22 Tex. Admin. Code § 217.19 - Incident-Based Nursing Peer Review and Whistleblower Protections
(a) Definitions.
(1) Assignment--Designated responsibility for
the provision or supervision of nursing care for a defined period of time in a
defined work setting. This includes but is not limited to the specified
functions, duties, practitioner orders, supervisory directives, and amount of
work designated as the individual nurse's responsibility. Changes in the
nurse's assignment may occur at any time during the work period.
(2) Bad Faith--Knowingly or recklessly taking
action not supported by a reasonable factual or legal basis. The term includes
misrepresenting the facts surrounding the events under review, acting out of
malice or personal animosity towards the nurse, acting from a conflict of
interest, or knowingly or recklessly denying a nurse due process.
(3) Chief Nursing Officer (CNO)--The
registered nurse, by any title, who is administratively responsible for the
nursing services at a facility, association, school, agency, or any other
setting that utilizes the services of nurses.
(4) Conduct Subject to Reporting defined by
Texas Occupations Code (TOC) §301.401 of the Nursing Practice Act as
conduct by a nurse that:
(A) violates the
Nursing Practice Act (NPA) or a Board rule and contributed to the death or
serious injury of a patient;
(B)
causes a person to suspect that the nurse's practice is impaired by chemical
dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud,
or a violation of professional boundaries; or
(D) indicates that the nurse lacks knowledge,
skill, judgment, or conscientiousness to such an extent that the nurse's
continued practice of nursing could reasonably be expected to pose a risk of
harm to a patient or another person, regardless of whether the conduct consists
of a single incident or a pattern of behavior.
(5) Duty to a patient--A nurse's duty is to
always advocate for patient safety, including any nursing action necessary to
comply with the standards of nursing practice (§
217.11 of this title) and to avoid
engaging in unprofessional conduct (§
217.12 of this title). This
includes administrative decisions directly affecting a nurse's ability to
comply with that duty.
(6) Good
Faith--Taking action supported by a reasonable factual or legal basis. Good
faith precludes misrepresenting the facts surrounding the events under review,
acting out of malice or personal animosity, acting from a conflict of interest,
or knowingly or recklessly denying a nurse due process.
(7) Incident-Based Nursing Peer
Review--Incident-based nursing peer review focuses on determining if a nurse's
actions, be it a single event or multiple events (such as in reviewing up to
five (5) minor incidents by the same nurse within a year's period of time),
should be reported to the Board or if the nurse's conduct does not require
reporting because the conduct constitutes a minor incident that can be
remediated. The review includes whether external factors beyond the nurse's
control may have contributed to any deficiency in care by the nurse and to
report such findings to a patient safety committee as applicable.
(8) Malice--Acting with a specific intent to
do substantial injury or harm to another.
(9) Minor incident--Conduct by a nurse that
does not indicate that the nurse's continued practice poses a risk of harm to a
patient or another person as described in §
217.16 of this title.
(10) Nurse Administrator--Chief Nursing
Officer (CNO) or the CNO's designee.
(11) Nursing Peer Review Law (NPR
Law)--Chapter 303 of the TOC. Nurses involved in nursing peer review must
comply with the NPR Law.
(12)
Nursing Practice Act (NPA)--Chapter 301 of the TOC. Nurses must comply with the
NPA.
(13) Patient Safety
Committee--Any committee established by an association, school, agency, health
care facility, or other organization to address issues relating to patient
safety including:
(A) the entity's medical
staff composed of individuals licensed under Subtitle B (Medical Practice Act,
TOC §§151.001, et seq.);
(B) a medical committee under Chapter 161,
Subchapter D of the Health and Safety Code (§§161.031 - 161.033);
or
(C) a multi-disciplinary
committee, including nursing representation, or any committee established by
the same entity to promote best practices and patient safety.
(14) Peer Review--Defined by TOC
§303.001(5) (NPR Law) as the evaluation of nursing services, the
qualifications of a nurse, the quality of patient care rendered by a nurse, the
merits of a complaint concerning a nurse or nursing care, and a determination
or recommendation regarding a complaint. The term also includes the provision
of information, advice, and assistance to nurses and other persons relating to
the rights and obligations of and protections for nurses who raise care
concerns, report under Chapter 301, request nursing peer review, and the
resolution of workplace and practice questions relating to nursing and patient
care. The nursing peer review process is one of fact finding, analysis and
study of events by nurses in a climate of collegial problem solving focused on
obtaining all relevant information about an event. Nursing peer review
conducted by any entity must comply with NPR Law and with applicable Board
rules related to incident-based or safe harbor nursing peer review.
