BY Mary M. Bearden and Allison Shelton, Brown & Fortunato, P.C.
Nurses and the practice of nursing are the focus of this month’s issue of the Houston Medical Journal. Nurses and hospitals often seek legal guidance on the statutory and regulatory provisions regarding peer review proceedings and the duty to report a nurse’s conduct to the Texas Board of Nursing (BON).
The Nursing Practice Act (NPA) provides for two types of peer review proceedings: safe harbor peer review and incident-based peer review. Safe harbor peer review enables a nurse to request guidance from a nursing peer review committee prior to engaging in an assignment the nurse believes may violate the NPA or the nurse’s duty to a patient. Incidentbased peer review occurs when a hospital receives a complaint regarding a nurse’s conduct or the hospital has concerns about a nurse’s qualifications or the quality of patient care rendered by the nurse. During incident-based peer review, a nursing peer review committee must determine whether a nurse’s conduct should be reported to the BON and whether external factors beyond the nurse’s control should be reported to the patient safety committee because they contributed to the incident.
The statutory and regulatory procedures governing incident-based peer review are the focus of this legal affairs column. Under the hospital licensing rules, the Texas Department of State Health Services (DSHS) requires hospitals to implement a program for incident-based peer review and compliance with the reporting requirements established by the BON. A hospital’s program for incident-based peer review should provide certain due process rights to nurses under review. Such due process rights are required by the NPA and BON Rule 217.19.
To meet the due process requirements, a nursing peer review committee must take certain steps before, during, and after the meeting in which a nurse’s conduct will be reviewed. At least 21 days, but no more than 45 days, before the peer review meeting, the committee must provide to the nurse written notice indicating the date and time of the meeting; a description of the facts surrounding the incident under review; the name, address, and telephone number of a contact person; a copy of BON Rule 217.19; and a copy of the hospital’s policy c o n c e r n i n g incident-based peer review. Fifteen days before the meeting, the committee must provide the nurse or the nurse’s attorney the opportunity to review d o c u m e n t s concerning the incident under review.
If the peer review committee will have an attorney present, then the committee must inform the nurse of this fact at least seven days before the peer review meeting. The nurse has the statutory right to have an attorney present at the meeting. In its written policy, the hospital should define the permitted roles of attorneys who attend nursing peer review meetings. The hospital must ensure that the level of participation granted to a nurse’s attorney is the same as that granted to the hospital’s counsel. At a minimum, attorneys must be able to confer with and advise their clients during the meeting.
As part of the due process afforded to nurses, the BON rules establish membership and voting requirements for nursing peer review committees. At least three-fourths of the members on a nursing peer review committee must be nurses. When the nurse under review is a registered nurse (RN), then two-thirds of the members must be RNs, and only RNs may vote on the issue before the committee. When the nurse under review is a licensed vocational nurse (LVN), then both RNs and LVNs serving on the committee may vote. Administrators with authority to make personnel decisions concerning the nurse must be excluded from the peer review meeting. Such administrators may serve as fact witnesses, however. At least two days before the meeting, the peer review committee must provide the nurse with a list of witnesses who will testify at the meeting and copies of any evidence or written testimony that will be reviewed.
Before and/or during the meeting, the nursing peer review committee must provide the nurse an opportunity to submit a written statement to the committee. During the meeting, the nurse has the right to make an opening and closing statement, call and question witnesses, ask questions of the committee, respond to questions from the committee, and attend the presentation of evidence and testimony. After the meeting, the committee should reach a decision within fourteen days and notify the nurse of the decision in writing. The nurse has the right to submit a rebuttal statement to be included in the peer review record. If the committee determines that the conduct is reportable, then the committee should submit a written report to the BON.
According to the NPA, a nurse must be reported when the nurse engages in conduct that (1) violates the NPA or a BON rule “and contributed to the death or serious injury of a patient”; (2) “causes a person to suspect that the nurse’s practice is impaired by chemical dependency or drug or alcohol abuse”; (3) “constitutes abuse, exploitation, fraud, or a violation of professional boundaries”; or (4) “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.”
In some cases, conduct that violates the NPA or BON rules should not be reported because the nurse’s continued practice does not pose a risk of harm to patients or other individuals. Such conduct is defined as a “minor incident.” Nevertheless, even a minor incident is reportable if it (1) created a significant risk of emotional, physical, or financial harm to a patient; (2) indicates that the nurse lacks accountability or a conscientious approach to the nursing practice; (3) indicates a deficiency in knowledge or competencies related to the practice of nursing and the deficiency is not easily remediated; or (4) reveals a pattern of minor incidents.
Notably, if a hospital, as a nurse’s employer, terminates or suspends the nurse for more than seven days or takes other “substantially equivalent” disciplinary action because of nursing practice errors or concerns, then the hospital must report the action to the BON. Under such circumstances, the due process requirements discussed in this article will not apply. When the peer review committee convenes, the committee will only assess whether external factors contributed to the incident.
DSHS may take action against a hospital’s license when a hospital fails to meet the reporting requirements established by the BON. Likewise, the BON can take action against a nurse’s license if the nurse is aware of and fails to report conduct that is reportable under the NPA. To facilitate reporting, the NPA affords immunity from civil and criminal liability to any peer review committee, nurse, or hospital that reports to the BON in good faith. Furthermore, such immunity is extended to any person who advises a nurse of the nurse’s obligation or right to report.
As required under the licensing regulations, hospitals must adopt policies and procedures for incident-based peer review. The policy should clearly communicate procedures that will ensure a nurse’s statutory and regulatory due process rights. Hospitals should avoid drafting a policy that simply quotes BON Rule 217.19. Such policies tend to be lengthy, unclear, and useless. Instead, hospitals should draft the policy to provide clear steps for the committee to follow during the peer review process. In addition to procedures that guarantee due process, other useful provisions for policies include provisions addressing:
1. the number of LVNs and RNs who will serve on the committee;
2. the appointment process for members;
3. the length of a member’s term of service on the committee;
4. the duty to submit reports to the committee;
5. the role of attorneys; and
6. the rules of procedure that will govern incident-based peer review meetings.