1. (a) Minimum Due Process

   1. (1) The provisions of this subsection (a) apply:

      1. (A) to peer review for both registered nurses (RNs) and licensed vocational nurses (LVNs). Any reference to "nurse" is a reference to both RNs and LVNs. See Texas Occupations Code §303.001(1-3).
      2. (B) only to peer review conducted for purpose of evaluating if a RN or LVN has engaged in unacceptable nursing practice.
   2. (2) Texas Occupations Code §303.001(5), states, "Peer review means the evaluation of nursing services, the qualifications of nurses, the quality of patient care rendered by nurses, the merits of complaints concerning nurses and nursing care, and determinations or recommendations regarding complaints". 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 relevant information about an event. Once a decision is made that a nurse is subject to peer review, Texas Occupations Code §303.002(e) provides that the nurse is entitled to minimum due process. The purpose of rule 217.19 is to define minimum due process, to provide guidance to facilities in developing peer review plans, to assure that nurses have knowledge of the plan, and to provide guidance to the peer review committee in its fact finding process.

   3. (3) A facility conducting peer review shall have written policies and procedures that, at a minimum, address:

      1. (A) level of participation of nurse or nurse's representative at peer review proceeding beyond that required by Subsection (a)(4)(F) of these rules (e.g., nurse's or representative's ability to question witnesses);
      2. (B) confidentiality and safeguards to prevent impermissible disclosures including written agreement by all parties to abide by Texas Occupations Code §§303.006 and 303.007;
      3. (C) handling of cases involving nurses suspected of having problems with chemical dependency or mental illness in accordance with the Texas Occupations Code §301.410;
      4. (D) reporting of nurses to Board of Nurse Examiners and Board of Vocational Nurse Examiners by peer review committee in accordance with the Texas Occupations Code §301.403; and
      5. (E) effective date of changes to the policies which in no event shall apply to peer review proceedings initiated before the change was adopted unless agreed in writing by the nurse being reviewed.

   4. (4) In order to meet the minimum due process required by the Texas Occupations Code chapter 303, the Nursing Peer Review Committee must:

      1. (A) comply with the membership and voting requirements as set forth in Texas Occupations Code §303.003(a) - (d);
      2. (B) exclude from the committee any person or persons with administrative authority for personnel decisions directly relating to the nurse;
      3. (C) provide written notice to the nurse in person or by certified mail at the last known address the nurse has on file with the facility that his/her practice is being evaluated, that the peer review committee will meet on a specified date not sooner than 21 calendar days and not more than 45 calendar days from date of notice , unless otherwise agreed upon by the nurse and peer review committee. Said notice must include a written copy of the peer review plan, policies and procedures;

      4. (D) include in the written notice:

         1. (i) a description of the event(s) to be evaluated in sufficient detail to inform the nurse of the incident, circumstances and conduct (error or omission), including date(s), time(s), location(s), and individual(s) involved. The patient/client shall be identified by initials or number to the extent possible to protect confidentiality but the nurse shall be provided the name of the patient/client;
         2. (ii) name, address, telephone number of contact person to receive the nurse's response; and
         3. (iii) a copy of this rule 217.19 and a copy of the facility's peer review plan, policies and procedures.
      5. (E) provide the nurse the opportunity to review, in person or by attorney, the documents concerning the event under review, at least 15 calendar days prior to appearing before the committee;

      6. (F) provide the nurse the opportunity to:

