(a) Definitions.
  (1) Assignment--Designated responsibility for the provision or supervision of nursing care for a defined period of time in a defined work setting. This includes but is not limited to the specified functions, duties, practitioner orders, supervisory directives, and amount of work designated as the individual nurse's responsibility. Changes in the nurse's assignment may occur at any time during the work period.
  (2) Bad Faith--Knowingly or recklessly taking action not supported by a reasonable factual or legal basis. The term includes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity towards the nurse, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
  (3) Chief Nursing Officer (CNO)--The registered nurse, by any title, who is administratively responsible for the nursing services at a facility, association, school, agency, or any other setting that utilizes the services of nurses.
  (4) Conduct Subject to Reporting defined by Texas Occupations Code (TOC) §301.401 of the Nursing Practice Act as conduct by a nurse that:
    (A) violates the Nursing Practice Act (NPA) or a Board rule and contributed to the death or serious injury of a patient;
    (B) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;
    (C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or
    (D) 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.
  (5) Duty to a patient--A nurse's duty is to always advocate for patient safety, including any nursing action necessary to comply with the standards of nursing practice (§217.11 of this title) and to avoid engaging in unprofessional conduct (§217.12 of this title). This includes administrative decisions directly affecting a nurse's ability to comply with that duty.
  (6) Good Faith--Taking action supported by a reasonable factual or legal basis. Good faith precludes misrepresenting the facts surrounding the events under review, acting out of malice or personal animosity, acting from a conflict of interest, or knowingly or recklessly denying a nurse due process.
  (7) Incident-Based Nursing Peer Review--Incident-based nursing peer review focuses on determining if a nurse's actions, be it a single event or multiple events (such as in reviewing up to five (5) minor incidents by the same nurse within a year's period of time), should be reported to the Board or if the nurse's conduct does not require reporting because the conduct constitutes a minor incident that can be remediated. The review includes whether external factors beyond the nurse's control may have contributed to any deficiency in care by the nurse and to report such findings to a patient safety committee as applicable.
  (8) Malice--Acting with a specific intent to do substantial injury or harm to another.
  (9) Minor incident--Conduct by a nurse that does not indicate that the nurse's continued practice poses a risk of harm to a patient or another person as described in §217.16 of this title.
  (10) Nurse Administrator--Chief Nursing Officer (CNO) or the CNO's designee.
  (11) Nursing Peer Review Law (NPR Law)--Chapter 303 of the TOC. Nurses involved in nursing peer review must comply with the NPR Law.
  (12) Nursing Practice Act (NPA)--Chapter 301 of the TOC. Nurses must comply with the NPA.
  (13) Patient Safety Committee--Any committee established by an association, school, agency, health care facility, or other organization to address issues relating to patient safety including:
    (A) the entity's medical staff composed of individuals licensed under Subtitle B (Medical Practice Act, TOC §§151.001, et seq.);
    (B) a medical committee under Chapter 161, Subchapter D of the Health and Safety Code (§§161.031 - 161.033); or
    (C) a multi-disciplinary committee, including nursing representation, or any committee established by the same entity to promote best practices and patient safety.
  (14) Peer Review--Defined by TOC §303.001(5) (NPR Law) as the evaluation of nursing services, the qualifications 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 complaint. The term also includes the provision of information, advice, 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 nursing peer review, and the resolution of workplace and practice questions relating to nursing and patient care. The nursing 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. Nursing peer review conducted by any entity must comply with NPR Law and with applicable Board rules related to incident-based or safe harbor nursing peer review.
  (15) Safe Harbor--A process that protects a nurse from employer retaliation, suspension, termination, discipline, discrimination, and licensure sanction when a nurse makes a good faith request for nursing peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. Safe Harbor must be invoked prior to engaging in the conduct or assignment for which nursing peer review is requested, and may be invoked at anytime during the work period when the initial assignment changes.