(15) Safe Harbor--A process that protects a
nurse from employer retaliation, suspension, termination, discipline,
discrimination, and licensure sanction when a nurse makes a good faith request
for nursing peer review of an assignment or conduct the nurse is requested to
perform and that the nurse believes could result in a violation of the NPA or
Board rules. Safe Harbor must be invoked prior to engaging in the conduct or
assignment for which nursing peer review is requested, and may be invoked at
anytime during the work period when the initial assignment changes.
(16) Texas Occupations Code (TOC)--One of the
topical subdivisions or "codes" into which the Texas Statutes or laws are
organized. The TOC contains the statutes governing occupations and professions
including the health professions. Both the NPA and NPR Law are located within
these statutes. The TOC can be changed only by the Texas Legislature.
(17) Whistleblower Protections--Protections
available to a nurse that prohibit retaliatory action by an employer or other
entity because the nurse:
(A) made a good
faith request for Safe Harbor Nursing Peer Review under TOC §303.005(c)
(NPR Law) and §
217.20 of this title;
(B) refused to engage in an act or omission
relating to patient care that would constitute a violation of the NPA or Board
rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage
in Certain Conduct). A nurse invoking Safe Harbor under §
217.20 of this title must comply
with §
217.20(g) of
this title if the nurse refuses to engage in the conduct or assignment;
or
(C) made a lawful report of
unsafe practitioners, or unsafe patient care practices or conditions, in
accordance with TOC §301.4025 (NPA) (report of unsafe practices of
non-nurse entities) and subsection (j)(2) of this section.
(b) Purpose. The purpose of this
rule is to:
(1) define minimum due process to
which a nurse is entitled under incident-based nursing peer review;
(2) provide guidance to facilities, agencies,
schools, or anyone who utilizes the services of nurses in the development and
application of incident-based nursing peer review plans;
(3) assure that nurses have knowledge of the
plan; and
(4) provide guidance to
the incident-based nursing peer review committee in its fact finding
process.
(c)
Applicability of Incident-Based Nursing Peer Review. TOC §303.0015 (NPR
Law) requires a person who regularly employs, hires or contracts for the
services of eight (8) or more nurses (for nursing peer review of an RN, at
least four (4) of the 8 must be RNs) to conduct nursing peer review for
purposes of TOC §301.401(1) and §301.402(e) (NPA) (relating to
alternate reporting by nurses to nursing peer review when a nurse engages in
conduct subject to reporting), §301.403 (relating to nursing peer review
committee reporting), §301.405(c) (relating to nursing peer review of
external factors as part of employer reporting), and §301.407(b) (relating
to alternate reporting by state agencies to nursing peer review).
(d) Minimum Due Process.
(1) A licensed nurse subject to
incident-based nursing peer review is entitled to minimum due process under TOC
§303.002(e) (NPR Law). Any person or entity that conducts incident-based
nursing peer review must comply with the due process requirements of this
section even if the person or entity does not utilize the number of nurses
described by subsection (c) of this section.
(2) A facility conducting incident-based
nursing peer review shall have written policies and procedures that, at a
minimum, address:
(A) the level of
participation of nurse or nurse's representative at an incident-based nursing
peer review hearing beyond that required by this subsection;
(B) confidentiality and safeguards to prevent
impermissible disclosures including written agreement by all parties to abide
by TOC §§303.006, 303.007, 303.0075 (NPR Law) and subsection (h) of
this section;
(C) handling of cases
involving nurses who are impaired or suspected of being impaired by chemical
dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use,"
mental illness, or diminished mental capacity in accordance with the TOC
§301.410, and subsection (g) of this section;
(D) reporting of nurses to the Board by
incident-based nursing peer review committee in accordance with the TOC
§301.403, and subsection (i) of this section; and
(E) effective date of changes to the policies
which in no event shall apply to incident-based nursing peer review proceedings
initiated before the change was adopted unless agreed to in writing by the
nurse being reviewed.
(3) In order to meet the minimum due process
required by TOC Chapter 303 (NPR Law), the nursing peer review committee must:
(A) comply with the membership and voting
requirements as set forth in TOC §303.003 (NPR Law);
(B) exclude from the committee, including
attendance at the nursing peer review hearing, any person or persons with
administrative authority for personnel decisions directly relating to the
nurse. This requirement does not exclude a person who is administratively
responsible over the nurse being reviewed from appearing before the committee
to speak as a fact witness;
(C)
provide written notice to the nurse in person or by certified mail at the last
known address the nurse has on file with the facility that:
(i) the nurse's practice is being
evaluated;
(ii) the incident-based
nursing peer review committee will meet on a specified date not sooner than 21
calendar days and not more than 45 calendar days from date of notice, unless:
(I) the incident-based nursing peer review
committee determines an extended time period (extending the 45 days by no more
than an additional 45 days) is necessary in order to consult with a patient
safety committee; or
(II) otherwise
agreed upon by the nurse and incident-based nursing peer review committee;
and
(iii) includes the
information required by subparagraph (D) of this paragraph.
