and nurse mustfollow the Safe Harbor process asoutlined in this form.

Staff Response: Simplify language

(5)(6) If the nurse does not use the BONQuick Request and ComprehensiveRequest Forms described inSubdivision (d)(2) to invoke safe harboror to make the detailed report requiredat the end of the work period underParagraph (2)(B) to supplement theQuick Request Form, the facility andnurse must follow the Safe Harborprocess as outlined in this rule.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

19

28

(e)Safe

HarborProtec-tions

(e) Safe Harbor Protections

(1) To activate protectionsoutlined in Nursing PeerReview (TOC) §303.005(c),the nurse shall:

(A) Invoke Safe Harborin good faith.

(B) At the time thenurse is requestedto engage in theconduct orassignment, notifythe supervisor thatthe nurse intends toinvoke Safe Harborin accordance withsubsection (d). Thismust be done beforeaccepting orrefusing theassignment. Thisincludes changes ininitial practicesituation,assignments, orpatient acuities thatadversely impact theconduct orassignmentrequested of thenurse such that anurse believes ingood faith thathis/her duty to thepatient would beviolated. This

(e) Safe Harbor Protections

(1) To activate protections outlined inNursing Peer Review (TOC)§303.005(c) as set out in Subsection(2), the nurse shall:

(A) invoke Safe Harbor in good faith.

(B) At the time the nurse is requested toengage in the conduct orassignment, notify the supervisor inwriting that he/she that the nurseintends to invoke Safe Harbor inaccordance with subsection (d) ofthis section. This must be done priorto engaging in the conduct orassignment for which safe harbor isrequested and at one of the followingtimes:

i) when the conduct is requested orassignment made;

ii) when changes in the clinicalsituation or the nurse’s assessmentof the assignment so modify the levelof nursing care required or thespecified functions, duties, or amountof work originally assigned that anew assignment occurs as definedby Subsec. (a)(__); or

Staff Response: Staff agree with languagechanges and concepts in column #3 withthe following clarification languagerecommendations:

This must be done prior to engaging in theconduct or assignment for which safeharbor is requested and at one any of thefollowing times:

ii) when changes in the clinicalsituation may occur or the nurse’sassessment of the in the requestor assignment that so modify thelevel of nursing care orsupervision required compared towhat was originally requested orassigned that or a nurse believesin good faith that patient harmmay result.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

20

29

(e)Safe

HarborProtec-tions

[see this column, table section 29above]

iii) when the nurse refuses to engagein the requested conduct orassignment.

before accepting or refusing theassignment. This includes changesin initial practice situation,assignments, or patient acuitiesthat adversely impact the conductor assignment requested of thenurse such that a nurse believesin good faith that his/her duty tothe patient would be violated.This change may occur at anytime.

Staff Response: Staff agree withsuggested changes in column #3.

30

(e)Safe

HarborProtec-tions

(2) A nurse may not besuspended, terminated, orotherwise disciplined ordiscriminated against foradvising a nurse in goodfaith of the nurse’s right torequest a determination, orof the procedures forrequesting a determination.A violation of this subsectionor Nursing Peer Review(TOC) §303.005(h) issubject to NPA (TOC)§301.413.

(2) Subsections 303.005(c) and (h) ofthe Nursing Peer Review Law (TOCCh. 303), provide the followingprotections:

(A) A nurse may not besuspended, terminated, orotherwise disciplined ordiscriminated against forrequesting Safe Harbor ingood faith;

Staff Response: See recommendedchanges in definitions for good and badfaith; staff agree with suggested changes.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

21

31

(e)Safe

HarborProtec-tions

(B) A nurse or other person may notbe suspended, terminated, orotherwise disciplined ordiscriminated against foradvising a nurse in good faith ofthe nurse’s right to request adetermination, or of theprocedures for requesting adetermination. A violation of thissubsection or Nursing PeerReview (TOC) §303.005(h) issubject to NPA (TOC)§301.413.

