Texas Register, Volume 37, Number 1, Pages 1-84, January 6, 2012 Page: 62
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PART 11. TEXAS BOARD OF NURSING
CHAPTER 217. LICENSURE, PEER
ASSISTANCE AND PRACTICE
22 TAC 217.19, 217.20
Introduction. The Texas Board of Nursing (Board) adopts
amendments to 217.19, relating to Incident-Based Nursing
Peer Review and Whistleblower Protections; and 217.20, re-
lating to Safe Harbor Peer Review for Nurses and Whistleblower
Protections, without changes to the proposed text as published
in the November 18, 2011, issue of the Texas Register (36
TexReg 7749) and will not be republished.
Reasoned Justification. The amendments are adopted under
the authority of the Occupations Code 301.352, 301.401,
301.4011, 301.402, 301.4025, 301.412, 301.413, 303.001,
303.005, and 301.151 and are necessary to implement the
requirements of Senate Bill (SB) 192, enacted by the 82nd
Legislature, Regular Session, effective September 1, 2011.
SB 192 was enacted to improve the quality of patient care in this
state by enhancing protections for nurses who report substan-
dard and dangerous nursing practices to the Board or refuse
to accept assignments that may endanger patients. (See Bill
Analysis, Enrolled Version, August 4, 2011). Although patient
advocacy protections currently exist in the Nursing Practice Act
(NPA), SB 192 enhances these protections by: (i) extending non-
retaliation protections to individuals who advise nurses about
their right to engage in protected patient advocacy activities, (ii)
extending nurse liability immunity to include immunity from crimi-
nal prosecution and liability when making a protected report; and
(iii) deterring retaliation against nurses for engaging in protected
patient advocacy activities.
The existing patient advocacy protections for nurses are primar-
ily located in Chapter 301, Subchapter I, and Chapter 303 of the
Occupations Code. Under these provisions, nurses, along with
several other types of entities, are required to report to the Board
substandard nursing care, a nurse's suspected impairment or
substance abuse, patient abuse, patient exploitation, and con-
duct that poses a risk of harm to patients. These provisions also
provide nurses who report such conduct protection from civil li-
ability and other discriminatory action. Further, 301.352 of the
Occupations Code provides nurses the right to refuse to engage
in conduct that might violate the minimum standards of nurs-
ing practice, a provision of the NPA, or a Board rule. Section
301.352 also provides nurses who refuse to engage in such con-
duct protection from discriminatory action. Finally, Chapter 303
affords nurses the opportunity to request a peer review determi-
nation if they refuse to engage in conduct that might result in a
risk of harm to a patient (herein collectively referred to as 'safe
harbor').
In addition to the protections provided by the NPA, the Board has
adopted extensive rules that define the process for invoking safe
harbor; establish the minimum amount of due process a nurse
is entitled to when requesting safe harbor peer review; provide
guidance to facilities, agencies, and nursing employers in the
development and application of peer review plans; and reiter-
ate the protections provided by the NPA to nurses who invoke
safe harbor or who file mandatory reports with the Board. Al-
though these protections are designed to protect nurses who re-
port substandard and dangerous nursing practices to the Board,
nurses still face discrimination and employer retaliation for re-
porting such conduct. In order to encourage nurses to continueto advocate for the safety of their patients by reporting substan-
dard and dangerous nursing practices to the Board and refusing
to accept assignments that may result in harm to their patients,
SB 192 expands the statutory protections afforded to nurses by
the NPA and prohibits retaliation against nurses for reporting, in
good faith, substandard and dangerous nursing practices and
invoking safe harbor. The adopted amendments to 217.19 and
217.20 are necessary to implement the additional protections
afforded by SB 192.
The Board's existing rules already extensively address the pro-
tections afforded by the NPA for nurses who file mandatory re-
ports with the Board or invoke safe harbor. As such, few changes
are necessary to implement the additional protections afforded
by SB 192. While few in number, the adopted changes are sig-
nificant, as they strengthen the patient advocacy protections af-
forded by the NPA and encourage nurses to continue to advocate
for the safety of their patients.
First, the adopted amendments define "peer review" in 217.19
and 217.20 to include information, advice, and assistance
given to nurses and other persons regarding the rights and
obligations of, and protections afforded to, nurses who file
mandatory reports with the Board, request peer review, or raise
concerns about patient safety. These adopted amendments
are necessary for consistency with the additional protections
afforded by SB 192. Second, the adopted amendments define
"safe harbor" in 217.19 and 217.20 to include protection from
employer suspension, termination, discipline, and discrimination
for nurses who, in good faith, request safe harbor peer review.
These amendments are also necessary for consistency with the
additional protections afforded by SB 192. Third, the adopted
amendments replace the term "without malice" with the term "in
good faith" throughout both sections for consistency with the
provisions of SB 192. Finally, the adopted amendments clarify
that nurses or other persons who provide advice about a nurse's
rights, obligations, and protections associated with mandatory
reporting and invoking safe harbor are protected from discipline,
retaliation, suspension, termination, and discrimination. This
adopted change is also necessary for consistency with the
provisions of SB 192.
How the Sections Will Function. Adopted 217.19(a)(14) defines
"peer review" as the evaluation of nursing services, the quali-
fications 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 com-
plaint. The term also includes the provision of information, ad-
vice, 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 peer review,
and the resolution of workplace and practice questions relating
to nursing and patient care. Further, the 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 rele-
vant information about an event. Peer review conducted by any
entity must comply with nursing peer review law and with appli-
cable Board rules related to incident-based or safe harbor peer
review.
Adopted 217.19(a)(15) defines "safe harbor" as a process that
protects a nurse from employer retaliation, suspension, termi-
nation, discipline, discrimination, and licensure sanction when a
nurse makes a good faith request for peer review of an assign-
ment or conduct the nurse is requested to perform and that the
nurse believes could result in a violation of the NPA or Board37 TexReg 62 January 6, 2012
Texas Register
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Texas. Secretary of State. Texas Register, Volume 37, Number 1, Pages 1-84, January 6, 2012, periodical, January 6, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth215965/m1/61/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.