New Minor Incident Rules for Peer Review

The Board of Nursing just passed new rules for Minor Incidents. This information is found at the Texas Register. I think there is a difference between what the Nurse Practice Act requires for reporting by Peer Review Committees and what the new Board rules state. First the new rule as reported in the Texas Register and then I compare the two:

§217.16. Reporting of Minor Incidents.

(a) Purpose. The Board believes protection of the public is not enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act or a board rule. This is particularly true when there are mechanisms in place in the nurse's practice setting to identify nursing errors, detect patterns of practice, and take corrective action to remediate deficits in a nurse's judgment, knowledge, training, or skill. This rule is intended to provide guidance to nurses, nursing peer review committees and others in determining whether a nurse has engaged in conduct that indicates the nurse's continued practice would pose a risk of harm to patients or others and should [clarify what constitutes a minor incident and when a minor incident need not] be reported to the board.

(b) Definition [and Scope]. A "minor incident" as defined under Nursing Practice Act §301.401(2) means [ is defined by Texas Occupations code §301.419(a) as"] conduct by a nurse that may be a violation of the Nursing Practice Act or a Board rule but does not indicate the Nurse's continued [that does not indicate that the continuing] practice [ of nursing by an affected nurse] poses a risk of harm to a patient [the client] or another [ other] person.["]

(c) Factors to be Considered in Evaluating if Conduct Must Be Reported to the Board.

(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct indicates the nurse:

(A) ignored a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;

(B) lacked a conscientious approach to or accountability for his/her practice;

(C) lacked the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or

(D) indicates the nurse has engaged in a pattern of multiple minor incidents that demonstrate the nurse's continued practice would pose a risk of harm to patients or others.

(2) Evaluation of Multiple Incidents.

(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.

(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse must be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period must be reported to the Board.

(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm that cannot be remediated, the nurse should be reported to the Board or Peer Review Committee.

(3) Other factors that may be considered in determining whether a minor incident should be reported to the Board are:

(A) the significance of the nurse's conduct in the particular practice setting; and

(B) the presence of contributing or mitigating circumstances, including systems issues or factors beyond the nurse's control, in relation to the nurse's conduct.

(d) Conduct Required to be Reported.

(1) A nurse must be reported to the board or to a nursing peer review committee for the following conduct:

(A) An error that contributed to a patient's death or serious harm.

(B) Criminal Conduct defined in Texas Occupations Code §301.4535.

(C) A serious violation of the board's Unprofessional Conduct rule §217.12 of this title (relating to Unprofessional Conduct) involving intentional or unethical conduct including but not limited to fraud, theft, patient abuse or patient exploitation.

(D) A practice-related violation involving impairment or suspected impairment by reason of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity required to be reported in accordance with §301.410(b) of the Nursing Practice Act and §217.19(g) of this title (relating to Incident Based Nursing Peer Review and Whistle Blower Protections).

(2) If a nursing peer review committee determines that a nurse engaged in the conduct listed in subsection (c)(1)(A) - (D) of this section the committee must report the nurse to the board. 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 their belief that the nurse's conduct failed to meet each of the factors in paragraph (1)(A) - (D) of this subsection.

>[(c) Exclusions. The following conduct shall not be deemed a minor incident under any circumstance:]

[(1) An error that contributed to a patient's death or serious harm.]

[(2) Criminal Conduct defined in Texas Occupations Code §301.4535.]

[(3) A serious violation of the board's Unprofessional Conduct Rule (22 TAC §217.12) involving intentional or unethical conduct such as fraud, theft, patient abuse or patient exploitation.]

[(d) Criteria for Determining if Minor Incident is Board-Reportable.]

[(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct:]

[(A) creates a significant risk of physical, emotional or financial harm to the client;]

[(B) indicates the nurse lacks a conscientious approach to or accountability for his/her practice;]

[(C) indicates the nurse lacks the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or]

[(D) indicates a pattern of multiple minor incidents demonstrating that the nurse's continued practice would pose a risk of harm to clients or others.]

[(2) Evaluation of Multiple Incidents.]

[(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.]

[(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse shall be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period shall be reported to the Board.]

[(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm, the nurse should be reported to the Board or Peer Review Committee.]

(e) Conduct Normally Not Required to Be Reported to the Board [ Special Considerations in Evaluating Incidents].

(1) An incident should be evaluated [ In evaluating whether a nurse's conduct constitutes a minor incident or should be reported] to determine if [the Board, the following should be considered]:

(A) [(1)] the [If an ] incident is primarily the result of factors beyond the nurse's control and addressing those factors is more likely to prevent the incident from reoccurring; or [, a presumption should exist that the incident is a non-reportable minor incident.]

(B) [(2)] the incident was [ Multiple factors may contribute to medication errors. For the purposes of this rule,] a medication error caused primarily by factors beyond the nurse's control rather than [should be evaluated to determine whether the error resulted from] failure of the nurse to exercise proper clinical judgment [or if there were other extraneous factors that were the primary cause of the error]. Board Position Statement 15.17 Texas Board of Nursing/Board of Pharmacy Joint Position Statement/Medication Error provides guidelines for evaluating medication errors found at http://www.bon.state.tx.us/practice/position.html#15.17.