Staff Response: Staff agree with suggesteddeletion in column #3.

32

(e)Safe

HarborProtec-tions

(3) A nurse’s protections fromlicensure action by the boardfor a good faith safe harborrequest remain in place until 48hours after the nurse is advisedof the peer review committee’sdetermination. This timelimitation does not apply to thenurse’s protections fromretaliation under TOC§303.005(h). Safe Harborprotections also do not apply toany civil action that may resultfrom the nurse’s practice.

(3)(C) A nurse is not subject to being reportedto the board and may not be disciplinedby the board for engaging in the conductawaiting the determination of the peerreview committee as permitted bySubsection (g). A nurse's protectionsfrom disciplinary action by the board forengaging in the conduct or assignmentawaiting peer review determinationremain in place for 48 hours after thenurse is advised of the peer reviewcommittee's determination. This timelimitation does not affect to the nurse'sprotections from retaliation by the facility,agency, entity or employer under§303.005(h) of the NPR Law (TOC ch.303) for requesting Safe Harbor.

(3) Section 301.413 of the NPA provides anurse or individual retaliated against inviolation of §303.005(h) of the NPR Law(TOC ch. 303) a right to file suit torecover damages. The nurse orindividual also may file a complaint withan appropriate licensing agency.

Staff Response: Staff agree with languagechanges as suggested in column 3 re: (2)(C).

Staff Response re:(e) (3): The BON does notregulate “individuals” so regardless of broaderapplication of statutes, BON rule needs toaddress “nurses.” Also, needs furtherclarification re: employment vs. licensure issuesvs. facility regulation. Staff recommend thefollowing language:

(3) Section 301.413 of the NPA provides anurse or individual retaliated against inviolation of §303.005(h) of the NPRLaw (TOC ch. 303) a the right to filecivil suit to recover damages. Thenurse or individual also may also file acomplaint with an the appropriatelicensing regulatory agency thatlicenses or regulates the nurse’spractice setting. The BON does nothave regulatory authority overpractice settings or civil liability.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

22

33

(e)Safe

HarborProtec-tions

(4) Safe Harbor protections also do notapply to any civil action that mayresult from the nurse’s practice.

Staff Response: Staff agree with languagechanges as suggested in column 3.

34

(f)Exclu-sions

to SafeHarborProtec-tions

(f) Exclusions to Safe HarborProtections

(1) The protectionsprovided undersubsection (e) donot apply to thenurse who invokesSafe Harbor in badfaith, or engages inactivity unrelated tothe reason for therequest for SafeHarbor or thatconstitutesreportable conductof a nurse.

(f) Exclusions to Safe HarborProtections

(1) The protections providedfrom discipline ordiscrimination by a facility,agency, entity, or employer under subsection (e)(2) donot apply to the nurse whodoes not invokes SafeHarbor in bad good faith,

Staff Response: Staff agree with conceptsand make the following clarifyingamendments (stating in the positive (actiontaken)versus the negative (action failed totake; definitions amended in re-proposedrule language.). See next section of table.

(1) The protections provided fromdiscipline or discrimination by afacility, agency, entity, or employer under subsection (e)(2) do notapply to the nurse who does notinvokes Safe Harbor in bad goodfaith,

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

23

35

(f)Exclu-sions

to SafeHarborProtec-tions

(2) In addition to considerationof the nurse’s request forSafe Harbor, the safe harborpeer review committee mayconsider whether anexclusion to Safe Harborpeer review applies, andevaluate whether a nursehas engaged in reportableconduct provided suchreview is conducted inaccordance with therequirements of rule 217.19(incident-based peerreview).

(2) The protections provided fromdisciplinary action by the board undersubsection (e)(3) do not apply to thenurse who does not invoke SafeHarbor in good faith, to conductengaged in prior to the request forSafe Harbor, or to conduct unrelatedto the reason for the request for SafeHarbor. or engages in activity unrelated tothe reason for the request for SafeHarbor or that constitutes reportableconduct of a nurse.

