VI(a). Professional Review

Professional review seeks to promote patient safety and to further quality health care. Subject to the protections of Colorado’s Professional Review Act, (C.R.S. §12-36.5-101, et. seq.), CMS and/or component establish this professional review process to permit professional review of CMS and/or component members.

Professional review activities include the investigation and review of qualifications, competence, the quality or appropriateness of patient care provided, and the professional conduct of a member, who seeks to subject himself or herself to the authority of CMS and/or component. Professional review shall not concern a Member’s:

• Association or lack of association with a professional organization;
• Fees, advertising, or competitive acts;
• Participation in group health plans, salaried employment, or any manner of delivering health services whether on a fee-for-service or other basis; or
• Association with a particular class of health care provider or professional organization (including support, practice, supervision, training, delegation).

Licensed physicians must constitute a majority of the voting members of any professional review committee.

A member of the PRC, any committee or third party designated by the governing body, a witness or consultant before a PRC, and any person who files a complaint or otherwise participates in the professional review activities shall not knowingly provide false information.

The governing board or authorized entity of the PRCs shall ensure the professional review action was taken within the scope of the professional review process and was taken:

 
• In an objectively reasonable belief that the action was in the furtherance of quality health care;
 
• After an objectively reasonable effort to obtain the facts;
 
• In the objectively reasonable belief that the action taken was warranted by the facts; and
 
• In accordance with procedures that, under the circumstances were fair to the physician.

1. CMS, Component, and Ad Hoc Professional Review Committees (PRCs)
1. Authority. The Governing Board(s) of CMS and/or the component authorizes the CMS PRC, Component PRC, and Ad Hoc PRC, individually and collectively, to conduct professional review in substantial compliance with these Bylaws.
 
2. Composition. PRCs shall consist of at least three Members and are subject to composition, eligibility, and terms of office rules as follows:
1. CMS PRC: according to Chapter VI, §13 of these Bylaws.
 
2. Component PRC: defined by each Component Society.
 
3. Ad Hoc PRC: defined by CMS or Component PRC.
 
2. Unified Peer Review Committee (Unified PRC)
 
1. Authority. If the findings of any investigation conducted by CMS PRC, Component PRC, or Ad Hoc PRC indicates that a physician who is the subject of an investigation is lacking in qualifications or competency, has provided substandard care or inappropriate patient care, or has exhibited inappropriate professional conduct, and the PRC takes or recommends any action to adversely affect(1) the subject physician’s membership, affiliation or privileges with CMS and/or the component, the Governing Boards of CMS and/or component authorizes the Unified PRC and its Members, individually and collectively, to conduct appeals and hearings to consider the findings and recommend action to the Judicial Council in substantial compliance with these Bylaws.
 
2. Composition. The Unified PRC shall consist of the chair of the CMS PRC and the chairs of the Component PRC and Ad Hoc PRC.
 
3. Council on Ethical and Judicial Affairs (Judicial Council)
 
1. Authority. The Governing Board(s) of CMS and/or component authorizes the Judicial Council and its Members, individually and collectively, to conduct appeals from findings and recommendations of the Unified PRC and to take final action in substantial compliance with these Bylaws. The Judicial Council shall be the duly authorized committee for the governing board for CMS and Component. Between meetings, the Council’s Executive Committee may act on behalf of the Council in urgent or non-controversial matters. Such actions shall be subject to confirmation, modification, or rescission by the full Council.
 
2. Composition. The Judicial Council is composed of Judicial Councilors, elected to represent the districts, as provided by Chapter X, §1 - 2 of these Bylaws. Each Judicial Councilor shall have been a resident of the District elected to represent for at least one year preceding election. Permanent relocation from that District automatically creates a vacancy in office. The Chair, Vice-Chair, and any third council member shall constitute the “Executive Committee of the Judicial Council.”
 
4. Disqualification from Participation.

   If any PRC or Council Member is in direct economic competition with the Member under review, has been involved in the matter underlying the review, has a close relationship with the complainant or affected Member, or otherwise has an interest in the outcome of the review, or any other conflict, such Member may not participate on a review committee for such review.

   Any person who participates in any investigation or lower committee decision is disqualified as a member of the Unified PRC and Judicial Council concerning the same review; however, such person may be a witness.

