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Frequently Asked Questions - Nursing Peer Review

General Peer Review Information

What is Nursing Peer Review (NPR)? [Tex. Occ. Code §303.001(5)]

Nursing peer review 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 nursing care, and a determination or recommendation regarding a complaint including:

  1. the evaluation of the accuracy of a nursing assessment and observation and the appropriatenessand quality of the care rendered by a nurse;
  2. a report made to a nursing peer review committee concerning an activity under the committee’sreview authority;
  3. a report made by a nursing peer review committee to another committee or to the Board ofNursing (Board) as permitted or required by law;
  4. implementation of a duty of a nursing peer review committee by a member, an agent, or anemployee of the committee; and
  5. the provision of information, advice, and assistance to nurses and other persons relating to:
    1. the rights and obligations of and protections for nurses who raise care concerns orreport under Chapter 301 of the Texas Occupations Code or other state or federal law;
    2. the rights and obligations of and protections for nurses who request nursing peer reviewunder this chapter;
    3. nursing practice and patient care concerns; and
    4. the resolution of workplace and practice questions relating to nursing and patient care.

A nursing peer review committee may review the nursing practice of an LVN, RN, or APRN (Advanced Practice Registered Nurse).
There are two kinds of nursing peer review:

  1. Incident-based nursing peer review (IBNPR), which focuses on determining if a nurse’s action,be it a single event or multiple events (such as in reviewing up to five (5) minor incidents by thesame nurse within a year’s period of time) should be reported to the Board, or if the nurse’sconduct does not require reporting because the conduct constitutes a minor incident that canbe remediated. The review includes whether external factors beyond the nurse’s control mayhave contributed to any deficiency in care by the nurse, and to report such findings to a patientsafety committee as applicable; or
  2. Safe harbor nursing peer review (SHNPR), a process that protects a nurse from employerretaliation, suspension, termination, discipline, discrimination, and licensure sanction when anurse makes a good faith request for nursing peer review of an assignment or conduct the nurseis requested to perform and that the nurse believes could result in a violation of the NursingPractice Act (NPA) or Board rules. Safe harbor must be invoked prior to engaging in the conductor assignment for which nursing peer review is requested, and may be invoked at any timeduring the work period when the initial assignment changes.

See Tex. Admin. Code §§217.19(Incident-Based Nursing Peer Review and Whistleblower Protections) and 217.20 (Safe HarborNursing Peer Review and Whistleblower Protections)

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What is a nursing peer review committee (NPRC)? [Tex. Occ. Code §303.001(4); Tex. Admin. Code §§217.19(a)(14) and 217.20(a)(14)]

It is a committee established under the authority of the governing body of a national, state, or local nursing association; a school of nursing; the nursing staff of a hospital, health science center, nursing home, home health agency, temporary nursing service, or other health care facility; or state agency or political subdivision for the purpose of conducting nursing peer review. The committee includes an employee or agent of the committee, including an assistant, an investigator, an intervener, an attorney, and any other person who serves the committee in any capacity. 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.

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Is an employer required to have a nursing peer review committee? [Tex. Occ. Code §303.0015; Tex. Admin. Code §§217.19(c) and 217.20(c)]

A person must establish a nursing peer review committee to conduct nursing peer review in accordance with NPR Law (Chapter 303 of the Texas Occupations Code) and the NPA (Chapter 301 of the Texas Occupations Code):

  • for vocational nurses: if the person regularly employs, hires, or contracts for the services of eight (8) or more nurses; and
  • for professional nurses: if the person regularly employs, hires, or contracts for the services of eight (8) or more nurses, at least four (4) of whom are registered nurses.

A person required to establish a nursing peer review committee under this section may contract with another entity to conduct the nursing peer review for the person.

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What is the nursing peer review committee’s composition? (Tex. Occ. Code §303.003; Tex. Admin. Code §§217.19(d)(3)(B) and 217.20(c))

  • A NPRC must have nurses (LVNs, RNs, and/or APRNs) as ¾ of its members.
  • A NPRC conducting nursing peer review of a LVN’s practice must, to the extent feasible, includeLVNs as members of the NPRC and only RNs and LVNs may vote (other non-nurse members ofthe committee may NOT vote).
  • A NPRC conducting nursing peer review of a RN’s practice must have RNs as 2/3 of its membersand only RNs may vote (LVNs and other non-nurse members of the committee may NOT vote).
  • A NPRC must include, to the extent feasible, at least one nurse who has working familiarity withthe same area of nursing practice as the nurse being reviewed.

For incident-based nursing peer review (IBNPR): the NPRC may not include any person(s) with administrative authority for personnel decisions directly relating to the nurse. Any person(s) with administrative authority for personnel decisions directly relating to the nurse may not attend the IBNPR hearing (the only exception is a person who is administratively responsible over the nurse being reviewed may appear before the NPRC to speak as a fact witness to the conduct being reviewed).