(D) Include in the notice required
by subparagraph (C) of this paragraph:
(i) a
description of the event(s) to be evaluated in sufficient detail to inform the
nurse of the incident, circumstances and conduct (error or omission), including
date(s), time(s), location(s), and individual(s) involved. The patient/client
shall be identified by initials or number to the extent possible to protect
confidentiality but the nurse shall be provided the name of the
patient/client;
(ii) the name,
address, telephone number of contact person to receive the nurse's response;
and
(iii) a copy of this rule
(§
217.19 of this title) and a copy
of the facility's incident-based nursing peer review plan, policies and
procedures.
(E) provide
the nurse the opportunity to review, in person or by attorney, the documents
concerning the event under review, at least 15 calendar days prior to appearing
before the committee;
(F) provide
the nurse the opportunity to:
(i) submit a
written statement regarding the event under review;
(ii) call witnesses, question witnesses, and
be present when testimony or evidence is being presented;
(iii) be provided copies of the witness list
and written testimony or evidence at least 48 hours in advance of
proceeding;
(iv) make an opening
statement to the committee;
(v) ask
questions of the committee and respond to questions of the committee;
and
(vi) make a closing statement
to the committee after all evidence is presented;
(G) complete its review no more than fourteen
(14) calendar days after the incident-based nursing peer review hearing, or in
compliance with subparagraph (C)(ii) of this paragraph 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 nursing peer review record to be included whenever the
committee's findings are disclosed;
(4) An incident-based nursing peer review
committee's determination to report a nurse to the Board 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 paragraph. These rights are
minimum requirements and a facility may allow the nurse more representation.
The incident-based nursing 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 nursing peer review hearing must comply with the facility's
incident-based nursing 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 nursing 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 nursing
peer review committee is present at the incident-based nursing peer review
hearing in any capacity, including serving as a member of the incident-based
nursing 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.
(6) A nurse whose practice is being evaluated
may properly choose not to participate in the proceeding after the nurse has
been notified under paragraph (3)(C) of this subsection. If a nurse elects not
to participate in incident-based nursing peer review, the nurse waives any
right to procedural due process under TOC §303.002 (NPR Law) and this
subsection.
(e) Use of
Informal Workgroup In Incident Based Nursing Peer Review. A facility may choose
to initiate an informal review process utilizing a workgroup of the nursing
incident-based nursing peer review committee provided there are written
policies for the informal workgroup that require:
(1) the nurse be informed of how the informal
workgroup will function, and consent, in writing, to the use of an informal
workgroup. A nurse does not waive any right to incident-based nursing peer
review by accepting or rejecting the use of an informal workgroup;
(2) if the informal workgroup suspects that
the nurse's practice is impaired by chemical dependency or diminished mental
capacity, the chairperson must be notified to determine if nursing peer review
should be terminated and the nurse reported to the Board or to a Board-approved
peer assistance program as required by subsection (g) of this
section;
(3) the informal workgroup
comply with the membership and voting requirements of subsection (d)(3)(A) and
(B) of this section;
(4) the nurse
be provided the opportunity to meet with the informal workgroup;
(5) the nurse have the right to reject any
decision of the informal workgroup and to then have his/her conduct reviewed by
the nursing peer review committee, in which event members of the informal
workgroup shall not participate in that determination; and
(6) ratification by the committee chairperson
of any decision made by the informal workgroup. If the chairperson disagrees
with a determination of the informal workgroup, the chairperson shall convene
the full nursing peer review committee to make a determination regarding the
conduct in question; and
(7) the
chairperson communicate any decision of the informal workgroup to the CNO or
nurse administrator
(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) nursing peer review conducted solely in
compliance with TOC §301.405(c) (NPA) relating to review of external
factors, after a report of a nurse to the Board has already occurred under TOC
§301.405(b) (relating to mandatory report by employer, facility or
agency);
(2) reviews governed by
subsection (g) of this section involving nurses whose practice is suspected of
being impaired due to chemical dependency, drug or alcohol abuse, substance
abuse/misuse, "intemperate use," mental illness, or diminished mental capacity;
or
(3) when a person required to
report a nurse believes that a nurse's practice is impaired or suspected of
being impaired and has also resulted in a violation under TOC §301.410(b),
that requires a direct report to the Board.
