Peer review is the evaluation of nursing services, the qualifications of a nurse, the quality of patient care rendered by nurses, the merits of a complaint concerning a nurse or nursing care, and a determination or recommendation regarding a complaint including:
A Peer Review Committee may review the nursing practice of a LVN, RN, or APRN (RN with advanced practice authorization). 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 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.
INCIDENT-BASED NURSING PEER REVIEW
Due Process rights for Incident-Based Peer Review (IBPR) [ Rule 217.19(d)]
Review of NPR Chapter 303 in its entirety is recommended, as compliance with various sections of this chapter is necessary to assure compliance with “due process” and “good faith” peer review requirements. Rule 217.19(d) delineates specific requirements for minimum due process during IBPR. Committee membership and voting requirements are described in NPR §303.003(a)-(d); §303.0015, and §217.19(c) and (d)(3)(B).
The nurse being peer reviewed must receive notification of the peer review process as well as other components that are part of the nurse’s minimum due process rights under §217.19(d) including:
- that his/her practice is being evaluated by the nursing peer review committee,
- that the peer review committee will meet on a specified date not less than 21, but not more than 45 calendar days from the date of notice,
- a copy of the peer review plan, policies and procedures.
- the notice must include:
- a description of the event(s) to be evaluated in enough detail to inform the nurse of the incident, circumstances and conduct, and should include date(s), time(s), location(s), and individual(s) involved. Any patient or client information shall be identified by initials or number to protect confidentiality, but the nurse shall be provided the name of the patient.
- the name, address and telephone number of the contact person to receive the nurse’s response (typically the peer review chairperson).
- the nurse is provided the opportunity to review, in person or by attorney, at least 15 calendar days prior to appearing before the committee, documents concerning the event under review.
- the nurse is provided the opportunity to appear before the committee, make a verbal statement, ask questions and respond to questions of the committee and provide a written statement regarding the event under review.
- the nurse shall have the opportunity to:
- 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 48 hours in advance of the 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 it’s evaluation within 14 calendar days from the date of the peer review hearing.
- within 10 calendar days of completion of the peer review hearing, the peer review committee must notify the nurse in writing of it’s determination.
- the nurse shall be given an opportunity, within 10 calendar days, to provide a written rebuttal to the committee’s findings which shall become a permanent part of the peer review records.
Disciplinary action prior to conducting Incident-Based Peer Review [ NPA 301.405(e)]
Employment and licensure issues are separate. An employer may take disciplinary action before review by the peer review committee is conducted, as peer review cannot determine issues related to employment. The role of peer review 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 already required under 301.405(c), then the role of the peer review committee is to investigate whether external factors impacted the error or situation, and to report their findings to a patient safety committee if they determine there were external factors that mitigate or aggravate the circumstances impacting the nurse’s actions.
Duty to report by employer [Section 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, not licensure, issue and is not board-reportable.
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, the employer must report to the Board (BON) in writing:
- the identity of the nurse;
- the conduct subject to reporting that resulted in the termination, suspension or other substantive disciplinary action or substantially equivalent action; and
- any additional information the board requires.
Due process rights under peer review for nurses who voluntarily resign or is involuntarily terminated [NPA §301.405(c) and Rule 217.19(f)(1)]
SB993 (80th Legis. Session, 2007) amended NPA ( TOC) §301.405(c) requiring that even if a mandatory report by the employer has been, or will be, made to the BON under §301.405(b), the 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 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 now required to also report the issue to the entity’s patient safety committee, 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 existence of external factors, due process rights of incident-based peer review do not apply. In addition, a peer review committee cannot make a determination that would negate the duty of the employer to report the nurse under §301.405(b) or of the CNO/nurse administrator to report the nurse under §301.402(b).
Recommendations by IBPR Committee be followed by the employer
The nursing peer review committee does not have authority to make employment or disciplinary decisions. The employer must make their own decision about appropriate disciplinary actions; however, the employer may choose to utilize the decisions of the peer review committee in determining what action they wish to take with regard to the nurse’s employment. In addition, an employer may not prohibit a peer review committee from filing a report to the BON if the PRC has determined in good faith that a nurse’s practice must be reported to the Board in compliance with §301.403, Rule 217.11(1)(K), and Rule 217.19.