For safe harbor nursing peer review (SHNPR): the NPRC may not include any person(s) with administrative authority for personnel decisions directly affecting the nurse. A CNO, nurse administrator, or other individual with administrative authority over the nurse, including the individual who requested the conduct or made the assignment for which the nurse under review invoked SHNPR, may only appear before the committee to speak as a fact witness.

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What part of the nursing peer review process is confidential? [Tex. Occ. Code §§303.006-.007; 303.0075; Tex. Admin. Code §§217.19(h) and 217.20(j)(3)]

All proceedings of the nursing peer review committee are confidential and all communications made to the committee are privileged. A member, agent, or employee of a nursing peer review committee or a participant in a proceeding before the committee may not disclose or be required to disclose a communication made to the committee or a record or proceeding of the committee. A person who attends a nursing peer review committee proceeding may not disclose or be required to discloseinformation acquired in connection with the proceeding or an opinion, recommendation, or evaluation of the committee or a committee member. A nursing peer review committee member and a person who provides information to the committee may not be questioned about testimony before the committee or an opinion formed as a result of the committee proceedings. All information made confidential is not subject to subpoena or discovery in any civil matter, is not admissible as evidence in any judicial or administrative proceeding, and may not be introduced into evidence in a nursing liability suit arising out of the provision of, or failure to provide, nursing services. Tex. Occ. Code §303.0075 addresses protection of information shared between a nursing peer review committee and a patient safety committee established by the same entity.

A facility conducting incident-based nursing peer review must have written policies and procedures that, among other requirements, found in Tex. Admin. Code §217.19(d)(2), must address confidentiality and safeguards to prevent impermissible disclosures, including written agreement by all parties to abide with NPR Law and Tex. Admin. Code §217.19(h). The CNO/Nurse Administrator must ensure that policies are in place relating to sharing of information and documents between an incident-based NPRC and a patient safety committee [See Tex. Admin. Code §217.19(h)(3)].

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To whom may a nursing peer review committee disclose privileged information (Tex. Occ. Code §303.007)?

Upon request, the committee must disclose written or oral communications made to the nursing peer review committee and the records and proceedings of the committee to:

  1. a licensing authority of any state; or
  2. a law enforcement agency investigating a criminal matter.

The committee may disclose written or oral communications made to the nursing peer review committee and the committee records and proceedings to:

  1. a licensing agency of any state; or
  2. a law enforcement agency investigating a criminal matter;
  3. the association, school, agency, facility, or other organization under whose authority thecommittee is established (i.e., employer);
  4. another nursing peer review committee;
  5. a peer assistance program approved by the Board under Chapter 457, Health and Safety Code;
  6. an appropriate state or federal agency, or accrediting organization that accredits health carefacility or school of nursing or surveys a facility for quality of care; or
  7. a person engaged in bona fide research, if all information that identifies a specific individual isdeleted.

A nursing peer review committee that discloses information permitted by law and each person receiving the disclosed information must protect, to the extent possible, the identity of each patient.

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Is it acceptable to use an informal workgroup of the nursing peer review committee for eitherincident-based or safe harbor nursing peer review? Do the same time lines apply for conducting the review when using an informal workgroup of the nursing peer review committee? [Tex. Admin. Code§§217.19(e) and 217.20(k)]

Yes, an entity conducting nursing peer review may choose to use an informal review process utilizing a workgroup of the nursing peer review committee for either incident-based or safe-harbor nursing peerreview. A nurse involved as the primary party in nursing peer review does not waive due process rights by agreeing to work with an informal workgroup, including the right to reject the decision of theinformal workgroup and have a review by the entire nursing peer review committee. See Tex. Admin.Code §§217.19(e) and 217.20(k) for specific requirements when using an informal workgroup of the nursing peer review committee. Specific policies must be in place for using informal work groups. The timelines applicable to the NPRC remain the same with the informal workgroup.

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Can the Nursing Peer Review Law and Board rules serve as an organization’s policies and procedures?

While it is important to incorporate the minimum regulatory requirements in policy and procedure, many other details must be included in nursing peer review policies and procedures in order to have an operational nursing peer review committee structure. As the Board does not regulate practice settings, the Board does not have authority to prescribe every aspect of nursing peer review at the facility or employer level. Examples of issues that must be addressed in facility policies include (but are not limited to):

  • How many nurses (LVN and RN) will be members of the facility’s nursing peer reviewcommittee?
  • How long does a nurse serve on the nursing peer review committee?
  • How will nurses be informed of their minimum due process rights?
  • Level of participation by the nurse (or his/her representative at an incident-based nursing peerreview hearing?
  • Confidentiality and sharing of information
  • How are incidents involving an impaired nurse (or a nurse suspected of being impaired)reviewed by a NPRC?
  • Reporting of nurses to the Board by incident-based NPRC in compliance with Tex. Occ. Code §301.403?
  • How is the facility’s legal counsel involved in nursing peer review, and how does the facilityassure "parity of counsel?"
  • How will documents of the nursing peer review committee and the patient safety committee bemarked so that the origin of any shared documents can be determined in order to comply withTec. Occ. Code §303.0075(c).
  • How will the facility meet the requirements specified in both Tex. Admin. Code §§217.19(e) and217.20(k) when using an informal workgroup of the nursing peer review committee?