  (16) Texas Occupations Code (TOC)--One of the topical subdivisions or "codes" into which the Texas Statutes or laws are organized. The TOC contains the statutes governing occupations and professions including the health professions. Both the NPA and NPR Law are located within these statutes. The TOC can be changed only by the Texas Legislature.
  (17) Whistleblower Protections--Protections available to a nurse that prohibit retaliatory action by an employer or other entity because the nurse:
    (A) made a good faith request for Safe Harbor Nursing Peer Review under TOC §303.005(c) (NPR Law) and §217.20 of this title;
    (B) refused to engage in an act or omission relating to patient care that would constitute a violation of the NPA or Board rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage in Certain Conduct). A nurse invoking Safe Harbor under §217.20 of this title must comply with §217.20(g) of this title if the nurse refuses to engage in the conduct or assignment; or
    (C) made a lawful report of unsafe practitioners, or unsafe patient care practices or conditions, in accordance with TOC §301.4025 (NPA) (report of unsafe practices of non-nurse entities) and subsection (j)(2) of this section.
(b) Purpose. The purpose of this rule is to:
  (1) define minimum due process to which a nurse is entitled under incident-based nursing peer review;
  (2) provide guidance to facilities, agencies, schools, or anyone who utilizes the services of nurses in the development and application of incident-based nursing peer review plans;
  (3) assure that nurses have knowledge of the plan; and
  (4) provide guidance to the incident-based nursing peer review committee in its fact finding process.
(c) Applicability of Incident-Based Nursing Peer Review. TOC §303.0015 (NPR Law) requires a person who regularly employs, hires or contracts for the services of eight (8) or more nurses (for nursing peer review of an RN, at least four (4) of the 8 must be RNs) to conduct nursing peer review for purposes of TOC §301.401(1) and §301.402(e) (NPA) (relating to alternate reporting by nurses to nursing peer review when a nurse engages in conduct subject to reporting), §301.403 (relating to nursing peer review committee reporting), §301.405(c) (relating to nursing peer review of external factors as part of employer reporting), and §301.407(b) (relating to alternate reporting by state agencies to nursing peer review).
(d) Minimum Due Process.
  (1) A licensed nurse subject to incident-based nursing peer review is entitled to minimum due process under TOC §303.002(e) (NPR Law). Any person or entity that conducts incident-based nursing peer review must comply with the due process requirements of this section even if the person or entity does not utilize the number of nurses described by subsection (c) of this section.
Cont'd...
(2) A facility conducting incident-based nursing peer review shall have written policies and procedures that, at a minimum, address:
    (A) the level of participation of nurse or nurse's representative at an incident-based nursing peer review hearing beyond that required by this subsection;
    (B) confidentiality and safeguards to prevent impermissible disclosures including written agreement by all parties to abide by TOC §§303.006, 303.007, 303.0075 (NPR Law) and subsection (h) of this section;
    (C) handling of cases involving nurses who are impaired or suspected of being impaired by chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity in accordance with the TOC §301.410, and subsection (g) of this section;
    (D) reporting of nurses to the Board by incident-based nursing peer review committee in accordance with the TOC §301.403, and subsection (i) of this section; and
    (E) effective date of changes to the policies which in no event shall apply to incident-based nursing peer review proceedings initiated before the change was adopted unless agreed to in writing by the nurse being reviewed.
  (3) In order to meet the minimum due process required by TOC Chapter 303 (NPR Law), the nursing peer review committee must:
    (A) comply with the membership and voting requirements as set forth in TOC §303.003 (NPR Law);
    (B) exclude from the committee, including attendance at the nursing peer review hearing, any person or persons with administrative authority for personnel decisions directly relating to the nurse. This requirement does not exclude a person who is administratively responsible over the nurse being reviewed from appearing before the committee to speak as a fact witness;
    (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:
      (i) the nurse's practice is being evaluated;
      (ii) the incident-based nursing 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:
        (I) the incident-based nursing peer review committee determines an extended time period (extending the 45 days by no more than an additional 45 days) is necessary in order to consult with a patient safety committee; or
        (II) otherwise agreed upon by the nurse and incident-based nursing peer review committee; and
      (iii) includes the information required by subparagraph (D) of this paragraph.