(2) (A) In addition to considerationof the nurse’s request forSafe Harbor, the safe harborpeer review committee mayconsider whether anexclusion to Safe Harborpeer review applies, andevaluate whether a nursehas engaged in reportableconduct not related to therequest for Safe Harborprovided such review isconducted in accordancewith the requirements of rule§ 217.19 (Incident-BasedPeer Review) of this title.

Staff Response: (e)(3) as revised relates toa nurse’s protections from employerretaliation and ability to file suit under§301.413----not to board sanction of thenurse’s license.

(2)(1) The protections provided A nurse’sprotections from disciplinary actionby the board under subsection(e)(2) (3) do not apply to: does notinvoke Safe Harbor in good faith, (A) the nurse who invokes SafeHarbor in bad faith;(B) conduct the nurse engages inprior to the request for Safe Harbor;or (C) conduct unrelated to the reasonfor which the nurse requested forSafe Harbor.

(A)(2) In addition to consideration of thenurse’s request for Safe Harbor, the safeharbor peer review committee may considerwhether If the peer review committeedetermines that a nurse has engaged inreportable conduct subject to reportingthat is not related to the request for SafeHarbor, the committee must comply withthe requirements of § 217.19 Incident-Base Peer Review of this title. providedsuch review is conducted in accordancewith the requirements of §217.19 (Incident-Based Peer Review) of this title.

TableSection

Proposed Rule Language Recommended Changes{see comment documents}

BON Response to Comments{see Attachments C-1 & C-2}

24

36

(f)Exclu-sions to

SafeHarborProtec-

tions

(3) If the safe harbor peerreview committeedetermines that a nurse’sconduct was not related tothe nurse’s request for SafeHarbor and would otherwisebe reportable to the Board,the committee shall reportthe nurse to the Board asrequired in NPA (TOC) §301.403.

(3) (B) If the safe harbor peer reviewcommittee determines that a nurse’sconduct was not related to thenurse’s request for Safe Harbor andwould otherwise be reportable to theBoard, the committee shall report thenurse to the Board as required inNPA (TOC) §301.403.

Staff Response: With new #2 language,this section unnecessary since committeewould either operate under IBPR (217.19)or a different peer review committee woulddo the same, and § 217.19 provides thisdirective.

(3) (B) If the safe harbor peer reviewcommittee determines that a nurse’sconduct was not related to the nurse’srequest for Safe Harbor and wouldotherwise be reportable to the Board,the committee shall report the nurse tothe Board as required in NPA (TOC) §301.403.

37

(g)Engag-ing in

ConductPrior to

PeerReview

(g) Nurse’s Decision to Accept orRefuse Assignment When InvokingSafe Harbor and While AwaitingDetermination of Safe Harbor PeerReview Committee

A nurse invoking safe harbor mayengage in the requested conduct orassignment while awaiting peerreview determination unless theconduct or assignment is one inwhich:

(g) Nurse's Decision Whether toEngage in Conduct or Assignment WhileAwaiting Determination of Safe HarborNursing Peer Review Committee.

(1) A nurse invoking safe harbor may engagein the requested conduct or assignment whileawaiting peer review determination unlessthe conduct or assignment is one in which:

Staff Response: For section (g) BON staffrecommended language in 3rd and 4th

columns in green and underlined.}

Staff appreciate that nurses do not routinelyknow that they have a statutory basis{§301.352(a)} for refusing certainassignments, but that this also doesn’tmean it’s OK to just go home. Need to haveclear section heading so nurses and otherscan find the information in the rule.