All policies should include effective dates, and any changes to policies cannot be applied to proceedings initiated before the change is adopted unless the nurse being reviewed agrees in writing. All policies and procedures concerning NPR should be provided to the nurse being reviewed, including a copy of the facility’s incident-based nursing peer review plan and a copy of Tex. Admin. Code §217.19.

Entities desiring to establish or substantially revise their nursing peer review policies and procedures may find it helpful to contact professional organizations that represent nurses or other similar healthcare settings. Such organizations may have developed generic policies, forms, etc. on nursing peer review for the benefit of their membership, and may have such information available for sale to the public.

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What records should a nursing peer review committee chairperson maintain, and for how long? What records should the nursing peer review committee chairperson send to the Board when subpoenaed by the Board to send all nursing peer review records related to the nurse under investigation?

The NPR statute does not specify requirements related to records retention of nursing peer review proceedings, nor has the Board established any time frame by rule. The Board encourages facilities and employers to consider a permanent method of archiving nursing peer review documents. There is no statute of limitations on when nursing violations can be reported to the Board, including alleged violations of the nurse’s due process rights in relation to a nursing peer review proceeding. Therefore, if permanent archiving is not possible, then the longest retention period possible is encouraged.
Examples of nursing peer review records that should be submitted in response to a Board subpoena requesting all records related to a nurse under investigation includes, but is not limited to:

  • Copies of facility policies in effect at the time of the proceeding;
  • Identities of the specific nurses who were members of the nursing peer reviewcommittee and designation of their licensure and area of practice
  • Relevant documents, such as: staffing schedules, assignment sheets, staffingplans/polices;
  • A complete, detailed description of the incident(s), including: patient(s) medical recordnumber(s), date(s) of the incident(s), nurse(s) involved, witness and, if applicable, asummary of witness statements with full names of witnesses, and if possible, theircontact information, and any additional relevant information;
  • Copies of the notice letter sent to the nurse and proof that the nurse received it or thatthe letter was returned;
  • The nurse’s rebuttal statement, if any;
  • Factor’s beyond the nurse’s control that may relate to the incident(s);
  • If applicable, safe harbor nursing peer review forms signed by the nurse and applicablestaff throughout the states of the nursing peer review process; and
  • Documents showing the nursing peer review committee’s evaluation anddetermination/recommendation, corrective actions taken, if any, and evidence ofcompleted remediation, if any.

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What whistleblower protections does a nurse have if he/she reports a facility, agency, school or other entity that provides healthcare services, or a physician or other licensed practitioner for endangering patients/clients or engaging in unethical or illegal conduct? [Tex. Occ. Code §§301.4025, 301.412, 301.413; Tex. Admin. Code §§217.19(m) and 217.20(I)]

The above listed sections of the NPA and Board rules address protections a nurse has when reporting unsafe practices of practitioners other than nurses (such as physicians, dentists, etc.) or entities (such as hospitals, nursing homes, home health agencies, etc.) to the appropriate licensing entities/agencies of such practitioners and/or healthcare settings. The Board does not regulate practitioners who are not nurses, or facilities, agencies, or other entities that utilize the services of nurses. Thus, reports regarding other practitioners or entities should be reported to the appropriate licensing or regulatory agency not to the Board. Should a nurse experience or be threatened with retaliatory measures for reporting unsafe conditions or practitioners, the nurse may seek his/her own legal counsel for guidance.

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Updated May 20, 2018


Incident-Based Nursing Peer Review

What is incident-based nursing peer review? [Tex. Admin. Code §217.19(a)(7)]

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.

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What due process rights must the nursing peer review committee provide to the nurse undergoing incident-based nursing peer review (IBNPR)? [Tex. Admin. Code §217.19(d)]

Review of Chapter 303 of the Texas Occupations Code (NPR Law) in its entirety is recommended in order to ensure compliance with due process and good faith nursing peer review requirements. Tex. Admin. Code §217.19(d) delineates specific requirements for minimum due process during IBNPR. Committee membership and voting requirements are described in Tex. Occ. Code §303.003; Tex. Admin. Code §217.19(d).

