CHAPTER 303. NURSING PEER REVIEW
OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE E. REGULATION OF NURSING
CHAPTER 303. NURSING PEER REVIEW
Sec. 303.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Nursing.
(2) "Nurse" means a registered nurse or a vocational nurse
licensed under Chapter 301.
(3) "Nursing" has the meaning assigned by Section 301.002.
(4) "Nursing peer review committee" means a committee
established under the authority of the governing body of a
national, state, or local nursing association, a school of
nursing, the nursing staff of a hospital, health science center,
nursing home, home health agency, temporary nursing service, or
other health care facility, or state agency or political
subdivision for the purpose of conducting peer review. The
committee includes an employee or agent of the committee,
including an assistant, an investigator, an intervenor, an
attorney, and any other person who serves the committee in any
capacity.
(4-a) "Patient safety committee" means a 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; or
(B) a medical committee under Subchapter D, Chapter 161, Health
and Safety Code.
(5) "Peer review" means 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 includes:
(A) the evaluation of the accuracy of a nursing assessment and
observation and the appropriateness and quality of the care
rendered by a nurse;
(B) a report made to a nursing peer review committee concerning
an activity under the committee's review authority;
(C) a report made by a nursing peer review committee to another
committee or to the board as permitted or required by law; and
(D) implementation of a duty of a nursing peer review committee
by a member, an agent, or an employee of the committee.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.018, eff. Feb.
1, 2004.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 16, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
889, Sec. 38, eff. September 1, 2007.
Sec. 303.0015. REQUIRED ESTABLISHMENT OF NURSING PEER REVIEW
COMMITTEE. (a) A person shall establish a nursing peer review
committee to conduct nursing peer review under this chapter and
Chapter 301:
(1) for vocational nurses, if the person regularly employs,
hires, or contracts for the services of 10 or more nurses; and
(2) for professional nurses, if the person regularly employs,
hires, or contracts for the services of 10 or more nurses, at
least five of whom are registered nurses.
(b) A person required to establish a nursing peer review
committee under this section may contract with another entity to
conduct the peer review for the person.
Added by Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 17, eff. September 1, 2007.
Sec. 303.002. GENERAL PROVISIONS REGARDING PEER REVIEW. (a)
Repealed by Acts 2003, 78th Leg., ch. 553, Sec. 3.001.
(b) The board shall enter into a memorandum of understanding
with each state agency that licenses, registers, or certifies a
facility required by law to have a nursing peer review committee.
The memorandum of understanding must:
(1) state the actions the board and agency are to take to
encourage compliance with the requirement to have a nursing peer
review committee; and
(2) be adopted as a rule of the board and the agency.
(c) A court may not enjoin the activities of a nursing peer
review committee under this chapter.
(d) This chapter may not be nullified by a contract.
(e) The committee shall give the nurse being reviewed at least
minimum due process, including notice and opportunity for a
hearing.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.019, 3.001(2),
eff. Feb. 1, 2004.
Sec. 303.003. COMMITTEE MEMBERSHIP. (a) A nursing peer review
committee must have nurses as three-fourths of its members.
(b) A nursing peer review committee that conducts a peer review
that involves the practice of vocational nursing, to the extent
feasible, must include vocational nurses as members and may have
only registered nurses and vocational nurses as voting members.
(c) A nursing peer review committee that conducts a peer review
that involves the practice of professional nursing must have
registered nurses as two-thirds of its members and may have only
registered nurses as voting members.
(d) The committee shall include to the extent feasible at least
one nurse who has a working familiarity with the area of nursing
practice in which the nurse being reviewed practices.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.020, eff. Feb.
1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch.
113, Sec. 15, eff. May 20, 2005.
Sec. 303.004. PEER REVIEW BY TWO ENTITIES. (a) A nurse who, as
a temporary agency nurse, faculty member, or similar staff
member, practices nursing for an educational institution, health
care facility, agency, or entity, or a person other than the
person who employs or directly compensates the nurse is subject
to peer review by both the employer and the other person.
(b) For the purposes of exchanging information, the peer review
committee reviewing the nurse's conduct is considered to be
established under the authority of both entities.
(c) The two entities may contract as to which entity will
conduct peer review of the nurse.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 303.005. REQUEST FOR PEER REVIEW COMMITTEE DETERMINATION.