    (D) Include in the notice required by subparagraph (C) of this paragraph:
      (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;
      (ii) the name, address, telephone number of contact person to receive the nurse's response; and
      (iii) a copy of this rule (§217.19 of this title) and a copy of the facility's incident-based nursing peer review plan, policies and procedures.
    (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;
    (F) provide the nurse the opportunity to:
      (i) submit a written statement regarding the event under review;
      (ii) call witnesses, question witnesses, and be present when testimony or evidence is being presented;
      (iii) be provided copies of the witness list and written testimony or evidence at least 48 hours in advance of proceeding;
      (iv) make an opening statement to the committee;
      (v) ask questions of the committee and respond to questions of the committee; and
      (vi) make a closing statement to the committee after all evidence is presented;
    (G) complete its review no more than fourteen (14) calendar days after the incident-based nursing peer review hearing, or in compliance with subparagraph (C)(ii) of this paragraph relating to consultation with a patient safety committee;
    (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
    (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 incident-based nursing peer review record to be included whenever the committee's findings are disclosed;
  (4) An incident-based nursing peer review committee's determination to report a nurse to the Board cannot be overruled, changed, or dismissed.
  (5) Nurse's Right to Representation.
    (A) A nurse shall have a right of representation as set out in this paragraph. These rights are minimum requirements and a facility may allow the nurse more representation. The incident-based nursing 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.
    (B) The nurse has the right to be accompanied to the hearing by a nurse peer or an attorney. Representatives attending the incident-based nursing peer review hearing must comply with the facility's incident-based nursing peer review policies and procedures regarding participation beyond conferring with the nurse.
    (C) If either the facility or nurse will have an attorney or representative present at the incident-based nursing 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.
    (D) Notwithstanding any other provisions of these rules, if an attorney representing the facility or incident-based nursing peer review committee is present at the incident-based nursing peer review hearing in any capacity, including serving as a member of the incident-based nursing 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) A nurse whose practice is being evaluated may properly choose not to participate in the proceeding after the nurse has been notified under paragraph (3)(C) of this subsection. If a nurse elects not to participate in incident-based nursing peer review, the nurse waives any right to procedural due process under TOC §303.002 (NPR Law) and this subsection.
(e) Use of Informal Workgroup In Incident Based Nursing Peer Review. A facility may choose to initiate an informal review process utilizing a workgroup of the nursing incident-based nursing peer review committee provided there are written policies for the informal workgroup that require:
  (1) the nurse be informed of how the informal workgroup will function, and consent, in writing, to the use of an informal workgroup. A nurse does not waive any right to incident-based nursing peer review by accepting or rejecting the use of an informal workgroup;
  (2) if the informal workgroup suspects that the nurse's practice is impaired by chemical dependency or diminished mental capacity, the chairperson must be notified to determine if nursing peer review should be terminated and the nurse reported to the Board or to a Board-approved peer assistance program as required by subsection (g) of this section;
  (3) the informal workgroup comply with the membership and voting requirements of subsection (d)(3)(A) and (B) of this section;
  (4) the nurse be provided the opportunity to meet with the informal workgroup;
  (5) the nurse have the right to reject any decision of the informal workgroup and to then have his/her conduct reviewed by the nursing peer review committee, in which event members of the informal workgroup shall not participate in that determination; and
  (6) ratification by the committee chairperson of any decision made by the informal workgroup. If the chairperson disagrees with a determination of the informal workgroup, the chairperson shall convene the full nursing peer review committee to make a determination regarding the conduct in question; and
Cont'd...
