SECTION 217.20. Safe Harbor 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 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.

(b) Purpose. The purpose of this rule is to:

(1) define the process for invoking safe harbor;

(2) define minimum due process to which a nurse is entitled under safe harbor nursing peer review;

(3) provide guidance to facilities, agencies, employers of nurses, or anyone who utilizes the services of nurses in the development and application of nursing peer review plans;

(4) assure that nurses have knowledge of the plan as well as their right to invoke safe harbor; and

(5) provide guidance to the nursing peer review committee in making its determination of the nurse's duty to the patient.

(c) Applicability of Safe Harbor Nursing Peer Review.

(1) 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 permit a nurse to request safe harbor nursing peer review when the nurse is requested or assigned to engage in conduct that the nurse believes is in violation of his/her duty to a patient.

(2) Any person or entity that conducts safe harbor nursing peer review is required to comply with the requirements of this rule.

(d) Invoking Safe Harbor.

(1) Safe harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times:

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

(B) when changes occur in the request or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned that a nurse believes in good faith that patient harm may result; or

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

(2) Notification Requirements.

(A) 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 described in paragraph (3) of this subsection. 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. A detailed written account of the safe harbor request that meets the requirements of the Comprehensive Written Request for Safe Harbor Nursing Peer Review described in paragraph (4) of this subsection must be completed before leaving the work setting at the end of the work period.

(B) After receiving oral notification of a request, the nurse's supervisor must record in writing the requirements described in paragraph (3) of this subsection, which must be signed and attested to by the requesting nurse and the nurse's supervisor who prepared the written record.

(3) Safe Harbor Quick Request. The BON Safe Harbor Quick Request Form may be used to initially invoke safe harbor, but use of the form is not required. The initial request may be in any written format, but must include the following information:

(A) the name of the nurse making the request and his/her signature;

(B) the date and time of the request;

(C) the location where the conduct or assignment that is the subject of the request occurred;

(D) the name of the person who requested the nurse engage in the conduct or made the assignment that is the subject of the request;

(E) the name of the supervisor recording the request, if applicable;

(F) a brief explanation of why the nurse is requesting a nursing peer review committee determination; and

(G) a description of the collaboration between the nurse and the supervisor, if applicable.

(4) Comprehensive Written Request for Safe Harbor Nursing Peer Review.

(A) A nurse who invokes safe harbor must supplement the initial written request under paragraph (2) of this subsection by submitting a comprehensive request in writing before leaving the work setting at the end of the work period. This comprehensive written request must include the following information:

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

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

(iii) a detailed description of how the requested conduct or assignment would have violated the nurse's duty to a patient or any other provision of the NPA and Board Rules. If possible, reference the specific standard (§217.11 of this title) or other section of the NPA and/or Board rules the nurse believes would have been violated.

(iv) 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 subsection (g)(2) of this section for not engaging in the conduct or assignment awaiting a nursing peer review determination.

(v) 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

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

(B) The BON Comprehensive Written Request for Safe Harbor Nursing Peer Review Form may be used when submitting the detailed request for safe harbor, but use of the form is not required. The request may be in any written format provided the information specified in subparagraph (A) of this paragraph is included.

(5) The nurse invoking safe harbor is responsible for keeping a copy of the request for safe harbor.

(6) A nurse may invoke safe harbor to question the medical reasonableness of a physician's order in accordance with TOC §303.005(e) (NPR Law). In this situation, the medical staff or medical director shall determine whether the order was reasonable.

(e) Safe Harbor Protections.

(1) To activate protections outlined in TOC §303.005(c) and paragraph (2) of this subsection, the nurse shall:

(A) invoke safe harbor in good faith;

(B) notify the supervisor that he/she intends to invoke safe harbor in accordance with subsection (d) of this section. This must be done prior to engaging in the conduct or assignment for which safe harbor is requested and at any of the following times:

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

(ii) when changes occur in the request or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned that a nurse believes in good faith that patient harm may result; or

(iii) when the nurse refuses to engage in the requested conduct or assignment.

(2) TOC §303.005(c) and (h) (NPR Law) and §301.352 provide the following protections:

(A) A nurse may not be suspended, terminated, or otherwise disciplined, retaliated, or discriminated against for requesting safe harbor in good faith.

(B) A nurse or other person may not be suspended, terminated, or otherwise disciplined, retaliated, or discriminated against for advising a nurse in good faith of the nurse's right to request a determination, or of the procedures for requesting a determination.

(C) A nurse is not subject to being reported to the Board and may not be disciplined by the Board for engaging in the conduct awaiting the determination of the nursing peer review committee as permitted by subsection (g) of this section. A nurse's protections from disciplinary action by the Board for engaging in the conduct or assignment awaiting nursing peer review determination remain in place for 48 hours after the nurse is advised of the nursing peer review committee's determination. This time limitation does not affect the nurse's protections from retaliation by the facility, agency, entity or employer under TOC §303.005(h)(NPR Law) for requesting safe harbor.

(3) If retaliation occurs, TOC §301.413 (NPA) provides a nurse the right to file civil suit to recover damages. The nurse may also file a complaint with the appropriate regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.

