Idaho Peer Review Privilege

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by Kim Stanger

Idaho has enacted a broad privilege that protects the confidentiality of credentialing, quality improvement, and similar peer review activities by Idaho hospitals and other health care entities. The statute encourages participation and protects the integrity of such peer review activities by ensuring that peer review communications and proceedings remain confidential, and that participants are immune from liability.

Application. The privilege applies to “peer review” activities conducted by “healthcare organizations”. (I.C. § 39-1392).

“Health care organization” means a hospital, in-hospital medical staff committee,1 medical society, managed care organization, licensed emergency medical service, group medical practice, or skilled nursing facility.

(I.C. § 39-1392a(3)).

“Peer review” means the collection, interpretation and analysis of data by a health care organization for the purpose of bettering the system of delivery of health care or to improve the provision of health care or to otherwise reduce patient morbidity and mortality and improve the quality of patient care. Peer review activities by a health care organization include, without limitation:
(a) Credentialing, privileging or affiliating of health care providers as members of, or providers for, a health care organization;
(b) Quality assurance and improvement, patient safety investigations and analysis, patient adverse outcome reviews, and root-cause analysis and investigation activities by a health care organization; and
(c) Professional review action, meaning an action or recommendation of a health care organization which is taken or made in the conduct of peer review, that is based on the competence or professional conduct of an individual physician or emergency medical services personnel where such conduct adversely affects or could adversely affect the health or welfare of a patient or the physician’s privileges, employment or membership in the health care organization or in the case of emergency medical services personnel, the emergency medical services personnel’s scope of practice, employment or membership in the health care organization.

(I.C. § 39-1392a(11)). Read more

Draft of the Revised National Practitioner Data Bank Guidebook Available for Comment

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by Kelly McIntosh

Marking the first update since September 2001, the Health Resources and Services Administration (“HRSA”) division of the Department of Health and Human Services (“HHS”) has issued a draft of the revised National Practitioner Data Bank (“NPDB”) Guidebook. The release of the draft Guidebook was announced in the Federal Register on December 27, 2013 and the period to submit comments to the draft is ongoing until January 31, 2014.

The revised Guidebook includes expanded and improved examples about reporting to and querying the NPDB, live links to cited statutes and regulations, and useful tables explaining NPDB policies. Also incorporated in the revised Guidebook are legislative and regulatory changes adopted since the last edition. Perhaps the most significant regulatory change incorporated in the revised Guidebook is the merger of the NPDB and the Healthcare Integrity and Protection Data Bank (“HIPDB”) which occurred on May 6, 2013 pursuant to the Patient Protection and Affordable Care Act (“ACA”).

The revised Guidebook also expands on certain areas where there has previously been uncertainty, including when an “investigation” by a health care entity has commenced. On that topic, the revised Guidebook includes additional details and examples regarding when an investigation has commenced. Specifically, the draft Guidebook provides that “an investigation is not limited to a health care entity’s gathering of facts. An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decisionmaking authority takes a final action or formally closes the investigation.” Read more

Medical Staff Member on Hospital Boards: Limits in New CoPs

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Last month, CMS issued new conditions of participation (“CoPs”) for hospitals and critical access hospitals (“CAHs”) to be effective July 16, 2012. (77 F.R. 29034, dated 5/16/12). Among others, 42 CFR § 481.12 will require that the hospital’s governing board “must include a member, or members, of the hospital’s medical staff.” We have confirmed with CMS, however, that there are limits to this new requirement.

1. Does Not Apply to CAHs. The new requirement only appears in the hospital CoPs, not in the corresponding CAH CoPs. (See 42 CFR 485.627). The new requirement for physician participation on the hospital’s governing body was not intended to apply to CAHs.

2. Does Not Apply Where State Law Establishes Board Membership. In some cases, state or local laws may control board membership. For example, state law may require that board members of county hospitals or hospital districts are elected or appointed by another government agency. The new CoPs were not intended to preempt such laws. In such cases, the CoPs regarding medical staff representation on the governing body would not apply, and CMS would expect the hospital to follow the laws of its particular locality.

3. The Physician May Serve in a Non-Voting Capacity. Even where they do apply, the new CoPs do not specify how hospitals should choose the medical staff representative, nor do they specify the particular role that the medical staff representative should fill on the governing body. CMS intends that hospitals have flexibility in addressing these issues. For example, the hospital may appoint the physician to the board in a non-voting or ex officio capacity. Limiting the physician board member’s voting rights may be appropriate given conflicts of interest that a physician board member may have since many board decisions will directly impact the physician’s practice.

We understand that CMS may be taking action to clarify these issues for providers.

This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.