The incident-based nursing peer review committee must provide written notification to the nurse regarding the nursing peer review process as well as other components that are part of the nurse’s minimum due process rights under Tex. Admin. Code §217.19(d). In order to meet the minimum due process required by NPR Law, the nursing peer review committee must:

  • Provide written notice to the nurse in person or by certified mail at the last known address thenurse has on file with the facility that:
    • his/her practice is being evaluated by the nursing peer review committee;
    • the incident-based nursing peer review committee will meet on a specified date notsooner than 21 calendar days and not more than 45 calendar days from date of notice,unless:
      • the incident-based nursing peer review committee determines an extendedtime period (extending the 45 days by no more than an additional 45 days) isnecessary in order to consult with a patient safety committee; or
      • otherwise agreed upon by the nurse and incident-based nursing peer reviewcommittee; and
  • The written notice must also include:
    • a description of the event(s) to be evaluated in enough detail to inform the nurse of theincident, circumstances and conduct (error or omission), including date(s), time(s),location(s), and individual(s) involved. The patient/client must be identified by initials ornumber to the extent possible to protect confidentiality, but the nurse must beprovided the name of the patient/client;
    • the name, address and telephone number of the contact person to receive the nurse’sresponse (typically the nursing peer review chairperson); and
    • A copy of the facility’s incident-based nursing peer review plan, policies and proceduresand Tex. Admin. Code §217.19.
  • Additionally, the incident-based nursing peer review committee must provide the nurse theopportunity to review, in person or by attorney, documents concerning the event under review,at least 15 calendar days prior to appearing before the committee.
  • The incident-based nursing peer review committee must also provide the nurse the opportunityto:
    • submit a written statement regarding the event under review;
    • call witnesses, question witnesses, and be present when testimony or evidence is being presented;
    • be provided copies of the witness list and written testimony or evidence at least 48hours in advance of proceeding;
    • make an opening statement to the committee;
    • ask questions of the committee and respond to questions of the committee; and
    • make a closing statement to the committee after all evidence is presented.
  • The committee must:
    • complete its review no more than 14 calendar days after the incident-based nursingpeer review hearing, or in compliance with 217.19(d)(C)(ii) relating to consultation witha patient safety committee;
    • 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 10 calendar days of when the committee’s review has been completed; and
    • permit the nurse to file a written rebuttal statement within 10 calendar days of thenotice of the committee’s findings and make the statement a permanent part of theincident-based nursing peer review record to be included whenever the committee’sfindings are disclosed.

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May the employer take disciplinary action prior to conducting incident-based nursing peer review? [Tex. Occ. Code §301.405(e)]

Employment and licensure issues are separate. An employer may take disciplinary action before the nursing peer review committee is convened, as nursing peer review does not have to be utilized to determine issues related to employment. The role of the nursing peer review committee is to determine if licensure violations have occurred and, if so, if the violations require reporting to the Board. If a report to the BON is required under Tex. Occ. Code §301.405(b), then the role of the nursing peer review committee is to investigate whether external factors impacted the error or situation and to report their findings to a patient safety committee (or CNO if no patient safety committee) if they determine the nurse’s deficiency in care was the result of external factors [Tex. Occ. Code §301.405(c)].

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Does an employer have to report to the Board if they terminate a nurse, or make an agency nurse a “do-not-return,” for practice-related errors? [Tex. Occ. Code §301.405(b)]

If an employer terminates a nurse for non-practice-related reasons (such as too many absences, or non-patient-related misconduct), this is an employment-related issue, not a licensure issue, and is not Board-reportable.
However, if an employer terminates a nurse (voluntarily or involuntarily), suspends for seven (7) or more days, or takes other substantive disciplinary action against a nurse, or substantially equivalent action against an agency nurse for nursing practice errors/concerns [conduct subject to reporting, as defined in Tex. Occ. Code §301.401(1)], the employer must report to the Board (BON) in writing:

  1. the identity of the nurse;
  2. the conduct subject to reporting that resulted in the termination, suspension or othersubstantive disciplinary action or substantially equivalent action; and
  3. any additional information the Board requires.

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Does the incident-based nursing peer review (IBNPR) committee have to meet if the nurse voluntarily resigns or is involuntarily terminated for practice related reasons? Does the nurse have due process rights under incident-based nursing peer review if a report to the BON is mandatory under Tex. Occ. Code §301.405(b) or §301.402(b)? [Tex. Occ. Code §301.405(c); Tex. Admin. Code §217.19(f)(1)]

Tex. Occ. Code §301.405(c) requires that if a mandatory report by the employer has been made to the BON under Tex. Occ. Code §301.405(b), a copy of the report must be submitted to the nursing peer review committee and the nursing peer review committee must still meet to determine if external factors beyond the nurse’s control impacted the nurse’s deficiency in care. If the nursing peer review committee believes external factors were involved in the incident (whether or not the nurse is being reported to the BON), the committee is required to also report the issue to the patient safety committee at the facility where the reported conduct occurred or to the CNO/nurse administrator if there is no patient safety committee.
Because the nursing peer review committee is reviewing the incident solely to determine the existence of external factors, the due process rights of incident-based nursing peer review do not apply. In addition, a nursing peer review committee cannot make a determination that would negate the duty of the employer to report the nurse under Tex. Occ. Code §301.405(b) or of the CNO/nurse administrator to report the nurse under Tex. Occ. Code §301.402(b).