(g) Nurse’s Right To Refuse To EngageIn Certain Conduct Pending Nursing SafeHarbor Peer Review Determination

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

25

38

(g)Engag-ing in

Conduct Priorto PeerReview

(1) the nurse lacks the basicknowledge, skills, and abilities thatwould be necessary to render thecare or engage in the conductrequested or assigned at a minimallycompetent level ; or

(A) the nurse lacks the basicknowledge, skills, and abilities that would benecessary to render the care or engage in theconduct requested or assigned at a minimallycompetent level so patients are not exposedto an unjustifiable risk of harm; or

Staff Response: For section (g) BON staffrecommended language in 3rd and 4th

column in green and underlined.}

...minimally competent level so such thatengaging in the requested conduct orassignment would patients are notexposed one or more patients to anunjustifiable risk of harm; or

39

(g)Engag-ing in

ConductPrior to

PeerReview

(2) the requested conduct orassignment would constituteunprofessional conduct and/orcriminal conduct.

(B) the requested conduct orassignment would constitute unprofessionalconduct and/or criminal conduct or a seriousviolation of Unprofessional Conduct Rule217.12 involving intentional or unethicalconduct such as fraud, theft, falsification,patient abuse or exploitation.

Staff Response: 1) “serious violation” maybe too restrictive within context of safeharbor. Unprofessional and criminal conductare described in NPA and other rules, notjust 217.12. 2) Language doesn’t addressGAC/TNA example of “falsification” which isprobably better example for safe harbor (3)As revised, language would be tooduplicative.

Staff Rec: leave examples; addfalsification.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

26

40

(g)Engag-ing in

ConductPrior to

PeerReview

(2) The Safe Harbor protections provided anurse under §303.005(c) of the NPR Law(TOC ch. 303) are affected by whether thenurse engages in the conduct or assignmentawaiting the peer review determination:

(A) If a nurse engages in theconduct or assignment, the protections applyif the nurse is acting on a good faith beliefthat engaging in the conduct or assignmentawaiting peer review determination ispermitted by Subdivision (1) even if the beliefis determined later to be incorrect

Staff Response: Conflicts with rule217.11(1) (B) and (T). Nurses are expectedto know under (1) that conduct is beyondscope and/or would constitute illegal orunprofessional conduct. Also feel thislanguage would make some nurses thinkthey must accept the assignment always orface being in trouble. BON has notsanctioned a nurse who invoked safe harborand engaged in conduct the nurse couldreasonably believe was in his/her scope.

Too difficult to enforce if add language;nurse may engage because wantschallenge even though not competent incare–and then claims safe harbor but keepscaring for pt w/adverse outcome (bad faith).

41

(g)Engag-ing in

Conduct Priorto PeerReview

(B) If a nurse does not engage in the conductor assignment, the nurse may not have all theprotections provided by §303.005(c) of theNPR Law (TOC ch. 303).

Staff Response: Unclear; Alt. language:(2) if a nurse refuses to engage in the

conduct or assignment because it isbeyond the nurse’s scope asdescribed under (1)(A) of thisparagraph:

(A) the nurse and supervisormust collaborate in anattempt to identify anacceptable assignment thatis within the nurse’s scopeand enhances the deliveryof safe patient care; and

(B) The results of thiscollaborative effort mustbe documented in writingand maintained in peerreview records by thechair of the peer reviewcommittee.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

27

42

(g)Engag-ing in

ConductPrior to

PeerReview

(i) The protection provided by§303.005(c)(4) that a nurse may not bedisciplined by the Board for engaging in therequested conduct or assignment awaitingnursing peer review is not applicable if thenurse refuses to engage in the conduct orassignment

Staff Response: Conflicts with TOC301.352 that allows nurse to refuseassignment that would violate NPA or Boardrules.

Staff Rec: Do not add suggested language.If evidence that nurse invoked in bad faith,rule language already has this covered.