(7) the chairperson communicate any decision of the informal workgroup to the CNO or nurse administrator
(f) Exclusions to Minimum Due Process Requirements. The minimum due process requirements set out in subsection (d) of this section do not apply to:
  (1) nursing peer review conducted solely in compliance with TOC §301.405(c) (NPA) relating to review of external factors, after a report of a nurse to the Board has already occurred under TOC §301.405(b) (relating to mandatory report by employer, facility or agency);
  (2) reviews governed by subsection (g) of this section involving nurses whose practice is suspected of being impaired due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity; or
  (3) when a person required to report a nurse believes that a nurse's practice is impaired or suspected of being impaired and has also resulted in a violation under TOC §301.410(b), that requires a direct report to the Board.
(g) Incident-Based Nursing Peer Review of a Nurse's Impaired Practice/Lack of Fitness.
  (1) When a nurse's practice is impaired or suspected of being impaired due to chemical dependency, drug or alcohol abuse, substance abuse/misuse, "intemperate use," mental illness, or diminished mental capacity, nursing peer review of the nurse shall be suspended. The nurse shall be reported to the Board or to a Board-approved peer assistance program in accordance with TOC §301.410 (related to reporting of impairment):
    (A) if there is no reasonable factual basis for determining that a practice violation is involved, the nurse shall be reported to:
      (i) the Board; or
      (ii) a Board-approved peer assistance program, that shall handle reporting the nurse in accordance with §217.13 of this title; or
    (B) if there is a reasonable factual basis for a determination that a practice violation is involved, the nurse shall be reported to the Board.
  (2) Following suspension of nursing peer review of the nurse, the committee shall proceed to evaluate external factors to determine if:
    (A) any factors beyond the nurse's control contributed to a practice violation; and
    (B) any deficiency in external factors enabled the nurse to engage in unprofessional or illegal conduct.
  (3) If the committee determines under paragraph (2) of this subsection that external factors do exist for either paragraph (2)(A) or (B) of this subsection, the committee shall report its findings to a patient safety committee or to the CNO or nurse administrator if there is no patient safety committee.
  (4) A facility, organization, contractor, or other entity does not violate a nurse's right to due process under subsection (d) of this section by suspending the committee's review of the nurse and reporting the nurse to the Board or a Board-approved peer assistance program in accordance with paragraph (1) of this subsection.
  (5) Paragraph (1) of this subsection does not preclude a nurse from self-reporting to a peer assistance program or appropriate treatment facility.
(h) Confidentiality of Proceedings.
  (1) Confidentiality of information presented to and/or considered by the incident-based nursing peer review committee shall be maintained and the information not disclosed except as provided by TOC §§303.006, 303.007, and 303.0075 (NPR Law). 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.
  (2) In accordance with TOC §303.0075, a nursing incident-based nursing peer review committee, including an entity contracted to conduct nursing peer review under TOC §303.0015(b), and any patient safety committee established by the same entity, may share information.
    (A) A record or determination of a patient safety committee, or a communication made to a patient safety committee, is not subject to subpoena or discovery and is not admissible in any civil or administrative proceeding, regardless of whether the information has been provided to a nursing peer review committee.
    (B) The privileges under this subsection may be waived only through a written waiver signed by the chair, vice chair, or secretary of the patient safety committee.
    (C) This section does not affect the application of TOC §303.007 (NPR Law) (relating to disclosures by nursing peer review committee) to a nursing peer review committee.
    (D) A committee that receives information from another committee shall forward any request to disclose the information to the committee that provided the information.
  (3) A CNO or Nurse Administrator shall assure that policies are in place relating to sharing of information and documents between an incident-based nursing peer review committee and a patient safety committee(s) that at a minimum, address:
    (A) separation of confidential incident-based nursing peer review information from the nurse's human resource file;
    (B) methods in which shared communications and documents are labeled and maintained as to which committee originated the documents or communications;
    (C) the confidential and separate nature of incident-based nursing peer review and patient safety committee proceedings including shared information and documents; and
    (D) the treatment of nurses who violate the policies including when a violation may result in a nurse being reported to the Board or a nursing peer review committee.