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Must the recommendations made by the incident-based nursing peer review (IBNPR) committee be followed by the employer?

The nursing peer review committee does not have the authority to make employment or disciplinary decisions. The employer must make their own decisions about appropriate disciplinary actions; however, the employer may choose to utilize the decisions of the incident-based nursing peer review committee in determining what actions they wish to take with regard to the nurse’s employment. In addition, an employer may not prohibit a nursing peer review committee from filing a report to the BON if the nursing peer review committee has determined in good faith that a nurse’s practice must be reported to the Board in compliance with Tex. Occ. Code §301.403 and Tex. Admin. Code §§217.11(1)(K) and 217.19.

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What is a Minor Incident? [Tex. Occ. Code §301.401(2); Tex. Admin. Code §217.16(a)]

A "minor incident" is conduct by a nurse that may be a violation of the Texas Nursing Practice Act or a Board rule but does not indicate that the nurse’s continued practice poses a risk of harm to a patient or another person.

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Are there exclusions to what can be considered a minor incident? [Tex. Admin. Code §217.16]

Yes. Tex. Admin. Code §217.16(h) defines conduct that falls outside the definition of a minor incident and must be reported to a nursing peer review committee or to the Board:

  1. conduct that ignores a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;
  2. conduct that violates the Texas Nursing Practice Act or a Board rule and contributed to the death or serious injury of a patient;
  3. a practice related violation involving impairment or suspected impairment by reason of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity;
  4. a violation of Tex. Admin. Code §217.12 with actions that constitute abuse, exploitation, fraud, or a violation of professional boundaries; or
  5. actions that indicate 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.

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What are the factors for determining if minor incidents are reportable to the Board or the nursing peer review committee?

Tex. Admin. Code §217.16(d)&(e) describe how to evaluate whether conduct is a minor incident. A combination of factors must be reviewed, including the nurse’s conduct, those factors viewed to be beyond the nurse’s control, and the relationship between the two that influenced or impacted the nursing practice breakdown.

If required remediation to address the deficit(s) in the nurse’s knowledge, judgment, skills, professional responsibility, or patient advocacy that contributed to the incident is not completed by the nurse, the nurse must be reported to the nursing peer review committee or to the Board if the practice setting does not have nursing peer review. (Note: If it was determined that remediation would not address the identified deficit(s) in the nurse’s knowledge, judgment, skills, professional responsibility, or patient advocacy that contributed to the incident, the conduct cannot be considered a minor incident and must be reported to the nursing peer review committee or to the Board if the practice setting does not have nursing peer review.)

In determining whether multiple minor incidents constitute grounds for reporting the nurse to the nursing peer review committee or the Board if the practice setting does not have nursing peer review, an evaluation must be conducted to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk of harm.

If a nurse commits five minor incidents within a 12-month period, the nurse must be reported to the nursing peer review in practice settings with nursing peer review. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12-month period must be reported to the Board.

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What is the nursing peer review committee required to report to the Board? [Tex. Occ. Code §§301.401(1), 301.403; Tex. Admin. Code §§217.11, 217.12, 217.16, and 217.19.]

A nursing peer review committee is required to make a report to the Board if they believe in good faith that a nurse has engaged in conduct subject to reporting as defined under the Tex. Occ. Code §301.401(1). This typically involves one or more suspected violations of Tex. Admin. Code §§217.11,Standards of Nursing Practice, or 217.12, Unprofessional Conduct, or may fail to meet the criteria for consideration as a minor incident [Tex. Admin. Code §217.16(h) discussed above].

If a nursing peer review committee finds that a nurse engaged in conduct that is subject to reporting, the committee must file a signed, written report to the BON that includes:

  1. the identity of the nurse;
  2. a description of any corrective action that was taken against the nurse;
  3. a recommendation whether the Board should take formal disciplinary action against the nurseand the basis for the recommendation;
  4. a description of the conduct subject to reporting [defined under Tex. Occ. Code §301.401(1)];
  5. the extent to which any deficiency in care provided by the nurse was the result of a factorbeyond the nurse’s control; and
  6. any additional information the board requires.

Note that failure to classify an event appropriately in order to avoid reporting the nurse to the BON may result in action against the nurse or nurses on the nursing peer review committee responsible for reporting, and/or the CNO who failed to report to the Board under his/her duty as a nurse in compliance with Tex. Occ. Code §301.402.