Minor Incidents [NPA Section 301.401(2) & Board Rule 217.16]
A “minor incident” is 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. The term is synonymous with “minor error” or ‘minor violation of the Texas Nursing Practice Act (NPA) or Board rule.’
Minor Incidents are discussed in detail in Board Rule 217.16, also known as the Board’s ‘Minor Incident Rule’. The BON believes it may not be necessary to report directly to the Board when there are mechanisms in place in the nurse's practice setting to identify nursing errors, detect patterns of practice, and take corrective action to remediate deficits in a nurse's knowledge, skill, judgment, training, professional responsibility, or patient advocacy. The purpose of the Minor Incident Rule is to provide guidance in evaluating whether nursing practice breakdown is subject to mandatory reporting requirements.
The Board encourages nurses and others NOT to report minor incidents directly to the Board unless such a report is required because the conduct ‘ignores a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm’ OR ‘meets the definition of conduct subject to reporting’. With that said, the Minor Incident Rule does not aim to prevent reporting potential violations directly to the Board or to a nursing peer review committee (NPRC).
What Conduct Cannot be Considered a Minor Incident [Board Rule 217.16(h)]
Board Rule 217.16(h) outlines that some conduct cannot be considered a minor incident and must be reported to a nursing peer review committee or to the Board. The following cannot be considered a minor incident:
(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 Board Rule 217.12 (Unprofessional Conduct) with actions that constitute abuse, exploitation, fraud, or a violation of professional boundaries; or
(5) actions that indicate 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.
How to Determine if an Error is a Minor Incident [Board Rule 217.16(d)]
In evaluating whether an error is a minor incident, a combination of factors must be reviewed:
- the nurse’s conduct,
- factors viewed to be beyond the nurse’s control, and
- the relationship between the nurse’s conduct and the factor’s beyond the nurse’s control that influenced or impacted the nursing practice breakdown.
The Board has a Flow Chart for Determining if an Error is a Minor Incident and a resource outlining individual Nurse Responsibilities when an Error Occurs.
The first step in determining whether an error is a minor incident is to evaluate the nurse’s conduct to determine whether deficit(s) in knowledge, judgment, skills, professional responsibility, or patient advocacy contributed to the incident. If it is determined that the nurse’s practice has no deficit(s) in knowledge, judgment, skills, professional responsibility, or patient advocacy, the incident may not even reach the level of a minor incident. If it is determined that the nurse’s practice deficit(s) in knowledge, judgment, skills, professional responsibility, or patient advocacy contributed to the error, then a determination of whether remediation will address any identified deficit(s) is required. If remediation will address the deficit(s), a remediation plan must be developed to address the deficit(s). If remediation will not address the deficit(s), then the error cannot be considered a minor incident and the nurse must be reported to the nursing peer review committee or, in practice settings with no nursing peer review, to the Board. (If the determination is that the nurse could be remediated but the nurse does not complete the required remediation, then the nurse must be reported to a nursing peer review committee or the Board.)
After evaluating the nurse’s conduct (acts or omissions), the presence of factors beyond the nurse’s control (sometimes called ‘systems factors’) must also be evaluated for contribution to the incident. If such factors are found, a report must be made to the patient safety committee, or if the facility does not have a patient safety committee, to the chief nursing officer.
In situations involving a nursing practice breakdown with contribution by factors beyond the nurse’s control, the relationship between the nurse’s contribution to the incident and the factors beyond the nurse’s control must be evaluated as well. If factors beyond the nurse’s control are identified, the incident should be evaluated to determine if the error would still have occurred even if such factors were absent or did not exist. If the error would not have occurred but for the factors beyond the nurse’s control, the incident may not even reach the level of a minor incident. Please be aware, the Minor Incident Rule is clear that the presence of factors beyond the nurse’s control does NOT automatically exclude the possibility that the nurse’s conduct also contributed to the error. Any identified deficits by the nurse must be addressed and remediated, even if factors beyond the nurse’s control are also identified. If remediation will not address the deficit(s), then the error cannot be considered a minor incident and must be reported to the nursing peer review committee or to the Board if there is not a nursing peer review in the practice setting.
