HELP! NEED INFORMATION ABOUT "SAFE HARBOR ACT"!

From Texas State Board of Nursing website:

Mandatory Overtime/Consecutive Shifts - How many consecutive hours or shifts can a nurse work? Can an employer force a nurse to work longer than scheduled, or to work overtime?

The BNE has no jurisdiction over work-place issues, such as scheduling or number of hours worked (consecutively or in a given time period). In addition, the BNE has no jurisdiction over facilities/employers. Though some facility licensing laws may permit use of "mandatory overtime" to meet staffing needs on an interim basis (check with the agency that licenses your facility), this does not diminish the duty of each individual nurse to "know and comply" with the Nursing Practice Act (NPA) and Board Rules. The NPA and rules have the force of law for nurses; any nurse who violates some part(s) of the NPA or rules is subject to possible reporting to the Board and possible disciplinary action on his/her license.

Rule 217.11 Standards of Nursing Practice is the primary rule applied to nursing practice issues. Two standards applicable to most practice questions, regardless of practice setting, include:

Standard 217.11(1)(B) requires each nurse to maintain a safe environment for clients and others, and

Standard 217.11(1)(T) holds each nurse accountable to accept only assignments that are within the nurse's ability. If a nurse accepts an assignment, he/she is responsible for adhering to the NPA and rules in delivering safe patient care.

Standard (1)(B) establishes a nurse's 'duty' to his/her patients. Board Position Statement 15.14 Duty of A Nurse in Any Practice Setting further explains that this "duty" supersedes any facility policy or physician order. If a nurse knows, or should have known, that a client was potentially in danger, the nurse's duty is always to act in the best interest of the patient.

In relation to overtime and/or consecutive hours worked, the nurse has a duty to recognize when he/she is unfit to practice secondary to physical, mental, and/or emotional fatigue. Nursing judgment and provision of nursing care may be impaired if a nurse is physically, mentally or emotionally exhausted, which could lead to nursing errors.

For nurses who are in charge nurse or management positions, Standard 217.11(1)(S) also applies. This standard is the "companion" standard to (1)(T), as it requires the nurse who is supervising other nurses to "make assignments" that take into account the educational preparation, knowledge, skills, and abilities of the nurses for whom the supervisor is administratively responsible. This does NOT mean other nurses are working under the supervisor's license, or that the supervisor is responsible for every aspect of care delivered by other staff nurses. Assignment to other licensed nurses does require forethought and adequate supervision [standard 217.11(1)(U)], but from a licensure standpoint, the responsibility for overall patient care is the responsibility of the staff nurse accepting the assignment.

You should also become familiar with Rule 217.20 "Safe Harbor Peer Review" in conjunction with the Safe Harbor form under the "Forms" area on the web page.

Here is the infor on the link referenced in the previous post from Texas State Board of Nursing:

Texas Administrative Code

Next Rule>>

TITLE 22 EXAMINING BOARDS

PART 11 BOARD OF NURSE EXAMINERS

CHAPTER 217 LICENSURE, PEER ASSISTANCE AND PRACTICE

RULE 217.20 Safe Harbor Peer Review for Nurses

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(a) Texas Occupations Code 303.005 requires a person who regularly employs, hires or contracts for the services of at least ten (10) nurses to permit a nurse to request Peer Review when requested to engage in conduct that the nurse believes is in violation of his/her duty to a patient. "Duty to a patient" means conduct, including administrative decisions directly affecting a nurse's ability to comply with that duty, required by standards of practice or professional conduct adopted by the Board. A nurse requesting safe harbor in compliance with 303.005 and these rules is afforded the protections outlined in 303.005©.

(b) Minimum Due Process. The minimum due process requirements of rule 217.19 do not apply to Safe Harbor Peer Review except in those circumstances outlined in rule 217.20(e)(2). The peer review committee shall exclude from the committee any persons or person with administrative authority for personnel decisions directly affecting the nurse. The nurse requesting safe harbor shall be permitted to:

(1) appear before the committee;

(2) ask questions and respond to questions of the committee; and

(3) make a verbal and/or written statement to explain why he or she believes the requested conduct would have violated a nurse's duty to a patient.