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If a nurse’s practice is impaired or suspected of being impaired secondary to chemical dependency, drug or alcohol abuse, substance abuse/misuse, “intemperate use,” mental illness, or diminished mental capacity, must nursing peer review be conducted and a report be filed with the Board? [Tex. Occ. Code §301.410; Tex. Admin. Code §217.19(g)]

Any person or entity with a mandatory reporting requirement (outlined in NPA Subchapter I, Reporting Violations and Patient Care Concerns) to report a nurse for impairment or suspected impairment may report the nurse to a peer assistance program approved by the Board, instead of reporting the nurse to the Board or the nursing peer review committee, so long as there is not a practice violation.
Any person or entity with a mandatory reporting requirement (outlined in NPA Subchapter I) to report a nurse for impairment or suspected impairment MUST report the nurse to the Board if the person/entity believes the impaired nurse committed a practice violation.
If a nurse is being reviewed by the incident-based nursing peer review committee (IBNPRC) and during the course of the incident-based nursing peer review process there is evidence of impairment or suspected impairment due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, “intemperate use”, mental illness or diminished mental capacity, nursing peer review of that nurse must be suspended. If there is no reasonable factual basis for determining that a practice violation is involved, the IBNPRC can either report the nurse to the Board or to a Board-approved peer assistance program. If there is a reasonable factual basis for determining that a practice violation is involved, the IBNPRCmust report the nurse to the Board.

The incident-based nursing peer review (IBNPRC) committee must reconvene following suspension ofnursing peer review of the nurse who was impaired or suspected of being impaired for the sole purpose of determining whether any factors beyond the nurse’s control contributed to a practice violation and any deficiency in external factors enabled the nurse to engage in unprofessional or illegal conduct. If the committee determines that external factors do exist, the committee must report its findings to the patient safety committee or the CNO if there is no patient safety committee. Remember that because the nurse’s practice is not being reviewed (only the surrounding factors), due process rights for the nurse do not apply.

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Who conducts incident-based nursing peer review for a temporary or contract employee? (Tex. Occ. Code §303.004)

The nurse who works through a temporary agency or contractor may be subject to nursing peer review by the facility where services are provided, the compensating agency, or both. For the purposes of exchange of information, the nursing peer review committee reviewing the conduct is considered as established under the authority of both so that the confidentiality requirements of nursing peer review are enforceable against any nurse involved in the investigation or the nursing peer review proceeding. The two entities may choose to have a contract with respect to which entity will conduct incident-based nursing peer review of the nurse.

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Updated May 20, 2018


Safe Harbor Peer Review

What is safe harbor? [Tex. Occ. Code §303.005(b) and (e); Tex. Admin. Code §217.20(a)(15)]

Safe harbor is a nursing peer review process that a nurse may initiate when asked to engage in an assignment or conduct that the nurse believes, in good faith, would potentially result in a violation of the Nursing Practice Act (NPA) or Board rules. When invoked in good faith, safe harbor protects a nurse from employer retaliation, suspension, termination, discipline, discrimination, and from licensure sanction by the Board of Nursing (“BON” or “Board”). 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 any time during the work period when the initial assignment changes.
Examples of safe harbor situations include clinical assignments related to staffing and/or acuity of patients when the nurse believes patient harm may result [Tex. Admin. Code §217.11(1)(B) and (T)], and can involve a request to engage in unprofessional or illegal conduct, such as falsifying medical record documents.
Safe harbor also allows for a nurse to request that a determination be made on the medical reasonableness of a physician’s order [Tex. Occ. Code §303.005(e)]. There is a separate form for requesting a determination regarding the Medical Reasonableness of a Physician’s Order.

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What protections of a nurse's license are applicable under safe harbor? [Tex. Occ. Code §§301.352 and 303.005 (c), (d), & (h); Tex. Admin. Code §217.20(e)]

A nurse who in good faith requests safe harbor nursing peer review:

  1. may not be suspended, terminated, or otherwise disciplined, retaliated, or discriminated againstfor making the request;
  2. may engage in the requested conduct pending the nursing peer review;
  3. may not be reported to the Board for engaging in the conduct awaiting the nursing peer reviewdetermination; and
  4. may not be disciplined by the Board for engaging in that conduct while the nursing peer reviewcommittee’s determination is pending.

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Where do I send my safe harbor request? Do I fax it to the Board of Nursing?

Please DO NOT mail or fax your request for safe harbor nursing peer review to the Board of Nursing. The BON does not conduct nursing peer review. Safe harbor nursing peer review must be done through the nursing peer review committee at the facility or agency where the conduct was requested/assignment was made. You should submit your request to the supervisor who requested the conduct/made the assignment. Please review the instructions on the Comprehensive Written Request for Safe Harbor Nursing Peer Review form. Remember, you are not required to use the forms provided by the BON; however, your request must be written and include the minimum information outlined in Tex. Admin. Code §217.20(d). The forms provided by the BON are meant to be a helpful resource to ensure you include all of the necessary information in your request.