(g) Incident-Based Nursing Peer Review of a
Nurse's Impaired Practice/Lack of Fitness.
(1) When a nurse's 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, nursing peer review of the nurse shall be suspended. The nurse shall
be reported to the Board or to a Board-approved peer assistance program in
accordance with TOC §301.410 (related to reporting of impairment):
(A) if there is no reasonable factual basis
for determining that a practice violation is involved, the nurse shall be
reported to:
(i) the Board; or
(ii) a Board-approved peer assistance
program, that shall handle reporting the nurse in accordance with §
217.13 of this title; or
(B) if there is a reasonable
factual basis for a determination that a practice violation is involved, the
nurse shall be reported to the Board.
(2) Following suspension of nursing peer
review of the nurse, the committee shall proceed to evaluate external factors
to determine if:
(A) any factors beyond the
nurse's control contributed to a practice violation; and
(B) any deficiency in external factors
enabled the nurse to engage in unprofessional or illegal conduct.
(3) If the committee determines
under paragraph (2) of this subsection that external factors do exist for
either paragraph (2)(A) or (B) of this subsection, the committee shall report
its findings to a patient safety committee or to the CNO or nurse administrator
if there is no patient safety committee.
(4) A facility, organization, contractor, or
other entity does not violate a nurse's right to due process under subsection
(d) of this section by suspending the committee's review of the nurse and
reporting the nurse to the Board or a Board-approved peer assistance program in
accordance with paragraph (1) of this subsection.
(5) Paragraph (1) of this subsection does not
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 nursing peer review committee shall
be maintained and the information not disclosed except as provided by TOC
§§303.006, 303.007, and 303.0075 (NPR Law). 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) In accordance with TOC §303.0075, a
nursing incident-based nursing peer review committee, including an entity
contracted to conduct nursing peer review under TOC §303.0015(b), and any
patient safety committee established by the same entity, may share information.
(A) 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.
(B) 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.
(C) This section does not affect the
application of TOC §303.007 (NPR Law) (relating to disclosures by nursing
peer review committee) to a nursing peer review committee.
(D) 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 or Nurse Administrator shall assure
that policies are in place relating to sharing of information and documents
between an incident-based nursing peer review committee and a patient safety
committee(s) that at a minimum, address:
(A)
separation of confidential incident-based nursing peer review information from
the nurse's human resource file;
(B) methods in which shared communications
and documents are labeled and maintained as to which committee originated the
documents or communications;
(C)
the confidential and separate nature of incident-based nursing peer review and
patient safety committee proceedings including shared information and
documents; and
(D) the treatment of
nurses who violate the policies including when a violation may result in a
nurse being reported to the Board or a nursing peer review committee.
(i) Committee
Responsibility to Evaluate and Report.
(1) In
evaluating a nurse's conduct, the incident-based nursing 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.
(A) For errors involving the death or serious
injury of a patient, if a nursing peer review committee makes a determination
that a nurse has not engaged in conduct subject to reporting to the Board, the
committee must maintain documentation of the rationale for its belief that the
nurse's conduct failed to meet each of the factors in the definition of
"conduct subject to reporting", as defined in TOC §301.401(1)(A) - (D) and
subsection (a)(4)(A) - (D) of this section.
(B) Conduct subject to reporting means
conduct by a nurse that:
(i) violates the NPA
or a Board rule and contributed to the death or serious injury of a
patient;
(ii) causes a person to
suspect that the nurse's practice is impaired by chemical dependency or drug or
alcohol abuse;
(iii) constitutes
abuse, exploitation, fraud, or a violation of professional boundaries;
or
(iv) 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.
(2) An incident-based
nursing peer review committee shall consider whether a nurse's conduct
constitutes one or more minor incidents under §
217.16 of this title. A nursing
peer review committee receiving a report involving a minor incident or
incidents must review the incident(s) and other conduct of the nurse during the
previous 12 months to determine if the nurse's continued practice poses a risk
of harm to patients or other persons and whether remediation would be
reasonably expected to adequately mitigate such risk, if it exists. The
committee must consider the factors set out in §
217.16(d) of
this title. In accordance with §217.16, 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 incident-based nursing peer
review committee determines cannot be categorized as a minor incident(s);
or
(C) if a nurse terminates
employment while undergoing remediation activities as directed by a nursing
peer review committee under paragraph (2)(A) of this subsection, the nursing
peer review committee may:
(I) report the
nurse to the Board;
(II) report to
the nursing peer review committee of the new employer, if known, with the
nurse's written consent; or
(III)
re-evaluate the nurse's current conduct to determine if the nurse did complete
sufficient remediation and is deemed safe to practice.