(a) In this section, "duty to a patient" means conduct required
by standards of practice or professional conduct adopted by the
board for nurses. The term includes administrative decisions
directly affecting a nurse's ability to comply with that duty.
(a-1) For purposes of this section, a nurse or nurse
administrator does not act in good faith in connection with a
request made or an action taken by the nurse or nurse
administrator if there is not a reasonable factual or legal basis
for the request or action.
(b) If a person who is required to establish a nursing peer
review committee under Section 303.0015 requests a nurse to
engage in conduct that the nurse believes violates a nurse's duty
to a patient, the nurse may request, on a form developed or
approved by the board, a determination by a nursing peer review
committee under this chapter of whether the conduct violates a
nurse's duty to a patient.
(c) A nurse who in good faith requests a peer review
determination under Subsection (b):
(1) may not be disciplined or discriminated against for making
the request;
(2) may engage in the requested conduct pending the peer review;
(3) is not subject to the reporting requirement under Subchapter
I, Chapter 301; and
(4) may not be disciplined by the board for engaging in that
conduct while the peer review is pending.
(d) If a nurse requests a peer review determination under
Subsection (b) and refuses to engage in the requested conduct
pending the peer review, the determination of the peer review
committee shall be considered in any decision by the nurse's
employer to discipline the nurse for the refusal to engage in the
requested conduct, but the determination is not binding if a
nurse administrator believes in good faith that the peer review
committee has incorrectly determined a nurse's duty. This
subsection does not affect the protections provided by Subsection
(c)(1) or Section 301.352.
(e) If the conduct for which the peer review is requested under
Subsection (b) involves the medical reasonableness of a
physician's order, the medical staff or medical director shall be
requested to make a determination as to the medical
reasonableness of the physician's order, and that determination
is determinative of that issue.
(f) A nurse's rights under this section may not be nullified by
a contract.
(g) An appropriate licensing agency may take action against a
person who violates this section.
Text of subsection as repealed by Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 21
Text of subsection as amended by Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 18
Without reference to the amendment of this subsection, this
subsection was repealed by Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 21(6), eff. September 1, 2007.
(h) A person may not suspend or terminate the employment of, or
otherwise discipline or discriminate against, a nurse who in good
faith requests a peer review determination under this section or
a person who advises a nurse of the nurse's right to request a
determination or of the procedures for requesting a
determination. A violation of this subsection is subject to
Section 301.413.
(i) A person who is required to provide, on request, a nursing
peer review committee determination under Subsection (b) shall
adopt and implement a policy to inform nurses of the right to
request a nursing peer review committee determination and the
procedure for making a request.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.021, eff. June
20, 2003; Acts 2003, 78th Leg., ch. 876, Sec. 10, eff. Feb. 1,
2004.
Amended by:
Acts 2005, 79th Leg., Ch.
113, Sec. 16, eff. May 20, 2005.
Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 18, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 21(6), eff. September 1, 2007.
Sec. 303.006. CONFIDENTIALITY OF PEER REVIEW PROCEEDINGS. (a)
Except as otherwise provided by this chapter, a nursing peer
review committee proceeding is confidential and any communication
made to a nursing peer review committee is privileged.
(b) A member, agent, or employee of a nursing peer review
committee or a participant in a proceeding before the committee
may not disclose or be required to disclose a communication made
to the committee or a record or proceeding of the committee.
(c) A person who attends a nursing peer review committee
proceeding may not disclose or be required to disclose:
(1) information acquired in connection with the proceeding; or
(2) an opinion, recommendation, or evaluation of the committee
or a committee member.
(d) A nursing peer review committee member and a person who
provides information to the committee may not be questioned
about:
(1) the person's testimony before the committee; or
(2) an opinion formed as a result of the committee proceedings.
(e) Except as permitted by this chapter, information that is
confidential under this section:
(1) is not subject to subpoena or discovery in any civil matter;
(2) is not admissible as evidence in a judicial or
administrative proceeding; and
(3) may not be introduced into evidence in a nursing liability
suit arising out of the provision of or a failure to provide
nursing services.
(f) If a peer review committee determines that a nurse has not
engaged in conduct required to be reported to the nurse's
licensing board, a member of the peer review committee whose
knowledge of the nurse's conduct was acquired only through the
peer review may not report that nurse to the licensing board for
that conduct. A committee member is not prohibited from
reporting:
(1) the nurse, if the member has knowledge of the nurse's
conduct independently of peer review; or
(2) the peer review committee to the licensing board, if the
member believes the committee made its determination in bad
faith.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 876, Sec. 11, eff. June 20,
2003.
