Texas Register, Volume 32, Number 44, Pages 7777-8060, November 2, 2007 Page: 7,850
7777-8060 p. ; 28 cm.View a full description of this periodical.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
(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 peer
review record to be included whenever the committee's findings are
disclosed;
(J) An incident-based peer review committee's determi-
nation to report a nurse to the board cannot be overruled, changed, or
dismissed.
(4) Nurse's Right To Representation
(A) A nurse shall have a right of representation as set
out in this section. The rights set out in this section are minimum re-
quirements and a facility may allow the nurse more representation. The
incident-based 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 peer review hearing must comply with the facility's in-
cident-based peer review policies and procedures regarding participa-
tion beyond conferring with the nurse.
(C) If either the facility or nurse will have an attorney
or representative present at the incident-based 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 peer
review committee is present at the incident-based peer review hearing
in any capacity, including serving as a member of the incident-based
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.
(5) A nurse whose practice is being evaluated may properly
choose not to participate in the proceeding after the nurse has been no-
tified under subsection (d)(3)(H) of this section. Nursing Peer Review
(TOC) 303.002(d) prohibits nullifying by contract any right a nurse
has under the incident-based peer review process. If a nurse elects not
to participate in incident-based peer review, the nurse waives any right
to procedural due process under TOC 303.002 and subsection (d) of
this section.
(e) Use of Informal Work Group In Incident Based Peer Re-
view.
(1) A facility may choose to initiate an informal review
process utilizing a workgroup of the nursing incident-based peer re-
view committee provided there are written policies for the informal
workgroup that require:
(A) the nurse to be informed of how the informal work-
group will function, and to consent, in writing, to the use of an informal
workgroup. A nurse does not waive any right to incident-based peer
review by accepting or rejecting the use of an informal workgroup;
(B) if the informal workgroup believes that a practice
violation has occurred and suspects that the nurse's practice is impairedby chemical dependency or diminished mental capacity, the committee
chair must be notified to determine if peer review should be terminated
and the nurse reported to the board;
(C) the informal workgroup to comply with the mem-
bership and voting requirements of subsection (d)(3)(A) and (B) of this
section;
(D) the nurse be provided the opportunity to meet with
the informal workgroup;
(E) the nurse to have the right to reject any decision of
the informal workgroup and to then have his/her conduct reviewed by
the incident-based peer review committee, in which event members of
the informal workgroup shall not participate in that determination; and
(F) ratification by the incident-based peer review com-
mittee chair person of any decision made by the informal workgroup.
If the chair person disagrees with a determination of the informal work-
group to remediate a nurse for one or more minor incidents, the chair
person shall convene the full peer review committee to review the con-
duct in question.
(G) the peer review chair person must communicate any
decision of the informal work group to the CNO.
(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) Peer review conducted solely in compliance with NPA
(TOC) 301.405(c) relating to incident-based peer review of external
factors, after a report of a nurse to the board has already occurred under
NPA (TOC) 301.405(b); or
(2) when during the course of the incident-based peer re-
view process, a practice violation is identified as a possible conse-
quence of the nurse's practice being impaired as described under sub-
section (g) of this section; or
(3) when a person required to report a nurse believes that
a nurse's practice is impaired or suspected of being impaired has also
resulted in a violation under NPA (TOC) 301.410(b), that requires a
direct report to the board.
g Incident-Based Peer Review of a Nurse's Impaired Prac-
tice/Lack of Fitness.
(1) Instead of requesting review by a peer review com-
mittee, a nurse whose practice is impaired or suspected of being im-
paired due to chemical dependency, drug or alcohol abuse, substance
abuse/misuse, "intemperate use," mental illness, or diminished men-
tal capacity, with no evidence of nursing practice violations, shall be
reported, in accordance with NPA (TOC) 301.410(a) (related to re-
porting of impairment), to either:
(A) the board; or
(B) a board-approved peer assistance program.
(2) If during the course of an incident-based peer review
process, there is a reasonable factual basis for a determination that a
practice violation occurred due to a nurse's practice impairment or sus-
pected practice impairment or lack of fitness due to chemical depen-
dency, drug or alcohol abuse, substance abuse/misuse, "intemperate
use," mental illness, or diminished mental capacity of a reported nurse,
the incident-based peer review process shall be suspended, and the
nurse reported to the board in accordance with NPA (TOC) 301.410(b)
(related to required report to board when practice violations exist with
suspected practice impairment/lack of fitness).32 TexReg 7850 November 2, 2007 Texas Register
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Periodical.
Texas. Secretary of State. Texas Register, Volume 32, Number 44, Pages 7777-8060, November 2, 2007, periodical, November 2, 2007; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth97421/m1/72/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.