**Intentionally mis-classifying an error/incident to avoid reporting may result in a violation of the mandatory reporting law.
Multiple Incidents [Board Rule 217.16(e)]
In determining whether multiple minor incidents constitute grounds for reporting, 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 and should be reported to the nursing peer review committee or the Board.
In practice settings with nursing peer review, the nurse must be reported to the nursing peer review committee if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12-month period must be reported directly to the Board.
Required Documentation of Minor Incidents [Board Rule 217.16(f)]
The following describes how a minor incident should be documented.
A report must be prepared, monitored, and maintained for a minimum of 12 months that contains:
(1) a complete, detailed description of the incident(s), including patient(s) medical record number(s), nurse(s) involved, witnesses and, if applicable, a summary of witness statements, and any additional relevant information;
(2) an evaluation of the incident(s);
(3) the action taken to correct or remedy the situation; and
(4) evidence of completed remediation.
CNO, Nurse Administrator/Manager/Supervisor, & NPRC Responsibilities Concerning Minor Incidents [Board Rule 217.16(g)]
The Chief Nursing Officer, Nurse Administrator, or registered nurse by any title who is responsible for nursing services must develop and implement a policy to assure that minor incidents are handled in compliance with the Minor Incident Rule (Board Rule 217.16) and any other applicable law.
The Nurse Manager, Nurse Supervisor, or registered nurse by any title who is responsible for managing and/or supervising nurses, regardless of the time frame or number of minor incidents, must report a nurse to a nursing peer review committee or, in practice settings with no nursing peer review, to the Board if he or she believes the minor incidents indicate a pattern of practice that poses a risk of harm that cannot be remediated.
The nursing peer review committee that receives a report must investigate and conduct incident-based nursing peer review in compliance with Texas Occupations Code Chapter 303 (Nursing Peer Review Law) and Board Rule 217.19.
Nursing Peer Review Committee Reporting Requirements [NPA Sections 301.401(1) and 301.403, Texas Occupations Code (NPR Law) Chapter 303, & Board Rules 217.16 and 217.19]
A nursing peer review committee (NPRC) that determines that a nurse has engaged in conduct subject to reporting must submit a written, signed complaint to the Board that includes:
(1) the identity of the nurse;
(2) a description of any corrective action taken against the nurse;
(3) a recommendation whether the Board should take formal disciplinary action against the nurse and the basis for the recommendation;
(4) a description of the conduct subject to reporting;
(5) 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
(6) any additional information the Board requires.
*A NPRC is not required to report a nurse to the Board if:
(1) the NPRC determines that the reported conduct was a minor incident that is not required to be reported under Board rule; or
(2) the nurse has already been reported to the Board by the employer for under NPA Section 301.405.
Failure to classify an event appropriately in order to avoid reporting the nurse to the Board may result in action against the nurse or nurses on the NPRC responsible for reporting, and/or the CNO who failed to report to the Board.
Peer review conduction for nurses suspected of secondary impairment (chemical dependency, drug or alcohol abuse, substance abuse/misuse, “intemperate use,”mental illness, or diminished mental capacity). [NPA §301.410 & Rule 217.19(g)]
It depends. If there is no evidence of nursing practice violations, a nurse may be reported to either the BON or to a peer assistance program [Rule 217.19(g)(1)].
However, if, during the course of an incident-based peer review process, there is evidence of nursing practice violations in conjunction with evidence of impaired nursing practice, the incident-based peer review process must be suspended, and the nurse reported to the board in accordance with NPA (TOC) §301.410(b) (relating to a required report to the board when practice errors exist with suspected or known impairment of the nurse. The BON will determine in such cases whether or not the nurse is eligible to take part in a peer assistance program.
The IBPR committee may need to re-convene for the sole purpose of determining whether or not external factors contributed to the incident(s) that lead to peer review. Remember that because the nurse’s practice is not being reviewed (only the surrounding factors), due process rights for the nurse do not apply.
