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Peer Review Statutes: Protection From Discoverability
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Reprinted with permission from:
JCAHO Advisor for Behavioral Health Care Providers, June 1999, 3(6), pp 1-4.
While this article focuses on behavioral health, the comments are fully applicable to health care in general.

It's a thorny issue, and one that lawmakers are not likely to resolve anytime soon: How can behavioral health care organizations share valuable data about sentinel events without opening themselves up to a litigation nightmare?

Legal protection varies from state to state, but most laws are murky at best in protecting providers from such moves as sharing a root cause analysis or corrective action plan with the Joint Commission. According to a 1998 survey by the American Health Lawyers Association, just three states (and the Department of Defense) appear to specifically protect disclosure of sensitive information to the Joint Commission: Iowa, Georgia, and Maine, with Maine's laws possibly applying to root cause analysis. The rest are either a mixed bag or no protection at all.

"There continues to be serious concern about submitting information about a sentinel event to the Joint Commission and then having a plaintiff's attorney request that same information because statutory protection has been waived," says Nancy Rapp Guillom, RN, CPHQ, FASHRM, a risk manager for Norton Healthcare in Louisville KY.

"Right now, people are sort of peeking out from behind garbage can lids," says Guillom, who also is chair of the American Society for Healthcare Risk Management's JCAHO Task Force.

But Donna Nowakowski, the JCAHO's director of state relations, says there is no definitive answer to the question of how thoroughly peer review laws cover the Joint Commission. For example, the JCAHO took its own survey, and found that most were able to share information with the accreditor if they used one of a handful of options designed to protect confidentiality, among the:

  • The facility can identify (in writing) the Joint Commission as a participating entity in its peer review or quality improvement process;
  • The facility can appoint the Joint Commission to its peer review or quality improvement committee;
  • The facility can pay the Joint Commission to come on-site and review its process for conducting a root cause analysis. In this case the JCAHO does not see any specifics related to the sentinel event itself.
Even so, in a letter to accredited organizations, JCAHO director Dr. Dennis O'Leary, MD, cautions, "Absent new state or federal legislative protections, there are no absolute guarantees that these alternatives will ensure the confidentiality of sentinel event-related information shared with the Joint Commission."

Also, few organizations are using the options, and the JCAHO has acknowledged that only a tiny portion of its providers actually self-report sentinel events.

But the face of peer review law is changing. While Louisiana currently lacks protection for Joint Commission disclosure, Nowakowski says she expects lawmakers to pass such legislation soon. Likewise, she says Maryland passed a bill last year protecting information shared with accreditors.

On the accreditation horizon

The JCAHO has backed off somewhat from its self-reporting requirements with regards to sentinel events (see April 1999 issue). The option of reporting only the process of developing a root cause analysis, considered by some to be the most benign choice, is a pilot project that will only stay in effect through October. After that, it may continue or the JCAHO may eliminate the option.

In a letter dated October 1998, O'Leary says the Joint Commission is "actively pursuing" federal and state legislation to enhance protection for organizations that self-report sentinel events.

Nowakowski acknowledges that federal legislation is the best way to provide uniform protection to all kinds of facilities in every state.

"Then you could be assured that it's going to be consistently applied," she says.

But the reality is that such protection — at the federal level, anyway — is not exactly around the corner. In fact, newly proposed legislation could make the situation even more sticky.

The Patient Protection Act of 1998 was federal legislation meant in part to address confidentiality issues. Though the House passed it, the Senate tabled the act.

The law would have provided peer review privilege at the federal level, meaning information shared with an accreditor would not be automatically available to an attorney.

Instead, new legislation in the House and Senate calls for mandatory reporting of restraint-related deaths and serious injuries.

The JCAHO has expressed support for some principles in the Freedom From Restraint Act of 1999, and touted the use of such shared information in its Sentinel Event Alert newsletter.

But the accreditor also expressed concern about the need for protection from litigation.

"Reporting is only the first step toward substantive improvements in protecting patients, rights and improving their safety, but to get there, health care organizations must be able to examine deaths fully and honestly in a nonpunitive environment," says O'Leary. "The confidentiality of these in-depth analyses must be carefully protected in order to foster and assure full exploration and understanding of all contributing factors."

A happy medium?

Guilliom agrees that a more thorough investigation of sentinel events could lead to improvements in behavioral health care.

"If legislative protection could be guaranteed, I think that anonymous reporting to an independent, objective data repository would take off," she says.

In fact, she points out, investigation of sentinel events and the analysis of trends and patterns are nothing new.

"One benefit of the root cause analysis process is to increase awareness of a health care team approach to problem solving," she says.

Guilliom says she is unaware of any examples of facilities that experienced an adverse effect as a result of self-reporting sentinel events. However, the opposite is also true: "I am unaware of any facilities that voluntary report, because there is no clear protection, except in a few states," she adds.

As a health care risk manager, Guilliom offers this "wish list" for sharing information in the spirit of reducing sentinel events:

  • Develop an independent data repository, separate from the JCAHO, and forward into it process improvements that followed sentinel events;
  • Using this data, publish a list of "best practices" that organizations can adopt to reduce the risk of the reported sentinel event occurring in their facilities;
  • Use the data to assist JCAHO in developing and re-assessing survey standards to improve patient safety.
"The system should become proactive, nonpunitive, nonthreatening, and provide meaningful processes for maintaining and promoting quality patient care," Guilliom says.



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