1. (a) Texas Occupations Code §303.005 requires a person who regularly employs, hires or contracts for the services of at least ten (10) RNs to permit a RN to request Peer Review when requested to engage in conduct that the RN believes is in violation of his/her duty to a patient. "Duty to a patient" means conduct, including administrative decisions directly affecting a RN's ability to comply with that duty, required by standards of practice or professional conduct adopted by the Board. A RN requesting safe harbor in compliance with §303.005 and these rules is afforded the protections outlined in §303.005(c).

2. (b) Minimum Due Process. The minimum due process requirements of rule 217.19 do not apply to Safe Harbor Peer Review except in those circumstances outlined in rule 217.20(e)(2). The peer review committee shall exclude from the committee any persons or person with administrative authority for personnel decisions directly affecting the nurse. The RN requesting safe harbor shall be permitted to:

   1. (1) appear before the committee;
   2. (2) ask questions and respond to questions of the committee; and
   3. (3) make a verbal and/or written statement to explain why he or she believes the requested conduct would have violated a RN's duty to a patient.

3. (c) Safe Harbor Protections. To activate protections outlined in Texas Occupations Code §303.005, the RN shall:

   1. (1) Invoke Safe Harbor in good faith. "Good faith" means that the RN believes that the requested conduct violates a RN's duty to a patient and that belief is one a reasonable RN could hold.
   2. (2) At the time the RN is requested to engage in the activity, notify the supervisor making the assignment that the RN is invoking Safe Harbor.

   3. (3) At the time of supervisor notification, also submit a written request for Safe Harbor utilizing the Safe Harbor form provided on the Board's web site or on a form that includes a minimum of the following information:

      1. (A) the conduct assigned or requested, including the name and title of the person making the assignment or request;
      2. (B) a description of the practice setting (e.g., the RN's responsibilities, resources available, extenuating or contributing circumstances impacting the situation);
      3. (C) a detailed description of how the conduct would have violated the RN's duty to a patient or any other provision of the Nursing Practice Act and Board Rules. If possible, reference the specific standard (Rule 217.11) or other section of the Nursing Practice Act and/or Board rules the RN believes would have been violated;
      4. (D) any other copies of pertinent documentation available at the time. Additional documents may be submitted to the committee when available at a later time; and
      5. (E) the RN's name, title, and relationship to the supervisor making the assignment or request.
   4. (4) If the RN does not submit the initial request for Safe Harbor using the form on the BNE web site, the facility and RN shall adhere to the Safe Harbor process as outlined on the BNE form.

4. (d) Safe Harbor Processes

   1. (1) The following timelines shall be followed:

      1. (A) the peer review committee shall complete its review and notify the nurse administrator within 14 days of when the RN requested Safe Harbor;
      2. (B) within 48 hours of receiving the committee's determination, the nurse administrator shall review these findings and notify the RN requesting peer review of both the committee's determination and whether the administrator believes in good faith that the committee's findings are correct or incorrect.
   2. (2) If Safe Harbor was invoked to question the medical reasonableness of a physician's order, the medical staff or medical director shall determine whether the order was reasonable. Consideration for patient safety should contribute to the timeline for implementing a decision, but shall not exceed the time limits specified in this section.
   3. (3) The RN invoking Safe Harbor is responsible for keeping a copy of the request for Safe Harbor, and shall be given a copy of the committee's determination and the nurse administrator's review, if separate from the Safe Harbor form.

5. (e) Exclusions to Safe Harbor Protections

   1. (1) The protections provided under subsection (c) do not apply to the RN who invokes Safe Harbor in bad faith, or engages in activity unrelated to the reason for the request for Safe Harbor and that constitutes reportable misconduct of a professional nurse, even if this activity occurs during the time a peer review committee is considering the RN's request for Safe Harbor.
   2. (2) In addition to consideration of the RN's request for Safe Harbor, the peer review committee may consider whether an exclusion to Safe Harbor peer review applies, and evaluate whether a professional nurse has engaged in reportable misconduct provided such review is conducted in accordance with the requirements of rule 217.19.
   3. (3) If the peer review committee determines that a RN's conduct was not related to the RN's request for Safe Harbor and would otherwise constitute misconduct reportable to the Board, the committee shall report the RN to the Board as required in Texas Occupations Code §301.403.
6. (f) The Chief Nursing Officer (CNO) of a facility is responsible for knowing the requirements of the 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.
7. (g) 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).
8. (h) The peer review committee and participants shall comply with the confidentiality requirements of Texas Occupations Code §§303.006 and 303.007 relating to confidentiality and limited disclosure of peer review information.

Source Note:The provisions of this §217.20 adopted to be effective May 12, 2002, 27 TexReg 4019.