Update of Colorados Professional Review Act Jean Martin MD, JD

Learning Objectives Describe the scope of Colorados revised professional review law State the new requirements for health care entities conducting professional review Discuss the impact of the new law on current quality/risk management practice

Sunset Review A sunset provision repeals a law after a certain date unless the legislature acts to extend it. DORA reviews the agency, division or boards performance and solicits input from stakeholders. It considers whether conditions have changed and whether administrative or statutory changes are needed to improve agency operations for the public interest.

Why did we care about the sunset of the professional review act? Protects records Protects participants Protects patients

Sunset Review: Professional Review Act Recommendations Continue CPRA until 2019 Sunset the Committee on Anti-Competitive Conduct Authorize professional review of PAs and advance practice nurses

Sunset Review: Professional Review Act Recommendations No waiver of privilege/confidentiality when review records shared with regulators or other professional review entities

Sunset Review: Professional Review Act Recommendations Require entities conducting professional review to register with the medical board and report their review activities annually Change references from peer review to professional review

Professional Review Act: HB 1300 Protects review of PAs and APNs Requires registration with Division of Professions and Occupations of DORA by 7/1/2013 Allows sharing of information among authorized entities and regulatory bodies without losing protections Requires annual reporting of de- identified aggregate information about professional review investigations to DORA Qualified immunity from suit for professional review activities

Professional Review Act: Protections-Records Professional review committee evaluates a physicians, PAs, or APNs competence, professional conduct, or quality and appropriateness of patient care Professional review records are not subject to subpoena or discovery and are not admissible in any civil suit

Professional Review Act: Records Any records arising from activities of a professional review committee Includes electronic communications; letters of reference; interviews; consultant reports; other minutes or decisions related to professional review activities Does not include records available from a source outside of professional review activities-e.g. medical records and eyewitness accounts

Professional Review Act: Protections-Immunities Immunity from a suit brought by a physician, PA, or APN For participants unless they provide false information. For governing board/authorized entity if action taken as part of professional review process and taken: (i) in the objectively reasonable belief that the action was in furtherance of quality health care; (ii) after an objectively reasonable effort to obtain the facts of the matter; (iii) in the objectively reasonable belief that the action taken was warranted by the facts; and (iv) in accordance with procedures that, under the circumstances, were fair to the physician, PA, or APN

Professional Review Act: Immunities Immunity from a suit brought by anyone (including a patient) for participants and authorized entities for activities in connection with a professional review action Must follow HCQIA standards for professional review process

Negligent credentialing No CPRA protection for negligent credentialing claim brought against a hospital or ASC e.g. hospital or ASC was negligent because it knew or should have known practitioner was incompetent, but granted unrestricted privileges anyway Participants still protected under CPRA

Professional Review Act: Entities authorized to form professional review committees Hospital and ASC medical staff Professional services entities (e.g. professional services corporations, LLCs, and limited liability partnerships) composed of licensed physicians or PAs-dont need 25 physicians Individual practice associations HMOs Professional liability insurers Physician and APN societies Accountable care organizations

Professional Review Act: Records Records can be shared with other professional review entities or regulators without losing the protections (e.g. medical and nursing boards, health department, CMS, Joint Commission, other hospitals)

Professional Review Act: Professional Review Committees Majority of voting members of committee must be practicing physicians, and for APNs must have an APN member or reviewer with same scope of practice Must be compliant with policies or bylaws approved by a governing board registered with DORA

Professional Review Act: Investigation requirements If investigation shows physician, PA, or APN lacks qualifications or competency, provided substandard care, or exhibited unprofessional conduct, AND the review committee recommends an action adversely affecting the persons affiliation or privileges, the person has a right to a hearing.

Professional Review Act: Investigations Person must have notice of the hearing and any adverse recommendations Person has a right to be represented by legal counsel and offer evidence in his or her own behalf

Professional Review Act: Investigations After hearing, committee makes recommendation to governing board Person has a right to appeal to the governing board any adverse recommendation Committee forwards recommendation to either medical board or nursing board

Professional Review Act: Governing Board Must register with DORAs Division of Professions and Occupations by July 1, 2013 or within 30 days of approving bylaws for the professional review committee

Professional Review Act: Governing Board In addition to other federal/state reporting requirements (e.g. NPDB), must report annually to medical or nursing board: action adversely affecting privileges for > 30 days acceptance of surrender of privileges while under investigation or in return for not conducting an investigation where professional review committee made recommendations after a hearing

Professional Review Act: Governing Board In HHS guidance, health care entities conducting professional review are required to report to the NPDB and appropriate state licensing board within 30 days of the action. See HHS NPDB website for guidance: hipdb.hrsa.gov/hcorg/howToGetStarted.jsp hipdb.hrsa.gov/hcorg/howToGetStarted.jsp.

Professional Review Act: Governing Board Must report annually to DORAs Division of Professions and Occupations de-identified aggregate data of number of investigations completed during the year number of investigations resulting in no action

Professional Review Act: Governing Board number of investigations resulting in involuntary requirements for improvement sent to the person by the entity number of investigations resulting in written agreements for improvement between the person and the entity

Professional Review Act: Committee on Anti-Competitive Conduct Physician, PA, or APN alleging that professional review process was based on unreasonable anti- competitive conduct must file a complaint with the Committee on Anti-Competitive Conduct before pursuing a civil remedy.

Re-cap Revise policies/bylaws Register with Division of Professions and Occupations by July 2013 Report to medical/nursing boards, and aggregate data to DORA (2014)

Questions

Contact Information Jean Martin MD, JD Associate Attorney, COPIC Nick Ghiselli Senior Attorney, COPIC Mark Fogg General Counsel, COPIC