(i) Committee Responsibility to Evaluate and Report.
  (1) In evaluating a nurse's conduct, the incident-based nursing peer review 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.
    (A) For errors involving the death or serious injury of a patient, if a nursing peer review committee makes a determination that a nurse has not engaged in conduct subject to reporting to the Board, the committee must maintain documentation of the rationale for its belief that the nurse's conduct failed to meet each of the factors in the definition of "conduct subject to reporting", as defined in TOC §301.401(1)(A) - (D) and subsection (a)(4)(A) - (D) of this section.
    (B) Conduct subject to reporting means conduct by a nurse that:
      (i) violates the NPA or a Board rule and contributed to the death or serious injury of a patient;
      (ii) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;
      (iii) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or
      (iv) 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.
  (2) An incident-based nursing peer review committee shall consider whether a nurse's conduct constitutes one or more minor incidents under §217.16 of this title. A nursing peer review committee receiving a report involving a minor incident or incidents must review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continued practice poses a risk of harm to patients or other persons and whether remediation would be reasonably expected to adequately mitigate such risk, if it exists. The committee must consider the factors set out in §217.16(d) of this title. In accordance with §217.16, the committee may determine that the nurse:
    (A) can be remediated to correct the deficiencies identified in the nurse's judgment, knowledge, training, or skill; or
    (B) should be reported to the Board for either a pattern of practice that fails to meet minimum standards, or for one or more events that the incident-based nursing peer review committee determines cannot be categorized as a minor incident(s); or
    (C) if a nurse terminates employment while undergoing remediation activities as directed by a nursing peer review committee under paragraph (2)(A) of this subsection, the nursing peer review committee may:
    (I) report the nurse to the Board;
    (II) report to the nursing peer review committee of the new employer, if known, with the nurse's written consent; or
Cont'd...
(III) re-evaluate the nurse's current conduct to determine if the nurse did complete sufficient remediation and is deemed safe to practice.
  (3) An incident-based nursing peer review committee is not required to submit a report to the Board if:
    (A) the committee determines that the reported conduct was a minor incident that is not required to be reported in accordance with provisions of §217.16 of this title; or
    (B) the nurse has already been reported to the Board under TOC §301.405(b) (NPA) (employer reporting requirements).
  (4) Unless the exceptions outlined in paragraph (3)(A) and (B) of this subsection are met, an incident-based nursing peer review committee shall report a nurse to the Board if it is determined that the nurse has engaged in conduct subject to reporting.
  (5) If the committee determines it is required to report a nurse to the Board, the committee shall submit to the Board a written, signed report that includes:
    (A) the identity of the nurse;
    (B) description of the conduct subject to reporting;
    (C) a description of any corrective action taken against the nurse;
    (D) a recommendation as to whether the Board should take formal disciplinary action against the nurse, and the basis for the recommendation;
    (E) the extent to which any deficiency in care provided by the reported nurse was the result of a factor beyond the nurse's control; and
    (F) any additional information the Board requires.
  (6) If an incident-based nursing peer review committee determines that a deficiency in care by the nurse was the result of a factor(s) beyond the nurse's control, in compliance with TOC §303.011(b) (NPR Law) (related to required nursing peer review committee report when external factors contributed to a nurse's deficiency in care), the committee must submit a report to the applicable patient safety committee, or to the CNO or nurse administrator if there is no patient safety committee. A patient safety committee must report its findings back to the incident-based nursing peer review committee.
  (7) An incident-based nursing peer review committee is not required to withhold its determination of the nurse being incident-based nursing peer reviewed, pending feedback from a patient safety committee, unless the committee believes that a determination from a patient safety committee is necessary in order for the incident-based nursing peer review committee to determine if the nurse's conduct is reportable.
    (A) If an incident-based nursing peer review committee finds that factors outside the nurse's control contributed to a deficiency in care, in addition to reporting to a patient safety committee, the incident-based nursing peer review committee may also make recommendations for the nurse, up to and including reporting to the Board.