(4) Safe harbor protections do not apply to any civil action for patient injury that may result from the nurse's practice.

(f) Exclusions to Safe Harbor Protections.

(1) A nurse's protections from disciplinary action by the Board under subsection (e)(2) of this section do not apply to:

(A) the nurse who invokes safe harbor in bad faith;

(B) conduct the nurse engages in prior to the request for safe harbor; or

(C) conduct unrelated to the reason for which the nurse requested safe harbor.

(2) If the nursing peer review committee determines that a nurse has engaged in conduct subject to reporting that is not related to the request for safe harbor, the committee must comply with the requirements of §217.19 of this title.

(g) Nurse's Right to Refuse to Engage in Certain Conduct Pending Nursing Safe Harbor Nursing Peer Review Determination.

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

(A) the nurse lacks the basic knowledge, skills, and abilities that would be necessary to render the care or engage in the conduct requested or assigned at a minimally competent level such that engaging in the requested conduct or assignment would expose one or more patients to an unjustifiable risk of harm; or

(B) the requested conduct or assignment would constitute unprofessional conduct and/or criminal conduct such as fraud, theft, patient abuse, exploitation, or falsification.

(2) If a nurse refuses to engage in the conduct or assignment because it is beyond the nurse's scope as described under paragraph (1)(A) of this subsection:

(A) the nurse and supervisor must collaborate in an attempt to identify an acceptable assignment that is within the nurse's scope and enhances the delivery of safe patient care; and

(B) the results of this collaborative effort must be documented in writing and maintained in nursing peer review records by the chair of the nursing peer review committee.

(h) Minimum Due Process.

(1) A person or entity required by TOC §303.005(i) to provide nursing peer review shall adopt and implement a policy to inform nurses of their right to request a nursing peer review committee determination (safe harbor nursing peer review) and the procedure for making a request.

(2) In order to meet the minimum due process required by TOC Chapter 303, the nursing peer review committee shall:

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

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

(C) limit attendance at the safe harbor nursing peer review hearing by a CNO, nurse administrator, or other individual with administrative authority over the nurse, including the individual who requested the conduct or made the assignment, to appearing before the safe harbor nursing peer review committee to speak as a fact witness; and

(D) Permit the nurse requesting safe harbor to:

(i) appear before the committee;

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

(iii) make a verbal and/or written statement to explain why he or she believes the requested conduct or assignment would have violated a nurse's duty to a patient.

(i) Safe Harbor Timelines.

(1) The safe harbor nursing peer review committee shall complete its review and notify the CNO or nurse administrator within 14 calendar days of when the nurse requested safe harbor.

(2) Within 48 hours of receiving the committee's determination, the CNO or nurse administrator shall review these findings and notify the nurse requesting safe harbor of both the committee's determination and whether the administrator believes in good faith that the committee's findings are correct or incorrect.

(3) The nurse's protection from disciplinary action by the Board for engaging in the conduct or assignment awaiting nursing peer review determination expires 48 hours after the nurse is advised of the nursing peer review committee's determination. The expiration of this protection does not affect the nurse's protections from retaliation by the facility, agency, entity or employer under TOC §303.005(h) for requesting safe harbor.

(j) General Provisions.

(1) The Chief Nursing Officer (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 nursing peer review is implemented and conducted in compliance with the NPA and the NPR law.

(2) Safe harbor nursing peer review must be conducted in good faith. A nurse who knowingly participates in nursing peer review in bad faith is subject to disciplinary action by the Board.

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

(4) If a nurse requests a safe harbor nursing peer review determination under TOC §303.005(b) and refuses to engage in the requested conduct or assignment pending the safe harbor nursing peer review, the determinations of the committee are not binding if the CNO or nurse administrator believes in good faith that the committee has incorrectly determined a nurse's duty.

(A) In accordance with TOC §303.005(d), the determination of the safe harbor nursing 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.

(B) If the CNO or nurse administrator in good faith disagrees with the committee's determination, the rationale for disagreeing must be recorded and retained with the nursing peer review records.

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

(D) This section does not affect the protections under TOC §303.005(c)(1) and §301.352 relating to a nurse's protection from disciplinary action or discrimination for making a request for safe harbor nursing peer review.

(k) Use of Informal WorkGroup In Safe Harbor Nursing Peer Review. A facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee provided that the final determination of the nurse's duty complies with the time lines set out in this rule and there are written policies for the informal workgroup that require:

(1) the nurse to:

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

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

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

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

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

(5) ratification by the safe harbor nursing peer review 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 review the conduct in question; and

(6) the nursing peer review chairperson communicate any decision of the informal workgroup to the CNO or nurse administrator.

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

(1) This subsection does not expand the authority of any safe harbor 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, 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 section or advises a nurse of the nurse's rights and obligations under this section. A violation of this subsection is subject to TOC §301.413 that provides a nurse the right to file 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.

Source Note: The provisions of this §217.20 adopted to be effective May 11, 2008, 33 TexReg 3633; amended to be effective July 29, 2008, 33 TexReg 5930; amended to be effective January 9, 2012, 37 TexReg 62; amended to be effective April 26, 2018, 43 TexReg 2419; amended to be effective October 22, 2019, 44 TexReg 6031