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How does a nurse invoke these protections? [Tex. Admin. Code §217.20(d)]

At the time the nurse is requested to engage in the conduct/the assignment is made, the nurse must notify the supervisor requesting the conduct/making the assignment in writing that the nurse is invoking safe harbor in order to activate safe harbor protections. The nurse may use the BON Safe Harbor Quick Request Form (available on the BON website), or any other means of recording the initial request for safe harbor in writing with at least the minimum information required under Tex. Admin. Code §217.20(d)(3)(A)(i)-(v):

  1. The nurse(s) name making the safe harbor request and his/her signature(s);
  2. The date and time of the request;
  3. The location of where the conduct or assignment is to be completed;
  4. The name of the person requesting the conduct or making the assignment; and
  5. A brief explanation of why safe harbor is being requested.

This written Safe Harbor Quick Request may be brief, but before leaving the work setting at the end of the work period, the nurse must submit a Comprehensive Written Request for Safe Harbor Nursing Peer Review (a detailed account) of his/her request for safe harbor. Additional supporting documents may still be supplied at a later date. The Safe Harbor Quick Request and Comprehensive Written Request for Safe Harbor Nursing Peer Review forms are available on the BON web site. The BON forms are optional and do not have to be utilized by the nurse making a written request for safe harbor. The Comprehensive Written Request for Safe Harbor Nursing Peer Review must contain at least the minimum information required under Tex. Admin. Code §217.20(d)(4)(A)(i)-(vi):

  1. the conduct assigned or requested, including the name and title of the person making the assignment or request;
  2. a description of the practice setting, e.g., the nurse’s responsibilities, resources available, extenuating or contributing circumstances impacting the situation;
  3. 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 from Tex. Admin. Code §217.11 or other section of theNPA and/or Board rules the nurse believes would have been violated;
  4. if applicable, the rationale for the nurse’s not engaging in the requested conduct or assignment awaiting the nursing peer review committee’s determination as to the nurse’s duty. The rationale should refer to one of the justifications described in Tex. Admin. Code §217.20(g)(2) for not engaging in the conduct or assignment awaiting a nursing peerdetermination;
  5. 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
  6. the nurse’s name, title, and relationship to the supervisor making the assignment or request.

Remember, you are not required to use the forms provided by the BON; however, your request must be written and include the minimum information outlined in Tex. Admin. Code §217.20(d). The forms provided by the BON are meant to be a helpful resource to ensure you include all of the necessary information in your request. Please do not submit any safe harbor request forms to the Board. Please submit your request forms to your nursing supervisor requesting the conduct/making the assignment.

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If a nurse invokes safe harbor and the supervisor subsequently is able to remedy the situation that caused the nurse to invoke safe harbor (such as obtaining more staff), is the nurse’s request for safe harbor invalid? Does the nurse have to withdraw his/her request for a nursing peer review committee to evaluate the nurse's request?

The nurse's request for safe harbor nursing peer review does not become invalid and the nurse does not have to withdraw his/her request for safe harbor when a supervisor is able to respond with adequate staff, equipment or other resources. It is the nurse's decision whether or not he/she wishes to have a nursing peer review of the situation.

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When can a nurse invoke safe harbor and refuse the assignment? [Tex. Occ. Code §301.352; Tex. Admin. Code §217.20(g)]

Tex. Occ. Code §301.352, permits a nurse to refuse an assignment/refuse to engage in an act or omission relating to patient care when the nurse believes in good faith that the requested conduct or assignment could constitute grounds for reporting the nurse to the Board under Tex. Occ. Code §301, Subchapter I, could constitute a minor incident, or could constitute a violation of the NPA or Board rules if the nurse notifies the person at the time of the refusal that the reason he/she is refusing the act or omission constitutes grounds for reporting the nurse to the Board OR is a violation of the NPA or a Board rule. Situations involving potential risk of harm to patients or the public are referred to as “violating the nurse’s duty to the patient” because all nurses have a duty under Tex. Admin. Code §217.11(1)(B) to maintain a safe environment for patients/clients and others for whom the nurse isresponsible.

Tex. Admin. Code §217.20(g) clarifies that a nurse invoking safe harbor may engage in the assignment or requested conduct pending nursing peer review determination unless the requested assignment or conduct is one that:

  1. would constitute criminal conduct such as fraud, theft, patient abuse, exploitation, orfalsification;
  2. would constitute unprofessional conduct (outlined in Tex. Admin. Code §217.12); or
  3. the nurse lacks the basic knowledge, skills, and abilities that would be necessary to render thecare or engage in the conduct requested or assigned at a minimally competent level such thatengaging the requested conduct or assignment would expose one or more patients to anunjustifiable risk of harm.

