OCCUPATIONS CODE
CHAPTER 303. NURSING PEER REVIEW
§ 303.001. DEFINITIONS. In this chapter:
(1) "Board" means the Board of Nurse Examiners.
(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.
(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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 553, § 2.018, eff. Feb. 1, 2004.
§ 303.002. GENERAL PROVISIONS REGARDING PEER
REVIEW. (a) Repealed by Acts 2003, 78th Leg., ch. 553, §
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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 553, § 2.019, 3.001(2), eff. Feb. 1,
2004.
§ 303.003. COMMITTEE MEMBERSHIP. (a) A nursing peer
review committee that conducts a peer review that involves only the
practice of professional nursing must have registered nurses as
three-fourths of its members and may have only registered nurses as
voting members.
(b) A nursing peer review committee that conducts a peer
review that involves only the practice of vocational nursing must
have registered nurses and vocational nurses as three-fourths of
its members, 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 both professional nursing and
vocational nursing:
(1) must have registered nurses and vocational nurses
as four-fifths of its members, with registered nurses as
three-fifths of its members;
(2) to the extent feasible must include vocational
nurses as members; and
(3) may have only:
(A) registered nurses and vocational nurses as
voting members when a vocational nurse is being reviewed; and
(B) registered nurses as voting members when a
registered nurse is being reviewed.
(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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 553, § 2.020, eff. Feb. 1, 2004.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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 registered nurses or the Board of
Vocational Nurse Examiners for licensed vocational nurses. The
term includes administrative decisions directly affecting a
nurse's ability to comply with that duty.
(b) If a person who regularly employs, hires, or otherwise
contracts for the services of at least 10 nurses requests one of
those nurses to engage in conduct that the nurse believes violates a
nurse's duty to a patient, the nurse may request, on a form produced
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, or the rules of the board or the Board of
Vocational Nurse Examiners; and
(4) may not be disciplined by the board or the Board of
Vocational Nurse Examiners for engaging in that conduct while the
peer review is pending.
(d) The determinations of the peer review committee shall be
considered in a decision to discipline the nurse, but the
determinations are not binding if a nurse administrator believes in
good faith that the peer review committee has incorrectly
determined a nurse's duty.
(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.
(h) A person is not required to provide a peer review
determination under this section for a request made by:
(1) a registered nurse, unless the person regularly
employs, hires, or otherwise contracts for the services of at least
five registered nurses; or
(2) a licensed vocational nurse, unless the person
regularly employs, hires, or otherwise contracts for the services
of at least five licensed vocational nurses.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 553, § 2.021, eff. June 20, 2003;
Acts 2003, 78th Leg., ch. 876, § 10, eff. Feb. 1, 2004.
§ 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 876, § 11, eff. June 20, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
§ 303.008. REBUTTAL STATEMENT. (a) If a nursing peer
review committee discloses information under Section 303.007(a)
that could result in the reprimand, suspension, or termination of,
or other disciplinary action against, a nurse, or itself recommends
or takes such an action, the committee shall provide the nurse with
a detailed summary of information disclosed or the basis of its
action or recommendation.
(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 the information disclosed by the committee.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 303.011. EVALUATION BY COMMITTEE. 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.
Added by Acts 2003, 78th Leg., ch. 876, § 12, eff. June 20, 2003.
