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New Minor Incidents Rule of the Texas Board of Nursing

Texas medical license defense attorneyNot all errors made by Texas nurses are to be reported to the Texas Board of Nursing (BON). There are specific and limited circumstances in which an error or omission by a nurse does not need to be reported to the Board. The Board staffs 124 full-time employees and licenses nearly half a million practitioners. The reporting of every minor incident to the Board would likely overwhelm its ability to properly carry out its function.

New Minor Incidents Rule of the Texas Board of Nursing

The Texas Board of Nursing (BON) recently repealed and replaced its Minor Incident Rule. A "minor incident" is defined as: "conduct by a nurse that may be a violation of the Texas Nursing Practice Act or a Board rule but does not indicate the nurse’s continued practice poses a risk of harm to a patient or another person." 22 TAC § 217.16(a). The term can be understood as a minor error or a minor violation of the Texas Nursing Practice Act or Board rule.

The new rule, effective as of May 20, 2018, provides a stepwise approach in evaluating if an error is a minor incident or an incident that must be reported to the Board. Though the new rule provides steps, it also is to be read and considered in its entirety, not in fragments.

The new Minor Incident Rule details the process for evaluating if an error constitutes a minor incident, and thus need not be reported to the Board. Three factors must be reviewed:

  • The nurse’s conduct.
  • Factors viewed to be beyond the nurse’s control, and
  • The relationship between the two that influenced or impacted the nursing practice breakdown.

22 TAC § 217.16(d). First, "the nurse’s conduct shall be evaluated to determine whether deficit(s) in knowledge, judgment, skills, professional responsibility, or patient advocacy contributed to the incident." 22 TAC § 217.16(d)(1). If it is determined that the nurse’s practice has no deficits in the aforementioned areas, the error may not even constitute a minor incident. 22 TAC § 217.16(d)(1)(A).

If however, the nurse is found to have a deficit and that deficit played a role in the error, it must then be determined if remediation will address the identified deficit:

  1. If remediation will address the deficit(s), a remediation plan shall be developed to address the deficit(s).
  2. If remediation will not address the deficit(s), then the error cannot be considered a minor incident and the nurse must be reported to the nursing peer review committee or, in practice settings with no nursing peer review, to the Board.
  3. If the determination is that the nurse could be remediated and the nurse does not complete the required remediation, then the nurse must be reported to a nursing peer review committee or the Board.

22 TAC § 217.16(d)(1)(B)(i)-(iii).

Next the "presence of factors beyond the nurse’s control" must be evaluated. If such factors are found, they must be "reported to the patient safety committee, or if the facility does not have a patient safety committee, to the chief nursing officer." 22 TAC § 217.16(d)(2).

Further, when it is determined there were factors beyond the nurse's control that contributed to the nurse's error, "the relationship between the nurse’s contribution to the incident and the factors beyond the nurse’s control shall be evaluated." 22 TAC § 217.16(d)(3). Under the new rules analysis, if the error only occurred because of factors beyond the nurse’s control then the error may not even rise to the level of a minor incident.

It is critical for mandatory reporters, including Texas nurses, nursing peer review committees, nursing education programs, employers of nurses, certain professional associations and organizations, state agencies, and liability insurers to thoroughly understand the new Minor Incident Reporting rule.

Issues with Your Texas Nursing License

If you have been notified of a complaint filed against you with the Texas Board of Nursing, BERTOLINO LLP can help. We are experienced BON license defense attorneys and we know how to navigate BON's complaint process. We are prepared to represent you at any legal hearing or proceeding regarding your professional license.

Contact us today or call (800) 210-0126 and schedule a case evaluation.

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Attorney Tony R. Bertolino is the Managing Partner with Bertolino LLP. Our law firm has been able to help people across the state of Texas. If you need an experienced lawyer to represent you, contact Bertolino LLP today.

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