A request to falsify a patient record is an example of conduct that a nurse should refuse to engage in while awaiting a nursing peer review committee determination, since there is no legal or factual basis that would support a nurse falsifying a patient record. A request to accept an assignment when a nurse believes the nurse staffing levels are unsafe would be conduct a nurse normally would engage in pending nursing peer review’s determination since the supervisor normally would have some reasonable legal or factual basis to support her/his belief that the requested assignment does not violate a nurse’s duty to a patient, even if nursing peer review ultimately determines otherwise. While Tex. Admin. Code §217.11(1)(B) establishes the nurse’s duty to maintain patient safety, Tex.Admin. Code §217.11(1)(T) requires each nurse to “accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse’s educational preparation, experience, knowledge, and physical and emotional ability.” The BON urges each nurse to consider their duty to the patient(s) as the highest priority when making any determination to accept or refuse an assignment or requested conduct. The ability to invoke safe harbor protections and to have a safe harbor nursing peer review committee evaluate the requested assignment are the same whether the nurse accepts or refuses the assignment in good faith.

Tex. Admin. Code §217.20(g)(2) requires the nurse and supervisor to collaborate in an effort to identify an acceptable assignment that “is within the nurse’s scope and enhances the delivery of safe patient care” if the nurse refuses to engage in the conduct or assignment because it is beyond the nurse’s scope of practice. A collaborative effort with patient safety as the focus will require the nurse and supervisor to explore additional options that are safer for both the patient(s) and the nurse(s).

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Does safe harbor protect a nurse from civil or criminal liability? [Tex. Occ. Code §303.005(h); Tex. Admin. Code §§217.20(e)(4) & (I)(4)]

Invoking safe harbor has no effect on a nurse’s civil or criminal liability for their nursing practice. The BON does not have authority over civil or criminal liability issues. Safe harbor does protect a nurse invoking safe harbor in good faith from retaliation by an employer or contracted entity for which the nurse performs nursing services. There is no expiration of the protection against retaliatory actions such as demotion, forced change of shifts, pay cut, or other retaliatory actions against the nurse.

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When can an informal workgroup of the nursing peer review committee be utilized?

An informal workgroup of the nursing peer review committee may be used in either safe harbor or incident-based nursing peer review. The nurse involved in either type of nursing peer review must agree to the use of the informal workgroup. The nurse does not give up his/her right to review by the full nursing peer review committee because they initially agree to the informal review process utilizing a workgroup of the nursing peer review committee. As stated in Tex. Admin. Code §§217.19(e) and 217.20(k), the workgroup must be made up of members of the nursing peer review committee, and must follow the same time lines, due process steps, and other procedures that apply to the full nursing peer review committee. Additionally, there must be written policies for the workgroup that specifically address requirements set out in Tex. Admin. Code §§217.19(e) and 217.20(k).
The nursing peer review rules do not address use of an informal workgroup when a nurse is terminated for practice related reasons. When a report to the BON is mandated under Tex. Occ. Code §301.405(b), nursing peer review is conducted solely to look for the existence of external factors that may have impacted the nurse’s actions. Since neither the statute nor Board rules specifically allow or prohibit the use of the informal workgroup for this purpose, facility policy and procedure on nursing peer review would need to address this as an option for nursing peer review under Tex. Occ. Code §301.405(c).

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Can the CNO/Nurse Administrator change the recommendations made by the safe harbor nursing peer review committee? [Tex. Occ. Code §303.005(d); Tex. Admin. Code §217.20(j)(4)]

Tex. Occ. Code §303.005(d) requires the employer/nurse manager to consider the decision of the safe harbor nursing peer review committee ‘in any decision to discipline the nurse’ if the nurse refused to engage in the requested conduct/refused the assignment pending the nursing peer review. However, the “non-binding” provision in this statute means that if the CNO/Nurse Administrator believes the safe harbor nursing peer review was conducted in “bad faith,” or the committee otherwise made an incorrect determination of the nurse’s duty, the committee’s decision is non-binding. The CNO/Administrator must document his/her rationale for disagreeing with the committee’s determination, and this must be retained with the nursing peer review records. In addition, if the CNO/Nurse Administrator believes the nursing peer review was conducted in bad faith, he/she has a duty to report the nurses who participated on the nursing peer review committee to the BON [see Tex. Admin. Code §217.20(j)(4)(C)].

The BON encourages CNOs/Nurse Administrators to remember that each nurse has a duty to advocate for patient/client safety. This is expressed in Tex. Admin. Code §217.11(1)(B) and explained in Position Statement 15.14 Duty of a Nurse in Any Practice Setting.

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If you have additional questions regarding Peer Review, see Nursing Peer Review (TOC) Chapter 303 and BON Rules 217.19 and 217.20.

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Updated May 20, 2018


For more information on these and other topics, use the search field at the top right corner of the page. Should you have further questions or are in need of clarification, please feel free to contact the Board.