         1. (i) submit a written statement regarding the event under review;
         2. (ii) call witnesses, question witnesses, and be present when testimony or evidence is being presented;
         3. (iii) be provided copies of the witness list and written testimony or evidence at least 48 hours in advance of proceeding;
         4. (iv) make an opening statement to the committee;
         5. (v) ask questions of the committee and respond to questions of the committee; and
         6. (vi) make a closing statement to the committee after all evidence is presented;
      7. (G) conclude its review no more than fourteen (14) calendar days from the peer review proceeding;
      8. (H) provide written notice to the nurse in person or by certified mail at the last known address the nurse has on file with the facility of the findings of the committee within ten (10) calendar days of when the committee's review has been completed; and
      9. (I) permit the nurse to file a written rebuttal statement within ten (10) calendar days of the notice of the committee's findings and make the statement a permanent part of the peer review record to be included whenever the committee's findings are disclosed.
   5. (5) Nurse's Right To Representation. A nurse shall have a right of representation as set out in this section. The rights set out in this section are minimum requirements and a facility may allow the nurse more representation. The peer review process is not a legal proceeding; therefore, rules governing legal proceedings and admissibility of evidence do not apply and the presence of attorneys is not required. The nurse has the right to be accompanied to the hearing by a nurse peer or an attorney. Representatives attending the peer review hearing must comply with the facility's peer review policies and procedures regarding participation beyond conferring with the nurse. If either the facility or nurse will have an attorney or representative present at the peer review hearing in any capacity, the facility or nurse must notify the other at least seven (7) calendar days before the hearing that they will have an attorney or representative attending the hearing and in what capacity. Notwithstanding any other provisions of these rules, if an attorney representing the facility or peer review committee is present at the peer review hearing in any capacity, including serving as a member of the peer review committee, the nurse is entitled to "parity of participation of counsel." "Parity of participation of counsel" means that the nurse's attorney is able to participate to the same extent and level as the facility's attorney; e.g., if the facility's attorney can question witnesses, the nurse's attorney must have the same right.
   6. (6) Confidentiality of information presented to and/or considered by the peer review committee shall be maintained and not disclosed except as provided by Texas Occupations Code §§303.006 and 303.007. Disclosure/discussion by a nurse with the nurse's attorney is proper because the attorney is bound to the same confidentiality requirements as the nurse.
   7. (7) In evaluating a nurse's conduct, the committee shall review the evidence to determine the extent to which any deficiency in care by the nurse was the result of deficiencies in the nurse's judgment, knowledge, training, or skill rather than other factors beyond the nurse's control. A determination that a deficiency in care is attributable to a nurse must be based on the extent to which the nurse's conduct was the result of a deficiency in the nurse's judgment, knowledge, training, or skill.

   8. (8) If a peer review committee finds that a nurse has engaged in conduct reportable to the Board of Nurse Examiners or Board of Vocational Nurse Examiners, the committee's report shall include:

      1. (A) a description of any corrective action taken against the nurse and
      2. (B) a statement as to whether the committee recommends that formal disciplinary action be taken against the nurse.
   9. (9) Texas Occupations Code chapter 303, requires that peer review be conducted in good faith. A nurse who knowingly participates in peer review in bad faith is subject to disciplinary action by the Board under the Texas Occupations Code §301.452(b). Examples of bad faith are taking action against a nurse without providing the nurse the rights provided by these rules or taking action based on personal animosity towards the nurse.
   10. (10) A nurse whose practice is being evaluated may properly choose not to participate in the proceeding after the nurse has been notified under Rule 217.19(a)(4)(C). Texas Occupations Code §303.002(d) prohibits nullifying by contract any right a nurse has under the peer review process.
   11. (11) The Chief Nursing Officer (CNO) of a facility is responsible for knowing the requirements of this Rule and for taking reasonable steps to assure that peer review is implemented and conducted in compliance with this Rule. The CNO is the registered nurse who is administratively responsible for nursing services.

2. (b) Effect of RN Reporting to Peer Review Committee. If a registered nurse reports a nurse to a nursing peer review committee for conduct that the nurse has a duty to report to the Board, the report to the committee will satisfy the nurse's duty to report to the Board provided that the following conditions are met:

   1. (1) The peer review committee shall report the nurse to the Board, if it finds the nurse engaged in reportable conduct. If the peer review committee finds that the conduct constitutes a minor incident as defined by rule 217.16 (relating to reporting of minor incidents), it shall report in accordance with the requirements of that rule;
   2. (2) The reporting nurse shall be notified of the peer review committee's findings and shall be subject to Texas Occupations Code §303.006; and
   3. (3) the reporting nurse accepts in good faith the findings of the peer review committee.

Source Note:The provisions of this §217.19 adopted to be effective May 12, 2002, 27 TexReg 4019.