43

(g)Engag-ing in

Conduct Priorto PeerReview

(ii) If a nurse refuses to engage in therequested conduct or assignmentpending the safe harbor peer review,the determination of the safe harborpeer review committee shall beconsidered in any decision by thenurse’s employer to discipline thenurse for the refusal to engage in therequested conduct. Thedeterminations of the Safe HarborPeer Review Committee are notbinding if the CNO or nurseadministrator believes in good faiththat the Safe Harbor Peer ReviewCommittee incorrectly determined anurse’s duty. The CNO’s or nurseadministrator’s decision that the peerreview committee’s determinationsare not binding does not affectprotections provided the nurse by§303.005(c)(1) of the Nursing PeerRevew Law (TOC ch. 303)(relating toprotections for refusing to engage inconduct that violates the NPA or aBoard rule).

Suggested repetition of language found insection (d)(4)(C).

Staff Response: As preceding (2)(A), (B),and (B)(i) deleted, staff do not feel repetitionof language from (d)(4)(C) in section (g) ishelpful. However, see clarification languageadded above to emphasize the intent ofaccepting the assignment unless exclusioncriteria are met. Also added is provision thatintent is for nurse and supervisor tocollaborate in good faith effort to do what isbest for the patient(s), and to document thiseffort.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

28

44

(g)Engag-ing in

Conduct Priorto PeerReview

(3) If the nurse does not engage in therequested conduct or assignmentawaiting the nursing peer reviewcommittee’s determination, the nursemust document his/her rationale aspart of the process of invoking SafeHarbor described in Subsection (d). The rationale should refer to one ofthe justifications described inSubdivision (2).

Staff Response: Documenting rationaleminimum requirement when invoke SafeHarbor; New #2 requires collaborationbetween supervisor and nurse whenassignment beyond nurses scope, so alsoassures rationale will be documented.

(3) If the nurse does not engage in therequested conduct or assignmentawaiting the nursing peer reviewcommittee’s determination, the nursemust document his/her rationale as partof the process of invoking Safe Harbordescribed in Subsection (d). Therationale should refer to one of thejustifications described in Subdivision(2). (g)(1)(A) or (B) of thissubsection.

45

(h) Mini-mumDue

Process

(h) Minimum Due Process (1) A person or entity required

to comply with Nursing PeerReview (TOC) §303.005(i)shall adopt and implement apolicy to inform nurses oftheir right to request anursing peer reviewcommittee determination(Safe Harbor Peer Review)and the procedure formaking a request.

(h) Minimum Due Process

(1) A person or entity required tocomply with by Nursing PeerReview (TOC) §303.005(i) ofNPR Law (TOC ch. 303) toprovide nursing peer reviewshall adopt and implement apolicy to inform nurses oftheir right to request anursing peer reviewcommittee determination(Safe Harbor Nursing PeerReview) and the procedurefor making a request.

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

29

46

(h) Mini-mumDue

Process

(2) In order to meet theminimum due processrequired by Nursing PeerReview (TOC) chapter 303,the nursing peer reviewcommittee shall comply withthe membership and votingrequirements as set forth inTOC §303.003(a)-(d);

(3) The peer review committeeshall exclude from thecommittee membership, anypersons or person withadministrative authority forpersonnel decisions directlyaffecting the nurse.

(2) In order to meet the minimum dueprocess required by Nursing PeerReview NPR Law (TOC) chapter303, the nursing peer reviewcommittee shall

(A) comply with the membershipand voting requirements asset forth in TOC§303.003(a)-(d);

(3)(B) The peer review committeeshall exclude from thecommittee membership, anypersons or person withadministrative authority forpersonnel decisions directlyaffecting the nurse;

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

30

47

(h) Mini-mumDue

Process

(4) Attendance at the safeharbor peer review hearingby a CNO (administrator) orother persons withadministrative authority overthe nurse, including theindividual who requested theconduct or made theassignment, is limited toappearing before the safeharbor peer reviewcommittee to speak as a factwitness.