    (B) An incident-based nursing peer review committee may extend the time line for completing the incident-based nursing peer review process (extending the 45 days by no more than an additional 45 days) if the committee members believe they need input from a patient safety committee. The incident-based nursing peer review committee must complete its review of the nurse within this 90-day time frame.
  (8) An incident-based nursing peer review committee's determination to report a nurse to the Board cannot be overruled, changed, or dismissed.
(j) Nurse's Duty to Report.
  (1) A report made by a nurse to a nursing incident-based nursing peer review committee will satisfy the nurse's duty to report to the Board under TOC §301.402 (mandatory report by a nurse) provided that the following conditions are met:
    (A) The reporting nurse shall be notified of the incident-based nursing peer review committee's actions or findings and shall be subject to TOC §303.006 (confidentiality of nursing peer review proceedings); and
    (B) The nurse has no reason to believe the incident-based nursing peer review committee made its determination in bad faith.
  (2) A nurse may not be suspended, terminated, or otherwise disciplined, retaliated, or discriminated against for filing a report in good faith under this section and TOC §301.402(f) (retaliation for a report made in good faith prohibited) or advising a nurse of the nurse's rights and obligations under this section and §301.402(f). A violation of this subsection or TOC §301.402(f) is subject to TOC §301.413 that provides a nurse the right to file a civil suit to recover damages. The nurse may also file a complaint with the regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.
(k) State Agency Duty to Report. A state agency that has reason to believe that a nurse has engaged in conduct subject to reporting shall report the nurse in writing to:
  (1) the Board; or
  (2) the applicable nursing peer review committee in lieu of reporting to Board.
(l) Integrity of Incident-Based Nursing Peer Review Process.
  (1) Incident-based nursing peer review must be conducted in good faith. A nurse who knowingly participates in incident-based nursing peer review in bad faith is subject to disciplinary action by the Board.
  (2) The CNO or nurse administrator of a facility, association, school, agency, or of any other setting that utilizes the services of nurses is responsible for knowing the requirements of this rule and for taking reasonable steps to assure that incident-based nursing peer review is implemented and conducted in compliance with the NPA, NPR Law, and this section.
  (3) A determination by an incident-based nursing peer review committee, a CNO, nurse administrator, or an individual nurse to report a nurse to the Board cannot be overruled, dismissed, changed, or reversed. An incident-based nursing peer review committee, CNO, and individual nurse each have a separate responsibility to protect the public by reporting a nurse to the Board as set forth in TOC §§301.402, 301.405, 217.11(1)(K) of this title, and this section.
(m) Reporting Conduct of other Practitioners or Entities: Whistleblower Protections.
  (1) This section does not expand the authority of any incident-based nursing peer review committee or the Board to make determinations outside the practice of nursing.
  (2) In a written, signed report to the appropriate licensing Board or accrediting body, and in accordance with TOC §301.4025 (report of unsafe practices of non-nurse entities), a nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to:
    (A) minimum standards of acceptable and prevailing professional practice, for a report made regarding a practitioner; or
    (B) statutory, regulatory, or accreditation standards, for a report made regarding an agency or facility.
  (3) A nurse may report to the nurse's employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.
  (4) A person may not suspend or terminate the employment of, or otherwise discipline, retaliate, or discriminate against, a person who reports, in good faith, under this subsection or who advises a nurse of the nurse's rights and obligations under this subsection. A violation of this subsection is subject to TOC §301.413 (NPA) that provides a nurse the right to file a civil suit to recover damages. The nurse may also file a complaint with the regulatory agency that licenses or regulates the nurse's practice setting. The BON does not have regulatory authority over practice settings or civil liability.

Source Note: The provisions of this §217.19 adopted to be effective May 11, 2008, 33 TexReg 3633; amended to be effective January 9, 2012, 37 TexReg 62; amended to be effective April 26, 2018, 43 TexReg 2413