Texas Administrative Code › Title 22 - EXAMINING BOARDS › Part 11 - TEXAS BOARD OF NURSING › Chapter 217 - LICENSURE, PEER ASSISTANCE, AND PRACTICE › Section 217.20 - Safe Harbor Nursing Peer Review and Whistleblower Protections

Current through Reg. 49, No. 28; July 12, 2024
(a) Definitions.
(1) Assignment--Designated responsibility for
				the provision or supervision of nursing care for a defined period of time in a
				defined work setting. This includes but is not limited to the specified
				functions, duties, practitioner orders, supervisory directives, and amount of
				work designated as the individual nurse's responsibility. Changes in the
				nurse's assignment may occur at any time during the work period.
(2) Bad Faith--Knowingly or recklessly taking
				action not supported by a reasonable factual or legal basis. The term includes
				misrepresenting the facts surrounding the events under review, acting out of
				malice or personal animosity towards the nurse, acting from a conflict of
				interest, or knowingly or recklessly denying a nurse due process.
(3) Chief Nursing Officer (CNO)--The
				registered nurse, by any title, who is administratively responsible for the
				nursing services at a facility, association, school, agency, or any other
				setting that utilizes the services of nurses.
(4) Conduct Subject to Reporting defined by
				Texas Occupations Code (TOC) §301.401 of the Nursing Practice Act as
				conduct by a nurse that:
(A) violates the
				Nursing Practice Act (NPA) or a Board rule and contributed to the death or
				serious injury of a patient;
(B)
				causes a person to suspect that the nurse's practice is impaired by chemical
				dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud,
				or a violation of professional boundaries; or
(D) indicates that the nurse lacks knowledge,
				skill, judgment, or conscientiousness to such an extent that the nurse's
				continued practice of nursing could reasonably be expected to pose a risk of
				harm to a patient or another person, regardless of whether the conduct consists
				of a single incident or a pattern of behavior.
(5) Duty to a patient--A nurse's duty is to
				always advocate for patient safety, including any nursing action necessary to
				comply with the standards of nursing practice (§
										217.11
				of this title) and to avoid engaging in unprofessional conduct (§
										217.12
				of this title). This includes administrative decisions directly affecting a
				nurse's ability to comply with that duty.
(6) Good Faith--Taking action supported by a
				reasonable factual or legal basis. Good faith precludes misrepresenting the
				facts surrounding the events under review, acting out of malice or personal
				animosity, acting from a conflict of interest, or knowingly or recklessly
				denying a nurse due process.
(7)
				Incident-Based Nursing Peer Review--Incident-based nursing peer review focuses
				on determining if a nurse's actions, be it a single event or multiple events
				(such as in reviewing up to five (5) minor incidents by the same nurse within a
				year's period of time) should be reported to the Board, or if the nurse's
				conduct does not require reporting because the conduct constitutes a minor
				incident that can be remediated. The review includes whether external factors
				beyond the nurse's control may have contributed to any deficiency in care by
				the nurse, and to report such findings to a patient safety committee as
				applicable.
(8) Malice--Acting with
				a specific intent to do substantial injury or harm to another.
(9) Minor incident--Conduct by a nurse that
				does not indicate that the nurse's continued practice poses a risk of harm to a
				patient or another person as described in §
										217.16
				of this title.
(10) Nurse
				Administrator--Chief Nursing Officer (CNO) or the CNO's designee.
(11) Nursing Peer Review Law (NPR
				law)--Chapter 303 of the TOC. Nurses involved in nursing peer review must
				comply with the NPR Law.
(12)
				Nursing Practice Act (NPA)--Chapter 301 of the TOC. Nurses must comply with the
				NPA.
(13) Patient Safety
				Committee--Any committee established by an association, school, agency, health
				care facility, or other organization to address issues relating to patient
				safety including:
(A) the entity's medical
				staff composed of individuals licensed under Subtitle B (Medical Practice Act,
				TOC §151.001, et seq);
(B) a
				medical committee under Subchapter D, Chapter 161 of the Health and Safety Code
				(§§161.031 - 161.033); or
(C) a multi-disciplinary committee, including
				nursing representation, or any committee established by the same entity to
				promote best practices and patient safety.
(14) Peer Review--Defined by TOC
				§303.001(5) (NPR Law) as the evaluation of nursing services, the
				qualifications of a nurse, the quality of patient care rendered by a nurse, the
				merits of a complaint concerning a nurse or nursing care, and a determination
				or recommendation regarding a complaint. The term also includes the provision
				of information, advice, and assistance to nurses and other persons relating to
				the rights and obligations of and protections for nurses who raise care
				concerns, report under Chapter 301, request nursing peer review, and the
				resolution of workplace and practice questions relating to nursing and patient
				care. The nursing peer review process is one of fact finding, analysis and
				study of events by nurses in a climate of collegial problem solving focused on
				obtaining all relevant information about an event. Nursing peer review
				conducted by any entity must comply with NPR Law and with applicable Board
				rules related to incident-based or safe harbor nursing peer review.
(15) Safe Harbor--A process that protects a
				nurse from employer retaliation, suspension, termination, discipline,
				discrimination, and licensure sanction when a nurse makes a good faith request
				for nursing peer review of an assignment or conduct the nurse is requested to
				perform and that the nurse believes could result in a violation of the NPA or
				Board rules. Safe harbor must be invoked prior to engaging in the conduct or
				assignment for which nursing peer review is requested, and may be invoked at
				anytime during the work period when the initial assignment changes.
(16) Texas Occupations Code (TOC)--One of the
				topical subdivisions or "codes" into which the Texas Statutes or laws are
				organized. The TOC contains the statutes governing occupations and professions
				including the health professions. Both the NPA and NPR Law are located within
				these statutes. The TOC can be changed only by the Texas Legislature.
(17) Whistleblower Protections--Protections
				available to a nurse that prohibit retaliatory action by an employer or other
				entity because the nurse:
(A) made a good
				faith request for safe harbor nursing peer review under TOC §303.005(c)
				and this section; or
(B) refused to
				engage in an act or omission relating to patient care that would constitute a
				violation of the NPA or Board rules as permitted by TOC §301.352 (NPA)
				(Protection for Refusal to Engage in Certain Conduct). A nurse invoking safe
				harbor under this section must comply with subsection (g) of this section if
				the nurse refuses to engage in the conduct or assignment; or
(C) made a lawful report of unsafe
				practitioners, or unsafe patient care practices or conditions, in accordance
				with TOC §301.4025 (report of unsafe practices of non-nurse entities) and
				§
											217.19(j)(2)
				of this title.