(5) The nurse requesting safeharbor shall be permitted to:

(A) appear before thecommittee;

(B) ask questions andrespond toquestions of thecommittee; and

(C) make a verbaland/or writtenstatement to explainwhy he or shebelieves therequested conductor assignment wouldhave violated anurse’s duty to apatient.

(4)(C) Limit attendance at the safe harborpeer review hearing by a CNO, nurse administrator, or other personsindividual with administrativeauthority over the nurse, includingthe individual who requested theconduct or made the assignment, islimited to appearing before the safeharbor peer review committee tospeak as a fact witness, and

(5)(D) Permit the nurse requesting safeharbor shall be permitted to:

(A)(i) appear before thecommittee;

(B) (ii) ask questions and respondto questions of thecommittee; and

(C)(iii) make a verbal and/or writtenstatement to explain why heor she believes therequested conduct orassignment would haveviolated a nurse’s duty to apatient.

Staff Response: Staff agree with languagechanges as suggested in column 3 with thefollowing additional changes (forconsistency with remainder of rule):

(C) Limit attendance at the Safe HarborNursing Peer Review hearing by a...

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

31

48

(i)Safe

HarborTime-lines

(i) Safe Harbor Processes

(1) The following timelines shall befollowed:

(A) the safe harbor peerreview committee shallcomplete its reviewand notify the CNO(nurse administrator)within 14 calendardays of when thenurse requested SafeHarbor;

(B) within 48 hours ofreceiving thecommittee’sdetermination, theCNO (nurseadministrator) shallreview these findingsand notify the nurserequesting safe harborpeer review of both thecommittee’sdetermination andwhether theadministrator believesin good faith that thecommittee’s findingsare correct orincorrect.

(i) Safe Harbor Processes Timelines

(1) The following timelines shallbe followed:

(A)(1) The safe harbor peer reviewcommittee shall complete itsreview and notify the CNO ornurse administrator within 14calendar days of when thenurse requested SafeHarbor.

(B)(2) Within 48 hours of receivingthe committee’sdetermination, the CNO ornurse administrator shallreview these findings andnotify the nurse requestingsafe harbor peer review ofboth the committee’sdetermination and whetherthe administrator believes ingood faith that thecommittee’s findings arecorrect or incorrect.

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

32

49

(i)Safe

HarborTime-lines

(3) The nurse’s protection fromdisciplinary action by the board forengaging in the conduct orassignment awaiting peer reviewdetermination expires 48 hours afterthe nurse is advised of the peerreview committee's determination.The expiration of this protection doesnot affect the nurse's protectionsfrom retaliation by the facility,agency, entity or employer under§303.005(h) of the NPR Law (TOCch. 303) for requesting Safe Harbor.

Repeats language from (e)(2)(C). Assures alltimelines are in one section of the rule.

Staff Response: Staff agree with languagechanges as suggested in column 3.Duplication in this section on purpose toemphasize and to make rule more in “plainspeak” terms.

50

(j)GeneralProvi-sions

(2) The Chief Nursing Officer(CNO) of a facility,association, school, agency,or of any other setting thatutilizes the services ofnurses is responsible forknowing the requirements ofthis Rule and for takingreasonable steps to assurethat peer review isimplemented and conductedin compliance with theNursing Practice Act (TOCch.301) and Nursing PeerReview (TOC ch 303).

(j) General Provisions

(2)(1) The Chief Nursing Officer(CNO) of a facility,association, school, agency,or of any other setting thatutilizes the services ofnurses is responsible forknowing the requirements ofthis Rule and for takingreasonable steps to assurethat peer review isimplemented and conductedin compliance with theNursing Practice Act (TOCch.301) and Nursing PeerReview Law (TOC ch 303).

