TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.20

Introduction. The Texas Board of Nursing (Board) adopts amendments to §217.20, concerning Safe Harbor Nursing Peer Review and Whistleblower Protections. The amendments are adopted without changes to the proposed text published in the August 30, 2018, issue of the Texas Register (44 TexReg 4628) and will not be republished.

Reasoned Justification. The amendments are adopted under the authority of the Texas Occupations Code §303.005 and House Bill (HB) 2410, enacted by the 86th Texas Legislature, effective September 1, 2019.

House Bill (HB) 2410 was enacted during the 86th Legislative Session and will become effective September 1, 2019. Under current law, if a nurse believes he/she is requested to engage in conduct that violates the nurse's duty to a patient, the nurse may request a peer review committee to determine if the requested conduct violates the nurse's duty to the patient. In order to invoke this review, the nurse must complete a written request meeting certain, specified requirements. HB 2410 amends §303.005 to allow a nurse to orally request this peer review determination if the nurse is unable to complete a written form due to immediate patient care needs. Further, upon receiving the nurse's oral notification, HB 2410 requires the nurse's supervisor to record the request in writing. The nurse is still required to file a more comprehensive written report before leaving the practice setting at the end of the work period, regardless of the manner (in writing or orally) the nurse initially invokes the request for review. The adopted amendments to §217.20 are necessary to conform to these statutory changes.

How the Sections Will Function. Adopted §217.20(d)(2) specifies the notification requirements a nurse must meet if he/she chooses to invoke a review by a nursing peer review committee. First, the nurse must notify the supervisor requesting the conduct or assignment in writing that the nurse is invoking safe harbor. The content of this notification must meet the requirements for a Safe Harbor Quick Request, as set out in the Boards' rules. If a nurse is unable to complete a Safe Harbor Quick Request or other written form meeting the requirements for a Safe Harbor Quick Request due to immediate patient care needs, the nurse may orally invoke safe harbor by notifying the nurse's supervisor of the request. Further, after receiving oral notification of the request, the nurse's supervisor must record in writing the requirements described in the Board's rules, and the record must be signed and attested to by the requesting nurse and the nurse's supervisor who prepared the written record. Finally, a detailed written account of the safe harbor request that meets the requirements of the Comprehensive Written Request for Safe Harbor Nursing Peer Review, as set out in the Board's rules, must still be completed before leaving the work setting at the end of the work period.

Adopted §217.20(d)(3) provides that the Safe Harbor Quick Request Form may be used to initially invoke safe harbor, but the form is not required. An initial request may be in any written format, but must contain the information specified in the Board's rule. This information includes the name of the nurse making the request and his/her signature; the date and time of the request; the location where the conduct or assignment that is the subject of the request occurred; the name of the person who requested the nurse engage in the conduct or made the assignment that is the subject of the request; the name of the supervisor recording the request, if applicable; a brief explanation of why the nurse is requesting a nursing peer review committee determination; and a description of the collaboration between the nurse and the supervisor, if applicable.

The remaining amendments to the section make conforming editorial changes.

Summary of Comments. The Board did not receive any comments on the proposal.

Statutory Authority. The amendments are adopted under the Occupations Code §301.151 and §303.005.

Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 303.005(b) states that, except as provided by §303.005(b-1), if a person who is required to establish a nursing peer review committee under §303.0015 requests a nurse to engage in conduct that the nurse believes violates a nurse's duty to a patient, the nurse may request, on a form developed by the Board or on another form that meets standards developed by the Board, a determination by a nursing peer review committee under this chapter of whether the conduct violates a nurse's duty to a patient.

Section 303.005(b-1) states that, if a nurse is unable to complete a form required by §303.005(b) due to immediate patient care needs, the nurse may request a nursing peer review committee determination by orally notifying the nurse's supervisor of the request. After receiving oral notification of a request, the nurse's supervisor shall record in writing the name of the nurse making the request; the date and time of the request; the location where the conduct or assignment that is the subject of the request occurred; the name of the person who requested the nurse engage in the conduct or made the assignment that is the subject of the request; the name of the supervisor recording the request; brief explanation of why the nurse is requesting nursing peer review committee determination; and a description of the collaboration between the nurse and the supervisor.

Section 303.005(b-2) states that, to be a valid request for a nursing peer review committee determination, the written record prepared under §303.005(b-1) must be signed and attested to by the requesting nurse and the nurse's supervisor who prepared the written record.

Section 303.005(d) provides that, if a nurse requests a peer review determination under §303.005(b) or (b-1) and refuses to engage in the requested conduct pending the peer review, the determination of the 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, but the determination is not binding if a nurse administrator believes in good faith that the peer review committee has incorrectly determined a nurse's duty. This subsection does not affect the protections provided by §303.005(c)(1) or §301.352.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 2, 2019.

TRD-201903564

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Effective date: October 22, 2019

Proposal publication date: August 30, 2019

For further information, please call: (512) 305-6822