Do hospitals in your respective states disclose the otherwise confidential and non-discoverable work product of their Morbidity and Mortality Committees / Peer Review Committee (root cause analyses, quality assurance documentation, etc.) to your states' Protection and Advocacy (P & A) organizations upon their request?
If so, how has the P & A utilized the information?Information disclosed to the news media? Have any lawsuits been filed?
Thank you.
Sue O
Guest Jul 09, 2009
11:48 AM
Margie,
This is very timely in Michigan and we did an extensive legal review and found that we are required to provide the data but we are using protective agreements to protect the data. They have an obligation not to provide this info but we have heard in States near the west coast a O&A has told the 'client' to get an attorney.
If you want to discuss this off line, please feel free to contact me directly @ 616-559-5824. I am on a conference call at this time.
We thought it would be useful to have an advocacy view on this issue and one of our P&A clients was kind enough to provide the following response:
We believe we are entitled to peer review records and our opinion has been affirmed by many courts. Here is something I wrote to a hospital atty in N.C. not too long ago:
Both the PAIMI statute and case law support our request for records that might include peer review records: The Protection and Advocacy Act for Individuals with Mental Illness (PAIMI) states that a P&A shall have access to all records of an individual who is a client of the system. 42 U.S. C. 10805. Section 42 U.S.C. 10806 provides: “As used in this section, the term ‘records’ includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.” Four Court of Appeals and the U.S. District Court for the District of Alaska have ruled that Congress’ language in PAIMI grants a P&A access to "all records of . . . any individual," including "reports prepared by any staff of a facility," and that this language “encompasses peer review reports.” Protection & Advocacy For Persons With Disabilities, State Of Ct. vs. Mental Health & Addiction Services, 448 F.3d 119, 125 (2nd cir. 2006); Missouri Protection and Advocacy Services v. Missouri Department of Mental Health, 447 F. 3d 1021 (8th Cir. 2006); Pa. Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000) and Disability law Center of Alaska v. North Star Behavior Health, 2008 U.S. Dist. LEXIS 24790 (March, 2008). In Houstoun, now Justice Alito wrote for the Third Circuit that the plain language of 10806(b)(3)(A) encompasses peer review records because they are “reports prepared by . . . staff of a facility rendering care and treatment” and thus must be disclosed to a P&A system. Further, PAIMI directs that a P&A's authority to seek records as provided in the Act preempts any State law to the contrary. 42 U.S.C. § 10806(b)(2)(C) provides: If the laws of a State prohibit an eligible system from obtaining access to the records of individuals with mental illness in accordance with section 10805(a)(4) of this title and this section, section 10805(a)(4) of this title and this section shall not apply to such system before— (i) the date such system is no longer subject to such a prohibition; or (ii) the expiration of the 2-year period beginning on May 23, 1986, whichever occurs first. See also 42 C.F.R. § 51.31(i) ("State law must not diminish the required authority of the Act"). Thus, after May 23, 1988, P&As are entitled to access the information described in the federal statute regardless of the laws of the State. Numerous courts have upheld this concept of express preemption in similar circumstances, see, e.g., Iowa Prot. & Advocacy Servs. v. Rasmussen, 206 F.R.D. 630 (S.D. Iowa 2002); Wis. Coalition for Advocacy, Inc. v. Czaplewski et al., 131 F. Supp. 2d 1039 (E.D. Wis 2001); Houstoun, 228 F.3d at 428 (involving confidentiality of peer review records); Advocacy Center v. 1&_butinfo=Stalder, 128 F. Supp. 2d at 366 (M.D. La 1999) (involving access to prison records); Oklahoma Disability Law Ctr., Inc. v. Dillon Family & Youth Servs., Inc., 879 F. Supp. 1110, 1111-12 (N.D. Okla. 1995) (regarding psychiatric records). Congress explicitly stated in the PAIMI Act that its purpose is to "(1) ensure that the rights of individuals with mental illness are protected; and (2) to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will . . . (B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred." 42 U.S.C. § 10801(b). Under the Supremacy Clause of the United States Constitution state law must yield to the extent that it conflicts with Congress's establishment of public policy. Please be reminded that P&As must "maintain the confidentiality of such records to the same extent as is required of the provider of such services." 42 U.S.C. § 10806(a).
Hope this is helpful.
Susan
7/1/09 with permission of: Susan H. Pollitt, Attorney Disability Rights North Carolina Champions for Equality and Justice
