1. (a) Purpose. The Board believes protection of the public is not enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act. This is particularly true 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 judgment, knowledge, training, or skill. This rule is intended to clarify what constitutes a minor incident and when a minor incident need not be reported to the board.
2. (b) Definition and Scope. A "minor incident" is defined by Texas Occupations Code §301.419(a) as "conduct that does not indicate that the continuing practice of nursing by an affected nurse poses a risk of harm to the client or other person."

3. (c) Exclusions. The following conduct shall not be deemed a minor incident under any circumstance:

   1. (1) An error that contributed to a patient's death or serious harm.
   2. (2) Criminal Conduct defined in Texas Occupations Code §301.4535.
   3. (3) A serious violation of the board's Unprofessional Conduct Rule (22 TAC §217.12) involving intentional or unethical conduct such as fraud, theft, patient abuse or patient exploitation.

4. (d) Criteria for Determining if Minor Incident is Board-Reportable.

   1. (1) A nurse involved in a minor incident need not be reported to the Board unless the conduct:

      1. (A) creates a significant risk of physical, emotional or financial harm to the client;
      2. (B) indicates the nurse lacks a conscientious approach to or accountability for his/her practice;
      3. (C) indicates the nurse lacks the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or
      4. (D) indicates a pattern of multiple minor incidents demonstrating that the nurse's continued practice would pose a risk of harm to clients or others.

   2. (2) Evaluation of Multiple Incidents.

      1. (A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.
      2. (B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse shall be reported to peer review 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 shall be reported to the Board.
      3. (C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm, the nurse should be reported to the Board or Peer Review Committee.

5. (e) Special Considerations in Evaluating Incidents. In evaluating whether a nurse's conduct constitutes a minor incident or should be reported to the Board, the following should be considered:

   1. (1) If an incident is primarily the result of factors beyond the nurse's control and addressing those factors is more likely to prevent the incident from reoccurring, a presumption should exist that the incident is a non-reportable minor incident.
   2. (2) Multiple factors may contribute to medication errors. For the purposes of this rule, a medication error should be evaluated to determine whether the error resulted from failure of the nurse to exercise proper clinical judgment or if there were other extraneous factors that were the primary cause of the error. Board Position Statement 15.17 provides guidelines for evaluating medication errors.

6. (f) Documentation of Minor Incidents. A minor incident should be documented as follows:

   1. (1) a report shall be prepared and maintained for 12 months that contains a complete description of the incident, patient record number, witnesses, nurse involved and the action taken to correct or remedy the problem;
   2. (2) if a medication error is attributable or assigned to the nurse as a minor incident, the record of that incident should indicate why the error is being attributed or assigned to the nurse.

7. (g) Nursing Peer Review Committee.

   1. (1) A peer review committee receiving a report involving a minor incident or incidents shall review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continuing to practice poses a risk of harm to clients or other persons and whether remediation would be reasonably expected to adequately mitigate such risk if it exists. The committee shall consider the special considerations set out in subsection (d) of this section.
   2. (2) Regardless of the number of incidents, the facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee. Peer review of minor incidents under this Rule may be conducted by a special workgroup of the nursing peer review committee. The workgroup may conduct its review using an informal process as long as the nurse has opportunity to meet with the workgroup and provided the nurse is given an opportunity to be peer reviewed in accordance with §217.19 of this title (relating to Incident-Based Nursing Peer Review) prior to any report being made to the Board.
   3. (3) If the peer review committee determines either that the nurse's continuing to practice does not pose a risk of harm to clients or other persons or that remediation could reasonably be expected to adequately mitigate any such risk, the committee need not report the nurse to the Board provided any remediation is successfully completed.
8. (h) A Right to Report. Nurses and other persons are encouraged not to report minor incidents to the Board unless required to do so by this rule, but nothing in this rule is intended to prevent reporting of a potential violation directly to the Board.
9. (i) Bad Faith Determination. Intentionally misclassifying an incident in bad faith to avoid reporting may result in violation of the mandatory reporting statute.
10. (j) Chief Nursing Officer's Responsibility. The chief nursing officer shall be responsible for taking reasonable steps to assure that minor incidents are handled in compliance with this rule.

Source Note:The provisions of this §217.16 adopted to be effective September 1, 1999, 24 TexReg 4001; amended to be effective February 19, 2003, 28 TexReg 1378; amended to be effective July 5, 2004, 29 TexReg 6296; amended to be effective May 17, 2006, 31 TexReg 3873.