Peer Review for a temporary or contract employees (NPR §303.004)
The nurse who works through a temporary agency or contractor may be subject to Peer Review by either the facility where services are provided, the compensating agency, or both. For purposes of exchange of information, the Peer Review committee reviewing the conduct is considered as established under the authority of both so that confidentiality requirements of peer review are enforceable against any nurse involved in the investigation or peer review proceeding. The two entities may choose to have a contract with respect to which entity will conduct Peer Review of the nurse.
SAFE HARBOR PEER REVIEW
Definition of Safe Harbor - [NPR §303.005(b) and (e); Rule 217.19(a)(15), Rule 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 Board Statutes or Rules. When properly invoked, safe harbor protects a nurse from employer retaliation and from licensure sanction by the BON. Safe Harbor must be invoked prior to engaging in the conduct or assignment for which 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 where the nurse believes patient harm may result [217.11(1)(B) and (T)], and can involve a request to engage in unprofessional or illegal conduct, such as falsifying medical record documents. The latter is an example of a situation where a prudent nurse would refuse to engage in the conduct requested.[NPA §301.352(a-1), Rule 217.20(g)(1)(B)]
Safe Harbor also allows for a nurse to request that a determination be made on the medical reasonableness of a physician’s order [NPR 303.005(e)]. [Note: There is now a separate form on the BON web page that can be used for this process.]
Applicable protections of nurse's license under Safe Harbor - [NPA §301.352, §301.413; NPR §303.005(c), (d), and (h),]
A nurse who in good faith requests Safe Harbor peer review:
- may not be disciplined or discriminated against for making the request;
- may engage in the requested conduct pending the peer review;
- is not subject to the reporting requirement under Subchapter I, Chapter 301; and
- may not be disciplined by the board for engaging in that conduct while the peer review is pending.
Invocation of Safe Harbor protections [Rule 217.20(d)]
Activation of Safe Harbor protections:
- At the time the nurse is requested to engage in the activity, notify the supervisor making the assignment in writing that the nurse is invoking Safe Harbor. The nurse may use the BON’s Quick Request Form (or any document that contains the minimum information required by rule), or may use any other means of recording the initial request for safe harbor in writing with at least the minimum information required under §217.20(d)(3)(i)-(v):
(A) The nurses(s) name(s) making the safe harbor request and his/her signature(s);
This written Quick Request for safe harbor may be brief, but before leaving at the end of the work period, the nurse must submit a written Comprehensive Request (detailed account) of his/her request for safe harbor. Additional supporting documents may still be supplied at a later date. Quick Request and Comprehensive Request for Safe Harbor forms are available on the BON web site. There is also a separate form for requesting a determination regarding the Medical Reasonableness of a Physician’s Order. All of these BON forms are optional and do not have to be utilized by the nurse making a written request for Safe Harbor.
(B) The date and time of the request;
(C) The location of where the conduct or assignment is to be completed;
(D) The name of the person requesting the conduct or making the assignment; and
(E) A brief explanation of why safe harbor is being requested.
Withdrawal Request of Safe Harbor Peer Review
The nurse's request for Safe Harbor Peer Review does not become invalid and the nurse does not have to withdraw his/her request for Safe Harbor just because a supervisor is able to respond with adequate staff, equipment, or whatever else was at issue with the original requested assignment. It is the nurse's choice whether or not he/she wishes to still have a nursing peer review of the situation. [See the Quick Request and Comprehensive Request for Safe Harbor forms and the Peer Review Page.
When to Invoke Safe Harbor and Refuse Nursing Assignment [NPA (TOC) §301.352, Rule 217.20(g)]
The NPA, section 301.352 permits a nurse to refuse an assignment when the nurse believes in good faith that the requested conduct or assignment could constitute grounds for reporting the nurse to the board under NPA 301.401(1), could constitute a minor incident, or could constitute another violation of the board statutes or rules. 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 Rule 217.11(1)(B) to maintain a safe environment for patients/clients and others for whom the nurse is responsible. Safe Harbor enables a nurse in most circumstances to accept the assignment, thus allowing the nurse to protect his/her nursing license from board sanctions while at the same time delivering the best care possible to a patient(s).
