US Laws, Codes, Statutes & Cases

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Repealed by Acts 2003, 78th Leg., ch. 553, § 3.001.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 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, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2003, 78th Leg., ch. 553, § 2.020, eff. Feb. 1, 2004;  
Acts 2005, 79th Leg., ch. 113, § 15, eff. May 20, 2005.


	§ 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 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 
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)  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 a registered 
nurse, unless the person regularly employs, hires, or otherwise 
contracts for the services of at least five registered 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;  Acts 
2005, 79th Leg., ch. 113, § 16, eff. May 20, 2005.


	§ 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 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, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2005, 79th Leg., ch. 113, § 17, eff. May 20, 2005.


	§ 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.