© Safe Harbor Protections. To activate protections outlined in Texas Occupations Code 303.005, the nurse shall:

(1) Invoke Safe Harbor in good faith. "Good faith" means that the nurse believes that the requested conduct violates a nurse's duty to a patient and that belief is one a reasonable nurse could hold.

(2) At the time the nurse is requested to engage in the activity, notify the supervisor making the assignment that the nurse is invoking Safe Harbor.

(3) At the time of supervisor notification, also submit a written request for Safe Harbor utilizing the Safe Harbor form provided on the Board's web site or on a form that includes a minimum of the following information:

(A) the conduct assigned or requested, including the name and title of the person making the assignment or request;

(B) a description of the practice setting (e.g., the nurse's responsibilities, resources available, extenuating or contributing circumstances impacting the situation);

© a detailed description of how the conduct would have violated the nurse's duty to a patient or any other provision of the Nursing Practice Act and Board Rules. If possible, reference the specific standard (Rule 217.11) or other section of the Nursing Practice Act and/or Board rules the nurse believes would have been violated;

(D) any other copies of pertinent documentation available at the time. Additional documents may be submitted to the committee when available at a later time; and (E) the nurse's name, title, and relationship to the supervisor making the assignment or request.

(4) If the nurse does not submit the initial request for Safe Harbor using the form on the BNE web site, the facility and nurse shall adhere to the Safe Harbor process as outlined on the BNE form.

(d) Safe Harbor Processes

(1) The following timelines shall be followed:

(A) the peer review committee shall complete its review and notify the nurse administrator within 14 days of when the nurse requested Safe Harbor;

(B) within 48 hours of receiving the committee's determination, the nurse administrator shall review these findings and notify the nurse requesting peer review of both the committee's determination and whether the administrator believes in good faith that the committee's findings are correct or incorrect.

(2) If Safe Harbor was invoked to question the medical reasonableness of a physician's order, the medical staff or medical director shall determine whether the order was reasonable. Consideration for patient safety should contribute to the time line for implementing a decision, but shall not exceed the time limits specified in this section.

(3) The nurse invoking Safe Harbor is responsible for keeping a copy of the request for Safe Harbor, and shall be given a copy of the committee's determination and the nurse administrator's review, if separate from the Safe Harbor form.

(e) Exclusions to Safe Harbor Protections

(1) The protections provided under subsection © do not apply to the nurse who invokes Safe Harbor in bad faith, or engages in activity unrelated to the reason for the request for Safe Harbor and that constitutes reportable misconduct of a nurse, even if this activity occurs during the time a peer review committee is considering the nurse's request for Safe Harbor.

(2) In addition to consideration of the nurse's request for Safe Harbor, the peer review committee may consider whether an exclusion to Safe Harbor peer review applies, and evaluate whether a nurse has engaged in reportable misconduct provided such review is conducted in accordance with the requirements of rule 217.19.

(3) If the peer review committee determines that a nurse's conduct was not related to the nurse's request for Safe Harbor and would otherwise constitute misconduct reportable to the Board, the committee shall report the nurse to the Board as required in Texas Occupations Code 301.403.

(f) The Chief Nursing Officer (CNO) of a facility is responsible for knowing the requirements of the Rule and for taking reasonable steps to assure that peer review is implemented and conducted in compliance with this Rule. The CNO is the nurse who is administratively responsible for nursing services.

(g) Texas Occupations Code chapter 303, requires that peer review be conducted in good faith. A nurse who knowingly participates in peer review in bad faith is subject to disciplinary action by the Board under the Texas Occupations Code 301.452(b).

(h) The peer review committee and participants shall comply with the confidentiality requirement of Texas Occupations Code 303.006 and 303.007 relating to confidentiality and limited disclosure of peer review information.

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Source Note: The provisions of this 217.20 adopted to be effective May 12, 2002, 27 TexReg 4019; amended to be effective July 5, 2004, 29 TexReg 6296

link for the safe harbor form: