What is a nursing board “safe harbor” case?

Suppose you employ a number of nurses who have gotten together and decided that they do not want to follow orders and have claimed something called “safe harbor. ” They claim that “patient safety will be impacted” if they do what is asked of them, and therefore content they cannot be fired for refusal to do the task.

You aren’t so sure. There is some reason to think the nurses just don’t want to do a job. Maybe the nurses have developed some personal animosity with a supervisor and are claiming “safe harbor” as a sham, to cover what is at its core, a personal disagreement.

This is an example of what is called a “Type I and Type II Error Problem.”If you don’t believe the nurses, and the objection turns out to be true, perhaps you fired the nurses and a patient was in fact harmed, that is a Type I error of omission. But, if you act on every single objection out of fear what could happen, and it turns out the nurses were not being sincere, that is a Type II error. Then you may be taken advantage of and waste resources.

Note, too, that all errors are not created equally, “patient safety” would tend to lead you to want to err on the side of caution. You might also be hit with a wrongful discharge lawsuit if you do not take the nurses complaints seriously. What do you do?

In Texas, the Nursing Board has come up with a system for addressing these complaints, called “Safe Harbor Peer Review.” These will vary by state, but under Texas law:

Safe Harbor Nursing Peer Review

If a nurse feels he/she is being asked to accept an assignment that would potentially cause the nurse to violate his/her duty to a patient, the nurse may be able to invoke “safe harbor,” depending on whether or not the nurse’s employer meets requirements that would make it mandatory for the employer to have a nursing peer review plan in place. This is established Chapter 301, Nursing Practice Act; Chapter 303, Nursing Peer Review, and in 22 TAC §217.20, Safe Harbor Peer Review and Whistleblower Protections. Safe harbor has two effects related to the nurse’s license:

1. it is a means by which a nurse can request a nursing peer review committee determination of a specific situation in relation to the nurse’s duty to a patient; and
2. it affords the nurse immunity from Board action against the nurse’s license if the nurse invokes Safe Harbor in accordance with 22 TAC §217.20. For the nurse to activate this immunity status, the nurse must notify the assigning supervisor at the time the assignment request is made, and the nurse must submit the required information in writing (or verbally if due to immediate patient care needs) to this supervisor, as specified in 22 TAC §217.20(d)(2)(B) & (3) or on the Board’s Safe Harbor Quick Request Form. Do not submit this form to the Board.

The “peer review” committee takes the burden off the employer to figure out the correct path forward. This Texas rule does not apply to all employers of nurses. An employer must first be a large enough employer to have a “peer review” committee. Under Tex. Occ. Code§303.001 et seq., an employer with less than eight nurses would not qualify for the Safe Harbor and Peer Review requirements stated above.

Bad faith Invocation of safe harbor

The Safe Harbor cannot be invoked in “bad faith”:

22 Tex. Admin. Code § 217.20 – Safe Harbor Nursing Peer Review and Whistleblower Protections

(e) Safe Harbor Protections.

(1) To activate protections outlined in TOC §303.005(c) and paragraph (2) of this

subsection, the nurse shall:

(A) invoke safe harbor in good faith;

(f) Exclusions to Safe Harbor Protections.

(1) A nurse's protections from disciplinary action by the Board under subsection

(e)(2) of this section do not apply to:

(A) the nurse who invokes safe harbor in bad faith;

(C) conduct unrelated to the reason for which the nurse requested safe

harbor.

Rule 22 Tex. Admin. Code § 217.20(a)(2) further defines “bad faith” as “Knowingly or recklessly taking action not supported by a reasonable factual or legal basis” . . . “misrepresenting facts surrounding events under review” and “acting out of malice or personal animosity.”

If you don’t employ eight nurses and therefore are not required to set up a peer review committee, you could hire outside companies to provide nurses with a similar peer review process. Just include it as part of the employment manual, which would seem to provide employers better protection against whistleblower lawsuits.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.