(3) An incident-based nursing 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 of this title; or
(B) the nurse has already been reported to
the Board under TOC §301.405(b) (NPA) (employer reporting
requirements).
(4)
Unless the exceptions outlined in paragraph (3)(A) and (B) of this subsection
are met, an incident-based nursing peer review committee shall report a nurse
to the Board if it is determined that the nurse has engaged in conduct subject
to reporting.
(5) If the committee
determines it is required to report a nurse to the Board, the committee shall
submit to the Board a written, signed report that includes:
(A) the identity of the nurse;
(B) 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.
(6) If an
incident-based nursing 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) (NPR Law) (related to required nursing
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 or nurse administrator if there is no
patient safety committee. A patient safety committee must report its findings
back to the incident-based nursing peer review committee.
(7) An incident-based nursing peer review
committee is not required to withhold its determination of the nurse being
incident-based nursing peer reviewed, pending feedback from a patient safety
committee, unless the committee believes that a determination from a patient
safety committee is necessary in order for the incident-based nursing peer
review committee to determine if the nurse's conduct is reportable.
(A) If an incident-based nursing peer review
committee finds that factors outside the nurse's control contributed to a
deficiency in care, in addition to reporting to a patient safety committee, the
incident-based nursing peer review committee may also make recommendations for
the nurse, up to and including reporting to the Board.
(B) An incident-based nursing peer review
committee may extend the time line for completing the incident-based nursing
peer 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 nursing peer review committee must complete its
review of the nurse within this 90-day time frame.
(8) An incident-based nursing 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 nursing peer review committee will satisfy the nurse's duty to
report to the Board under TOC §301.402 (mandatory report by a nurse)
provided that the following conditions are met:
(A) The reporting nurse shall be notified of
the incident-based nursing peer review committee's actions or findings and
shall be subject to TOC §303.006 (confidentiality of nursing peer review
proceedings); and
(B) The nurse has
no reason to believe the incident-based nursing peer review committee made its
determination in bad faith.
(2) A nurse may not be suspended, terminated,
or otherwise disciplined, retaliated, or discriminated against for filing a
report in good faith under this section and TOC §301.402(f) (retaliation
for a report made in good faith prohibited) or advising a nurse of the nurse's
rights and obligations under this section and §301.402(f). A violation of
this subsection or TOC §301.402(f) is subject to TOC §301.413 that
provides a nurse the right to file a civil suit to recover damages. The nurse
may also file a complaint with the regulatory agency that licenses or regulates
the nurse's practice setting. The BON does not have regulatory authority over
practice settings or civil liability.
(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 Nursing Peer
Review Process.
(1) Incident-based nursing
peer review must be conducted in good faith. A nurse who knowingly participates
in incident-based nursing peer review in bad faith is subject to disciplinary
action by the Board.
(2) The CNO or
nurse administrator of a facility, association, school, agency, or of any other
setting that utilizes the services of nurses is responsible for knowing the
requirements of this rule and for taking reasonable steps to assure that
incident-based nursing peer review is implemented and conducted in compliance
with the NPA, NPR Law, and this section.
(3) A determination by an incident-based
nursing peer review committee, a CNO, nurse administrator, or an individual
nurse to report a nurse to the Board cannot be overruled, dismissed, changed,
or reversed. An incident-based nursing 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 TOC §§ 301.402,
301.405, 217.11(1)(K) of
this title, and this section.
(m) Reporting Conduct of other Practitioners
or Entities: Whistleblower Protections.
(1)
This section does not expand the authority of any incident-based nursing peer
review committee or the Board to make determinations outside the practice of
nursing.
(2) In a written, signed
report to the appropriate licensing Board or accrediting body, and in
accordance with TOC §301.4025 (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.
(3) A nurse
may report to the nurse's employer or another entity at which the nurse is
authorized to practice any situation that the nurse has reasonable cause to
believe exposes a patient to substantial risk of harm as a result of a failure
to provide patient care that conforms to minimum standards of acceptable and
prevailing professional practice or to statutory, regulatory, or accreditation
standards. For purposes of this subsection, an employer or entity includes an
employee or agent of the employer or entity.
(4) A person may not suspend or terminate the
employment of, or otherwise discipline, retaliate, or discriminate against, a
person who reports, in good faith, under this subsection or who advises a nurse
of the nurse's rights and obligations under this subsection. A violation of
this subsection is subject to TOC §301.413 (NPA) that provides a nurse the
right to file a civil suit to recover damages. The nurse may also file a
complaint with the regulatory agency that licenses or regulates the nurse's
practice setting. The BON does not have regulatory authority over practice
settings or civil liability.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.