(2) If either of the conditions listed in paragraph (1) of this subsection are present, a presumption should exist that the nurse's conduct does not indicate the nurse's continued practice poses a risk of harm to a patient or another person and does not need to be reported to the board.

(f) Documentation of Minor Incidents. A minor incident should be documented as follows:

(1) A report must [shall] be prepared and maintained for a minimum of 12 months that contains a complete description of the incident, patient record number, witnesses, nurse involved and the action taken to correct or remedy the problem.

(2) If a medication error is attributable or assigned to the nurse as a minor incident, the record of that incident should indicate why the error is being attributed or assigned to the nurse.

(g) Nursing Peer Review Committee.

(1) If a report is made to the peer review committee, the committee must investigate and conduct incident-based nursing peer review in compliance with Nursing Peer Review Law in Texas Occupations Code §303 and §217.19 of this title.

(2) Review of a nurse's conduct or practice may be accomplished by either an informal work group of the nursing peer review committee as provided under §217.19(e) of this title or the full nursing peer review committee prior to a report being made to the board.

(3) [(1)] A nursing peer review committee receiving a report involving a minor incident or incidents must [shall] review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continuing to practice poses a risk of harm to patients [clients] or other persons and whether remediation would be reasonably expected to adequately mitigate such risk if it exists. The committee must [shall] consider the special considerations set out in subsection (c) [(d) ] of this section.

[(2) Regardless of the number of incidents, the facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee Peer review of minor incidents under this Rule may be conducted by a special workgroup of the nursing peer review committee. The workgroup may conduct its review using an informal process as long as the nurse has opportunity to meet with the workgroup and provided the nurse is given an opportunity to be peer reviewed in accordance with §217.19 of this title (relating to Incident-Based Nursing Peer Review) prior to any report being made to the Board.]

(4) [(3)] The nursing [If the ] peer review committee [determines either that the nurse's continuing to practice does not pose a risk of harm to clients or other persons or that remediation could reasonable be expected to adequately mitigate any such risk, the committee] need not report the nurse to the Board if the peer review committee determines that either:

(A) the nurse's continuing to practice does not pose a risk of harm to patients or other persons; or

(B) [provided any] remediation could reasonably be expected to adequately mitigate any such risk and the nurse [is] successfully completes the remediation [completed].

(5) If a nurse terminates employment while undergoing remediation activities as directed by a peer review committee under paragraph (3) of this subsection, the peer review committee may either:

(A) report the nurse to the BON;

(B) report to the peer review committee of the new employer, if known, with the nurses written consent;

(C) re-evaluate the nurse's current conduct to determine if the nurse did complete sufficient remediation and is deemed safe to practice.

(h) A Right to Report. Nurses and other persons are encouraged not to report minor incidents to the Board unless required to do so by this rule, but nothing in this rule is intended to prevent reporting of a potential violation directly to the Board or to a nursing peer review committee.

(i) Mis-classifying to Avoid Reporting. [Bad Faith Determination.] Intentionally mis-classifying an incident [in bad faith] to avoid reporting may result in violation of the mandatory reporting statute.

(j) Chief Nursing Officer or Nurse Administrator [ Officer's] Responsibility. The Chief Nursing Officer, Nurse Administrator or registered nurse by any title who is responsible for nursing services [chief nursing officer] shall be responsible for taking reasonable steps to assure that minor incidents are handled in compliance with this rule and any other applicable law.

(k) Nurses Reported to the Board. If a nurse is reported to the board, the board shall review the nurse's conduct to determine if it indicates the nurse's continued practice poses a risk of harm to a patient or another person. If it does not the board may elect not to proceed with filing formal charges.


Now the part I think is inconsistent: The Board rule is cited in italics and then the Nurse Practice Act Chapter 301.401 and 301.403 in bold, followed by my comments.

(c) Factors to be Considered in Evaluating if Conduct Must Be Reported to the Board.Sec. 301.403. Duty of Peer Review Committee to Report and Conduct Subject to Reporting.

The nurse need not be reported unless the conduct indicates that the nurse (A) ignored a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;

A Peer Review Committee is not required to report a nurse to the Board unless the nurse has engaged in conduct subject to reporting and the conduct subject to reporting means that a nurse(A) violates this chapter or a board rule and contributed to the death or serious injury of a patient;

So, it appears to me that the Board rule is much more broad than the statute. The Board rule allows for reporting if a nurse ignored a risk that either harmed or could have harmed a patient. This means that a nurse is subject to reporting for just the potential of a problem. The statute states that there must be a violation of a board rule AND the conduct must have contributed to the DEATH or SERIOUS INJURY of a patient. I do not understand the change from the statute requirements especially when the Board's preamble to the proposed rule states, "the board does not believe the protection of the public is enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act."