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

33

51

(j)GeneralProvi-sions

(3) Texas Occupations Codechapter 303 (Nursing PeerReview), requires that peerreview be conducted in goodfaith. A nurse who knowinglyparticipates in peer review inbad faith is subject todisciplinary action by theBoard under the TexasOccupations Code§301.452(b)

(3)(2) Texas Occupations Code chapter303 (Nursing Peer Review), requiresthat Nursing Peer Review must beconducted in good faith. A nurse whoknowingly participates in nursingpeer review in bad faith is subject todisciplinary action by the Boardunder the Texas Occupations Code§301.452(b).

Staff Response: Staff agree with languagechanges as suggested in column 3.

52

(j)GeneralProvi-sions

(4) The peer reviewcommittee andparticipants shallcomply with theconfidentialityrequirement ofNursing PeerReview (TOC)§§303.006 and303.007 relating toconfidentiality andlimited disclosure ofpeer reviewinformation.

(4)(3) The peer review committeeand participants shall comply with theconfidentiality requirement of Nursing PeerReview Law(TOC) § § 303.006 and 303.007relating to confidentiality and limiteddisclosure of peer review information.

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

34

53

(j)GeneralProvi-sions

(5) If the CNO (nurseadministrator) in good faithdisagrees with the decision ofthe peer review committee, therationale for disagreeing with apeer review committee’sdetermination must be recordedand retained with the peerreview records.

(A) If the CNO (nurseadministrator) believesthe peer review wasconducted in bad faith,she/he has a duty toreport the nursesinvolved under NPA(TOC) §301.402 andrule 217.11(1)(K).

(5)(4) If the CNO or (nurse administrator) ingood faith disagrees with the decisionof the peer review committee, therationale for disagreeing with a peerreview committee’s determinationmust be recorded and retained withthe peer review records.

(A) If the CNO or (nurseadministrator) believes thepeer review was conductedin bad faith, she/he has aduty to report the nursesinvolved under NPA (TOC)§301.402 and rule217.11(1)(K).

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

35

54

(j)GeneralProvi-sions

(4)(B) If a nurse requests a safeharbor peer reviewdetermination under NursingPeer Review (TOC)§303.005(b), and refuses toengage in the requestedconduct or assignmentpending the safe harbor peerreview, the determination ofthe safe harbor peer reviewcommittee shall beconsidered in any decision bythe nurse’s employer todiscipline the nurse for therefusal to engage in therequested conduct, Thedeterminations of the safeharbor peer review committeeare not binding if the CNO(nurse administrator) believesin good faith that the safeharbor peer review committeeincorrectly determined anurse’s duty; however, thisdoes not affect protectionsprovided for the nurse underNursing Peer Review (TOC)§303.005(c) or NPA (TOC)§301.352

(4)(B) If a nurse requests a Safe Harbor PeerReview determination under NursingPeer Review Law (TOC) §303.005(b),and refuses to engage in therequested conduct or assignmentpending the safe harbor peer review,the determination of the safe harborpeer review committee shall beconsidered in any decision by thenurse’s employer to discipline thenurse for the refusal to engage in therequested conduct, Thedeterminations of the safe harbor peerreview committee are not binding if theCNO or (nurse administrator) believesin good faith that the safe harbor peerreview committee incorrectlydetermined a nurse’s duty. ; however,this The CNO’s or nurseadministrator’s decision that the peerreview committee’s determination asto the nurse’s duty to the patient is notbinding does not affect the protectionsprovided for the nurse under byNursing Peer Review Law (TOC)§303.005(c)(1) or NPA (TOC)§301.352 and does not invalidate thecommittee’s determination as to thenurse’s duty to the patient

Staff Response: Staff agree with languagechanges as suggested in column 3, exceptfor added language at end of subsection.Do not believe language helpsunderstanding in rule language; willconsider this input for use with FAQs onpeer review if it is helpful to nurses ininterpreting this section of the rule.