Patients are better off with the nurse than without the nurse in the vast majority of cases; however, Rule 217.20(g) clarifies that a nurse may engage in an assignment or requested conduct pending peer review determination unless the requested assignment or conduct is one that:
- constitutes a criminal act
- constitutes unprofessional conduct, or
- the nurse lacks the basic knowledge, skills, and abilities necessary to deliver nursing care that is safe and that meets the minimum standards of care to such an extent that accepting the assignment would expose one or more patients to an unjustifiable 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 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 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 peer review ultimately determines otherwise.
While §217.11(1)(B) establishes the nurse’s duty to maintain patient safety, standard §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.” It is also impossible in the rule-writing process to anticipate every possible situation a nurse might face in every practice setting, and where a nurse may believe in good faith that his/her duty to one or more patients is in greater jeopardy to accept the assignment than to refuse it. The BON urges each nurse to consider the duty to the patient(s) as the highest priority in make any determination to accept or refuse an assignment or requested conduct. The ability to invoke Safe Harbor protections and to have a nursing peer review committee evaluate the requested assignment are the same whether the nurse accepts or refuses the assignment.
Note that Rule 217.20(g)(2) now requires the nurse and supervisor to collaborate in an effort to identify an assignment that “is within the nurse’s scope and enhances the delivery of safe patient care.” This is based on the premise that in any staffing crisis, the patients are almost always better off with the nurse, than without the nurse. A collaborative effort with patient safety as the focus will require the nurse and supervisor to set aside any personal animosity and to explore additional options that are safer for both the patient(s) and the nurse(s).
Protection of Civil or Criminal Liability under Safe Harbor [NPR §303.005(h), 217.20(e)(2) & (3)]
Safe Harbor has no effect on a nurse’s civil or criminal liability for his/her nursing practice. The BON does not have any authority over civil or criminal liability issues. Safe Harbor does protect the nurse from retaliation by an employer or contracted entity for whom 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 action against the nurse.
Use of small workgroups for Nursing Peer Review Committee
A smaller 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 peer review must agree to the use of the smaller workgroup. The nurse does not give up his/her right to review by the full peer review committee just because they initially agree to the smaller workgroup. As stated in the rule, the workgroup must be made up of members of the 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.
The peer review rules do not address use of a smaller workgroup of peer review in the event a nurse was terminated for practice related reasons. When a report to the BON is mandated under NPA 301.405(b), 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 or board rules specifically allow or prohibit the use of the smaller workgroup for this purpose, facility policy and procedure on nursing peer review would need to address if this is an option for peer review under NPA 301.405(c).
Recommendations made by the SHPR Committee to CNO/Nurse Administrators [NPR §303.005(d); Rule 217.20(j)(4)(A)]
NPR law §303.005(d) requires the employer/nurse manager to consider the decision of the SHPR Committee “in any decision to discipline the nurse.” The “non-binding” provision in this statute means that if the CNO/Nurse Administrator believes the SHPR was conducted in “bad faith,” or otherwise made an incorrect determination, the CNO/Administrator must document his/her rationale for disagreeing with the SHPR Committee determination, and this must be retained with the SHPR records. In addition, if the CNO/Nurse Administrator believes the SHPR was done in bad faith, he/she has a duty to report the nurses who participated on the PRC to the BON [see Rule 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 Rule 217.11(1)(B) and explained in Position Statement 15.14 Duty of a Nurse in Any Setting. Another document is the BON’s Six-Step Decision-Making Model for Determining Nursing Scope of Practice and LVN Six-Step Decision-Making Model for Determining Nursing Scope of Practice. Step 3 asks if there is nursing literature, research, or guidance documents from national specialty nursing organizations related to the nursing issue in question. National patient safety organizations, such as the Institute for Safe Medication Practices, would also be applicable with regard to “best practices” in a given area of nursing and patient safety. Safe Harbor peer review can be an opportunity to take stock of how nursing and support departments surrounding nursing are organized, and how safe patient care is helped or hindered by those systems.
Where to send Safe Harbor requests
Please DO NOT mail or fax your request for Safe Harbor Nursing Peer Review to the Board of Nursing. The BON cannot conduct Peer Review-this must be done through the facility or agency where the assignment was made to you. Please review the following questions, as well as the instructions on the Comprehensive Request for Safe Harbor form.