All proceedings, recommendations, records and reports involving PRCs or governing boards are confidential and are not subject to subpoena or disclosure except as provided for in 12-36.5-104(10)(b), C.R.S. Professional review “records” means any and all written, oral, and electronic communications by any person arising from any activities of the professional review committee, including a governing board, including any:

 
• Letters of recommendations;
 
• Complaint, response, or correspondence related to the complaint or response;
 
• Interviews or statements, reports, memoranda, assessments, and progress reports developed to assist in professional review activities;
 
• Assessments and progress reports to assist in professional review activities, including reports and assessments developed by independent consultant in connection with professional review activities; and
 
• Recordings or transcripts of proceedings, minutes, formal recommendations, decisions, exhibits, and other similar items or documents related to professional review activities and typically constituting the records of administrative proceedings.

Records do not include any written, electronic, or oral communications by any person that are otherwise available from a source outside the scope of professional review activities including medical records and other health information.

Complainants shall not be provided professional review records.

Disclosure of professional review information to the CMS Executive Office, Credentials Committee, or another authorized entity including another Component Society shall not violate confidentiality.

1. Requests for Professional Review and Initial Screening
 
1. Requests for Professional Review. Requests for professional review must be in writing and describe specific conduct supporting the request. Any person may request review; however, requests sent on behalf of others may only be accepted for children or incompetent adults. Notwithstanding the foregoing, the CMS PRC, Ad Hoc PRC, or Component PRC may initiate a review.
 
2. Screening and Acceptance. The PRC shall evaluate requests for professional review to ensure jurisdiction. As part of this process, the PRC may, but is not required to interview the affected Member. For any reason, the PRC may decline to initiate professional review or may refer a matter to the informal grievance process described in Chapter VII (b). Matters originating in a hospital may be referred to a hospital review committee. Requests pending before other entities may be declined as duplicative. The PRC will attempt to make determinations within 30 days, but may defer a decision if more time or information is needed.
 
3. Notification. If a request for professional review is declined, a letter, copied to the affected Member, shall be sent notifying the complainant. If a request is accepted, a letter shall notify the complainant and the affected Member. Such letter should explain the confidential nature of the process and may contain appropriate releases. Failure of a complainant to promptly return such releases is cause to terminate review. The affected member should be sent a copy of this Chapter VII of the Bylaws.
2. Investigation. Investigations are conducted by the PRC, component PRC, or an Ad Hoc PRC, which may use third parties and committee designees.
 
1. Effort to Obtain Facts. The investigating PRC shall make a reasonable effort to obtain the facts, including soliciting a written response from the affected Member with a copy of the request for review. The PRC may also, but need not:
 
1. Interview the subject Member
 
2. Interview others
 
3. Evaluate records or obtain outside evaluations
 
4. Research information   The PRC may impose reasonable deadlines for responses to requests from a complainant or the affected Member. Failure or refusal of a Member to cooperate with review proceedings is grounds for adverse action. Failure or refusal of a complainant to cooperate with review proceedings is grounds for terminating the review.
2. Report/Standards. The PRC shall make a report of its investigative findings using the following standards as points of reference:
 
1. AMA Principles of Medical Ethics;
 
2. Established CMS policy; and/or
 
3. Colorado Medical Board’s grounds for disciplinary action.   The relevant inquiry for allegations of substandard care is whether care fell within the range of acceptable care that may be provided by a reasonably careful physician, having the knowledge and skill of physicians practicing in the same field of practice at the same time, under the same or similar circumstances.
 
3. Action. The governing board or authorized entity of the PRC shall ensure that the professional review action was taken within the scope of professional review activities and was taken:
 
• In an objectively reasonable belief that the action was in the furtherance of quality health care;
 
• After an objectively reasonable effort to obtain the facts;
 
• In the objectively reasonable belief that the action taken was warranted by the facts; and
 
• In accordance with procedures that, under the circumstances were fair to the physician.

The PRC may:


 
1. Terminate further review and notify the affected Member of the committee’s decision.
 
2. Issue a letter of concern, admonishment, or reprimand.
 
3. Recommend imposing conditions on, suspending, or revoking Society and/or component membership.
 
3. Hearings
 
1. Adverse Action/Right to a Hearing. If the PRC takes or recommends an action that adversely affects(2) the person’s membership, affiliation or privileges with the authorized entity, the affected Member shall be entitled to a hearing before the Unified PRC. Certain actions are not considered adverse and an affected Member is not entitled to a hearing or appeal including, without limitation, letters of concern, admonishment, or reprimand.
 
