Cover: New peer review law advances patient safety

Tuesday, May 01, 2012 01:00 PM

Strong coalition, bi-partisan support bring legislative success, governor’s signature

Colorado Medical Society’s goal of making Colorado the safest state in the nation for patients moved closer to reality with the reauthorization of The Colorado Professional Review Act.

Governor John Hickenlooper signed House Bill 12-1300 on June 5, concluding an often contentious 18-month process that ended successfully thanks in large part to the steadfast support of the bill sponsors, state Rep. Bob Gardner (R-Colorado Springs) and state Sen. Irene Aguilar, MD (D-Denver).

A strong coalition of health care organizations and their lobby teams also championed the effort, which survived an 11th hour negotiation marathon while the sunset legislation was held hostage to a series of demands from the trial attorneys.

“The key to resolving a hostage situation is to hold firm on the fundamentals of the issue, never blink, and seek a fair and rational solution,” said CMS CEO Alfred Gilchrist. “Given the risks of playing chicken with a sunset bill, where an entire body of evolved and complex peer review law drops dead if the clock runs out, our bill sponsors and our coalition lobby team showed remarkable steadiness and judgment under excruciating pressure.”

As signed into law, HB 12-1300:

• Without waiver of privileges and without violation of the confidentiality requirements, allows professional review records to be shared with:
• Another authorized professional review entity
• Colorado Department of Public Health and Environment in accordance with its authority to issue or continue a health facility license or certification
• CMS in accordance with its authority over federal health care program participation
• Colorado Medical Board within the scope of its authority over physicians and PAs
• Colorado Nursing Board within the scope of its authority over APNs
• The Joint Commission or other entity granted deeming authority by CMS in connection with a survey or review for accreditation
• Maintains the confidentiality, privileges and immunities associated with professional review. This has a seven-year sunset trigger and will be subject to subsequent review.
• Includes a new section that adds advance practice nurses and physician assistants to the statute. (The ANPs and PAs actively lobbied for the entire legislative package).
• Streamlines and updates legislative language to make state and federal laws more consistent and easier to administer.
• Clarifies the legal definition of those records protected under professional review to include letters of reference, interviews or statements, reports, memoranda, assessments, and progress reports developed to assist in professional review activities, and reports and assessments developed by independent consultants in connection with professional review activities.
• Clarifies that the scope of activities of a professional review committee includes investigating and evaluating the competence, the professional conduct of, and the quality and appropriateness of care provided by a physician, APN or PA.
• Expands the list of entities that may establish a professional review committee to include a professional services entity, a provider network, an accountable care organization, and a trust organization.

Colorado Medical Society has long recognized that effective peer review is a key component to improving patient safety. Following passage of sunset legislation in 2010 to modernize the state’s Medical Practices Act and to extend the life of the Colorado Medical Board, CMS took the unusual step of requesting the state to review the body of law governing peer review.

“Making the health care system safer over the long haul is a grind, not a sprint,” said Zak Ibriham, MD, who co-chairs CMS’ Ad Hoc Work Group on Patient Safety. “We understood there would be risks associated with putting peer review through the sunset process, but at the end of the day we knew the law needed to be updated to keep pace with the rapidly evolving patient safety movement.”

A broad based coalition of organizations representing physicians, nurses, physician assistants, hospitals, medical schools, and health plans worked together from the inception of the sunset process. The influence associated with a large coalition composed of highly regarded professionals and organizations was needed when the state’s most powerful trial lawyers surfaced in the final weeks of the legislative session to insist on lawsuit-friendly last-minute amendments to the bill.

The bill’s sponsors, along with the coalition, successfully fought back trial lawyer “asks” that would have:

• Limited statutory immunity thereby increasing exposure to lawsuits for physicians
• Exposed all professional review records on a case-by-case basis to judicial scrutiny through in-camera reviews and discovery by trial lawyers
• Exposed factual information gathered during the professional review process to legal discovery and admission in court against a physician.
• Provided patients unrestricted access to professional review records.
• Excluded “letters of reference” from the definition of professional review records.
• Eliminated the review of the “competence of physicians” from the activities of a professional review committee thereby exposing those reviews to discovery.
• Held physician groups, carriers, and health plans that perform professional review liable for negligent credentialing and privileging processes.

An accord with Colorado Trial Lawyers Association was reached that does not affect physicians but will impact hospitals and ambulatory surgical centers by allowing these entities to be held liable for negligent credentialing and privileging processes involving an APN, PA or physician. A hospital or ambulatory surgical center can be liable when it fails to act reasonably when making a privileging decision (when it knew or should have known an APA, PA or physician is incompetent, but allows the privileges anyway). It is important to note that professional review participants continue to be immune from liability and that the professional review records remain protected and confidential.

Ultimately, the peer review statute was substantially strengthened and streamlined by being pushed through the sunset process.

Despite the tension that accompanies these kinds of policy debates in a highly politicized environment, the end result was conclusive and established a solid legal premise for the importance of protecting peer review systems.

Holland Hoskins, an attorney representing the CTLA, testified in support of the sunset legislation to the Senate Health and Human Services Committee and acknowledged “Peer review is a time-honored practice that is very important and has been around for a long time. It is important for better quality of medicine and patient safety. We (CTLA) agree that confidentiality and privilege should be maintained.”

At the formal signing event with Gov. Hickenlooper, CMS President F. Brent Keeler, MD, said: “On behalf of Colorado physicians and the patients and communities we serve, I wish to thank the dedicated work of the bill sponsors, the governor’s office and the many organizations that helped move Colorado’s patient safety movement forward by supporting HB 12-1300.”