Sec. 303.007. DISCLOSURE OF INFORMATION. (a) A nursing peer
review committee on request shall disclose written or oral
communications made to the committee and the records and
proceedings of the committee to:
(1) a licensing authority of any state; or
(2) a law enforcement agency investigating a criminal matter.
(b) A nursing peer review committee may disclose written or oral
communications made to the committee and the records and
proceedings of the committee to:
(1) a licensing agency of any state;
(2) a law enforcement agency investigating a criminal matter;
(3) the association, school, agency, facility, or other
organization under whose authority the committee is established;
(4) another nursing peer review committee;
(5) a peer assistance program approved by the board under
Chapter 467, Health and Safety Code;
(6) an appropriate state or federal agency or accrediting
organization that accredits a health care facility or school of
nursing or surveys a facility for quality of care; or
(7) a person engaged in bona fide research, if all information
that identifies a specific individual is deleted.
(c) If a committee discloses information under this section, the
committee does not by that action waive the privilege of
nondisclosure of committee information and proceedings.
(d) A peer review committee that discloses information under
this section and each person who receives the information shall
protect, to the extent possible, the identity of each patient.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 303.0075. SHARING OF INFORMATION. (a) A nursing peer
review committee and a patient safety committee established by
the same entity may share information.
(b) 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.
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. This subsection does not affect
the application of Section 303.007 to a nursing peer review
committee.
(c) A committee that receives information from another committee
shall forward any request to disclose the information to the
committee that provided the information.
Added by Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 19, eff. September 1, 2007.
Sec. 303.008. REBUTTAL STATEMENT. (a) If a nursing peer review
committee makes an adverse finding against a nurse, the committee
shall provide the nurse with a detailed description of the basis
of its finding.
(b) The peer review committee shall give the nurse the
opportunity to offer rebuttal information and to submit a
rebuttal statement of reasonable length. Any rebuttal statement
must be included with any information disclosed by the committee
under Section 303.007.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
113, Sec. 17, eff. May 20, 2005.
Sec. 303.009. RETALIATORY ACTIONS. (a) A nursing peer review
committee, a person participating in peer review, or an
organization named as a defendant in a civil action or subjected
to other retaliatory action as a result of participation in peer
review may file a counterclaim in a pending action or prove a
cause of action in a subsequent suit to recover defense costs,
including court costs, reasonable attorney's fees, and actual and
punitive damages if the suit or retaliatory action is determined
to be frivolous, unreasonable, without foundation, or taken in
bad faith.
(b) A nursing peer review committee member or a person
participating in peer review under this chapter named as a
defendant in a civil action or subjected to other retaliatory
action as a result of participation in peer review may use
information that is otherwise confidential under this chapter to
defend the civil action or a civil action that alleges
retaliation for the person's participation in peer review.
(c) A person who discloses information under Subsection (b) does
not by that action waive the privilege of nondisclosure of all
other information privileged under this chapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 303.010. CIVIL LIABILITY. (a) A cause of action does not
accrue for an act, statement, determination, or recommendation
made, or act reported, without malice, in the course of peer
review against:
(1) a member, agent, or employee of a nursing peer review
committee; or
(2) a school of nursing, hospital, nursing home, home health
agency, health science center, or other health care facility, the
nursing staff of such a facility, or a nursing association or
other organization.
(b) A person who, without malice, provides records, information,
or assistance to a nursing peer review committee:
(1) is not liable in a civil action based on the person's
participation or assistance in peer review; and
(2) may not be subjected to retaliatory action as a result of
that act.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 303.011. EVALUATION BY COMMITTEE. (a) In evaluating a
nurse's conduct, the nursing peer review committee shall review
the evidence to determine the extent to which a 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.
(b) The nursing peer review committee shall report a deficiency
in care that the committee determines was the result of a factor
beyond the nurse's control to a patient safety committee for
evaluation. The patient safety committee shall evaluate the
influence of the factors on the conduct of the nurse being
evaluated and on the practice of other nurses within the entity
that established the committee. The committee shall report its
findings to the nursing peer review committee.
Added by Acts 2003, 78th Leg., ch. 876, Sec. 12, eff. June 20,
2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
803, Sec. 20, eff. September 1, 2007.