2. Notice of Adverse Action/Recommendation. When action is taken or a recommendation made that entitles a Member to a hearing, the Member shall promptly be given notice advising the Member of the following:
1. Any finding or recommendation and the underlying reasons;
 
2. Right to make a written request for a hearing within 30 days of receipt of the notice;
 
3. Failure to submit a written request for hearing within 30 days constitutes a waiver of the right to a hearing and appeal and any other rights to which she may otherwise have been entitled;
 
4. Rights at a hearing as outlined in §4(e) below; and
 
5. After receipt of a timely request for a hearing, the Member will be notified of the date, time, and place of the hearing.
 

 

3. Waiver. In the event a hearing is not requested in writing within 30 days, the Member is deemed to have waived the right to a hearing and appellate review and to have accepted the action. Such action shall become effective immediately upon final approval by the Judicial Council.
4. Notice of Hearing and Statement. The Unified PRC shall schedule hearings and give the affected Member at least 45 days advance written notice of the hearing time, place, and date. The notice shall also include:
 
1. A description of the proposed action and underlying reasons;
 
2. A list of anticipated witnesses;
 
3. A statement of the standards allegedly violated and a concise statement of relevant facts underlying the recommendation or action;
 
4. A list of documents supporting the recommendation or action;
 
5. A list of hearing rights including, without limitation, the right to:
 
• Be present.
 
• Be represented by counsel.
 
• Offer evidence.
 
• Have a record made of the proceedings, copies of which may be obtained by the Member upon payment of any reasonable charges associated with preparation.
 
• Call, examine, and cross-examine witnesses.
 
• Present relevant evidence as determined by the hearing officer.
 
• Submit a written statement at the close of the hearing.
 
• Receive the written recommendation of the Unified PRC, including a statement of the basis for recommendations.

6. The right to a hearing and subsequent appeal is forfeited if the Member fails, without good cause, to appear.

   This statement, the list of supporting documents, and other information may be amended or added to at any time, even during the hearing so long as the additional material is relevant, as determined by the hearing officer.

5. Extension. The PRC or Member may request up to a 30-day delay in commencement of a hearing. The Uniform PRC may grant such delay in its discretion and reschedule the hearing as soon as practicable.
6. Hearing Procedure.
 
1. Hearings should be held as soon as possible after notification, considering convenience of the parties and witnesses.
 
2. A hearing officer should be chosen from the Unified PRC.
 
3. The PRC offers its evidence first, followed by the affected Member, followed by a rebuttal. Such rebuttal may respond to evidence, but may not introduce new issues not previously raised.
 
4. At the hearing the Member and the PRC have the right to:
 
• Be present.
 
• Be represented by counsel or any other person.
 
• Offer evidence.
 
• Have a record made of the proceedings, copies of which may be obtained by the Member upon payment of any reasonable charges associated with preparation.
 
• Call, examine, and cross-examine witnesses.
 
• Present relevant evidence as determined by the hearing officer (regardless the technical rules of evidence).
 
• Submit a written statement at the close of the hearing.
 
• Receive the written recommendation of the Unified PRC, including a statement of the basis for recommendations.
5. Complainants are not entitled to attend hearings except to testify. Nor shall a complainant be provided any other records of professional review.

 

7. Decision. Within 30 days of the hearing, the Unified PRC should issue a written Decision with findings, established by a preponderance of the evidence, and recommendations. Recommendations may include:
 
1. That no action is taken and review terminated.
 
2. A letter of concern, admonishment, or reprimand to the Member.
 
3. Imposing conditions on Society or component membership including participation in an impaired physician program, a program of remedial education, or other program deemed appropriated by the Unified PRC.
 
4. Suspending, or revoking Society membership. A copy shall be provided to the affected Member and the PRC.
4. Appeal/Final Action.
 
1. Right to Appeal. The affected Member and PRC have the right to file a written appeal of the Unified PRC Decision to the Judicial Council within 45 days after the Decision is issued, stating the basis for such appeal. Arguments and evidence that were not presented at the hearing shall not be considered on appeal unless there is good reason for the failure to present them earlier.
 
2. Waiver of Appeal. If a written appeal is not timely submitted, the parties waive the right to appeal and accept the Unified PRC Decision, which is effective immediately upon approval by the Judicial Council.
 