The CNO’s or nurse administrator’s decisionthat the peer review committee’sdetermination as to the nurse’s duty to thepatient is not binding does not affect theprotections provided for the nurse under byNursing Peer Review Law (TOC)§303.005(c)(1) or NPA (TOC) §301.352 anddoes not invalidate the committee’sdetermination as to the nurse’s duty to thepatient

55

(k)Use of

InformalWorkGroup

(j) Use of Informal WorkGroup In Safe Harbor PeerReview

(j)(k) Use of Informal Work Group InSafe Harbor Nursing Peer Review

Staff Response: Comments made minorchanges to this section as noted in partialsections copied in table. The implied (1) in theintroductory paragraph was ignored thus subsections were designated with numbers vs.letters. BON legal counsel believes the originalformatting is correct and will leave as submitted.

TableSection

Proposed Rule Language GAC Recommended Changes BON Response to Comments

36

57

(k)Use of

InformalWorkGroup

(D) the nurse has the right toreject any decision of theinformal workgroup and havethe safe harbor peer reviewcommittee determine if therequested conduct orassignment violates thenurse’s duty to the patient(s),in which event members ofthe informal workgroup shallnot participate in thatdetermination;

(D)(4) the nurse has to have the right toreject any decision of the informalworkgroup and have the entire safeharbor peer review committeedetermine if the requested conduct orassignment violates the nurse’s dutyto the patient(s), in which eventmembers of the informal workgroupshall not participate in thatdetermination; and

Staff Response: Staff agree with languagechanges as suggested in column 3 w/oneeditorial correction.

56

(k)Use of

InformalWorkGroup

(E) ratification by the safe harborpeer review committee of anydecision made by the informalworkgroup. If the chair persondisagrees with adetermination of the informalworkgroup, the chair personshall convene the full peerreview committee to reviewthe conduct in question;

(E)(5) ratification by the safe harbor peerreview committee chair person of anydecision made by the informalworkgroup. If the chair persondisagrees with a determination of theinformal workgroup, the chair personshall convene the full peer reviewcommittee to review the conduct inquestion; and

Staff Response: Staff agree with languagechanges as suggested in column 3.

57

(k)Use of

InformalWorkGroup

(F) the peer review chair personmust communicate anydecision of the informal workgroup to the CNO (nurseadministrator).

(F) the peer review chair person mustcommunicate any decision of theinformal work group to the CNO ornurse administrator.

Staff Response: Staff agree with languagechanges as suggested in column 3.

TableSection

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37

58

(l)

Whistle-blowerProtec-tions

(k) Reporting Conduct of otherPractitioners or Entities/Whistleblower Protections

(1) This section does not expandthe authority of any safeharbor peer review committeeor the board to makedeterminations outside thepractice of nursing.

(k)(l) Reporting Conduct of otherPractitioners or Entities; WhistleblowerProtections

(1) This subsection does notexpand the authority of anysafe harbor peer reviewcommittee or the board tomake determinations outsidethe practice of nursing.

Staff Response: Staff agree with languagechanges as suggested in column 3.

59

Whistle-blowerProtec-tions

(4) A person may not suspend orterminate the employment of,or otherwise discipline ordiscriminate against, a personwho reports, without malice,under this section. A violationof this subsection is subject toNPA (TOC) §301.413.

(4) A person may not suspendor terminate the employmentof, or otherwise discipline ordiscriminate against, aperson who reports, withoutmalice, under this section. Aviolation of this subsection issubject to NPA (TOC)§301.413 that provides anurse or individual retaliatedagainst a right to file suit torecover damages. Thenurse or individual also mayfile a complaint with anappropriate licensingagency.

Staff Response: Same as (e)(3). The BONdoes not regulate “individuals” so regardlessof broader application of statutes, BON ruleneeds to address “nurses.”

A violation of this subsection is subject toNPA (TOC) §301.413 that provides a nurseor individual retaliated against a the right tofile civil suit to recover damages. Thenurse or individual also may also file acomplaint with the appropriate licensingregulatory agency that licenses orregulates the nurse’s practice setting.The BON does not have regulatoryauthority over practice settings or civilliability.