3. Appellate Procedure.
 
 
1. Oral argument shall be set by the Judicial Council as soon as possible after receipt of a written appeal.
 
2. The appealing party shall present first, followed by the opposing party, followed by rebuttal. Presentations may be subject to reasonable time limitations within the discretion of the Council.
3. On appeal, the Member and the PRC have the right to:
 
• Appear before the Judicial Council.
 
• Be represented by counsel or any other person.
 
• Offer oral argument on the record.
 
• Submit written statements.
4. Standard. The Judicial Council may reasonably rely upon the findings and recommendations of PRCs, unless it has knowledge of the review in question, which would cause reliance to be unwarranted.
5. Final Action.

   The Judicial Council shall issue a Final Action explaining its decision to accept, reject, or modify the Unified PRC Decision. Final Action need not be unanimous.
     Final Action by the Judicial Council may include:

 
1. That no action is taken and review terminated.
 
2. A letter of concern, admonishment, or reprimand to the Member.
 
3. Imposing conditions on Society membership including participation in an impaired physician program, a program of remedial education, or other program deemed appropriated by the Council.
 
4. Suspending, or revoking Society membership.   A copy of the Final Action shall be provided to the affected Member, the PRC, and the Unified PRC.
 
5. Reporting.
 
1. Colorado Medical Board (CMB). Final Action shall be reported to the CMB. Additionally, the following adverse review actions must be reported to the CMB within 15 days after such adverse action is taken:
 
1. Review action adversely affecting membership in the Colorado Medical Society or in one of its component societies;
 
2. Surrender of membership privileges:
 
• While the Member is under investigation by CMS or one of its Component Societies, relating to qualifications, competence or professional conduct, or
 
• In return for not conducting such an investigation or proceeding.

Reports must include the Member’s name, reasons for the action, and other information required by the CMB.

The Board may request or subpoena a complete record of all review proceedings, including the findings, recommendations and actions taken.

2. National Practitioner Data Bank. The CMB is required to report to any known instances of a health care entity’s failure to report to the NPDB.
3. Sanctions. CMS is subject to sanction by the Department of Health and Human Services for failure to properly report.

 

6. Registering and reporting requirements of governing boards of CMS and/or component.
1. The governing boards of CMS and/or component that engage in professional review activities must register one time with the Colorado Division of Registrations on or before July 1, 2013; or if the governing board establishes a PRC after July 1, 2013, within 30 days of approving the PRC’s bylaws, policies, and procedures.   The governing board that does not register with DORA as required is not entitled to immunity afforded under CPRA until the date the governing board is registered. However the immunity, confidentiality, or privilege afforded to individuals is not affected by the governing boards failure to register.
2. In addition to any other reporting requirement required by law, a registered authorized entity must report annually to the CMB the number of final professional review actions in each of the following categories:
1. Adversely affecting(3) the individual;
 
2. Accepted the individual’s surrender of clinical privileges, membership or affiliation while the individual was under investigation;
 
3. Accepted the individual’s surrender of clinical privileges, membership or affiliation in return for not conducting an investigation;
 
4. PRC made recommendations regarding the individual following a hearing.
 
3. A registered authorized entity must report annually to the Colorado Division of Registration (DORA) in a de-identified, aggregate manner on its professional review activities, including:
1. The number of investigations(4) completed during the year;
 
2. The number of investigations that resulted in no action;
 
3. The number of investigations that resulted in written involuntary requirements for improvement sent to the subject of the investigation;
 
4. The number of investigations that resulted in written agreement for improvement.
 
7. Record Retention.

   Complete files shall be retained by CMS in accordance with the following:

1. If the review request is rejected or referred to another entity or process at the screening stage, CMS shall retain the file for 90 days.
2. If, after investigation, the PRC determines that no action is warranted, the file shall be retained for 90 days.
3. If the PRC issues a letter of concern, admonition or reprimand, such letter shall be maintained for 10 years, the remainder of the file may be disposed within 90 days.
4. If, after a hearing before the Unified PRC, the committee recommends that no disciplinary action be taken and that no sanctions be imposed against the physician, the file shall be retained for three years.
5. If an appeal is conducted before the Judicial Council and the Council determines that the Unified PRC’s recommendation for disciplinary action or sanctions be rejected and that no action be taken against the physician, the file shall be retained for three years.
6. If a complaint proceeds through appeal to the Judicial Council, resulting in an adverse finding, the file shall be retained for 10 years.