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Patient Safety Organizations and Patient Safety Work Product – Federal Protection in Action Paige A. Lueking Washington D.C. Did Congress Enact a Federal Privilege? The Patient Safety and Quality Improvement Act of 2005: PSQIA: • Creates Patient Safety Organization (PSO) • Establishes Network of Patient Safety Databases • Authorizes Establishment of Common Formats for Reporting Important Safety Events • Facilitates Reporting of Findings in Agency for Healthcare Research and Quality (AHRQ) Key Terminology Patient Safety Act-PSA Patient Safety Evaluation System-PSES Patient Safety Work Product-PSWP Patient Safety Organization-PSO Patient Safety Rule-PSR PSQIA - Considerations (1) Fear of Discovery in Malpractice Litigation (2) State Laws Afforded Inadequate Protection to Keep Data Confidential (3) No Safe Mechanisms to Share Data Patient Safety Work Product - PSWP PSWP is any data: Developed by a provider and reported to a PSO Developed by a PSO for the collection into patient safety evaluation system PSWP is NOT: Original provider records Information that exists separately PSWP removed from PSES Patient Safety Work Product - PSWP Privileged Shall Not Be Subject to Subpoena, including civil or administrative proceeding against a provider Shall Not Be Offered Into Evidence Shall Not Be Used in Disciplinary Proceedings Exempt From Freedom of Information Act Exempt From Similar Federal or State Public Records Laws Patient Safety Information Becomes Patient Safety Work Product - PSWP 1. Information is Developed by Provider for Purpose of Reporting and is Reported to PSO 2. Information is Generated by PSO for Patient Safety Activities 3. Information = Deliberations and Analysis by PSES or Has Been Reported to PSES or PSO Who, What, When, Where, and Why Patient Safety Event Risk Management / Quality Improvement Committee •Enters data into system •RCA •Action Plan •Decision if event should be reported to PSO •Report to PSO •Collects facts from patient and providers •Reviews Records •State requires mandatory reporting •Subsequent Legal Case How? Data entered into reporting program and not maintained for any other purpose PATIENT SAFETY DATA ENTERED INTO PATIENT SAFETY EVALUATION SYSTEM Voluntary Actions – Clear, Deliberate, Intentional, Formal ● ● ● Participation of Provider Materials Submitted to PSO Deliberations, Analysis or Facts of Reporting to Patient Safety Evaluation System Disclosure of PSWP – Provider – PSO- Affiliated Provider Written Permission From All Named in PSWP PSWP Contains No Identifying Information Intersects With Credentialing or Disciplinary Actions If Provider Covered Entity, Disclosures Must Meet Requirements of HIPAA Patient Safety Act PSO OPERATIONS http://www.pso.ahrq.gov PSO News and Information Special Interests Clinical Information Consumers and Patients Funding Opportunities Data and Surveys Research Findings PSOs in the United States ***30 States and the District of Columbia are the home of at least one Patient Safety Organization. All PSOs can operate nationwide regardless of their home state. States With Peer Review Protections - Varied At Least 46 States Have Peer Review Protections Florida – The Sunshine State Amendment 7 Florida Constitution X Section 25 Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 1st DCA 2006) Columbia Hospital Corp. of South Broward v. Fain, 16 So.3d 236 (Fla. 4th Dist. 2009) West Florida Regional Medical Center, Inc. v. See, 2012 WL 87282 (Fla. 2012) Holly v. Auld, 450 So.2d 217 (Fla. 4th Dist. 1984). Constitution and the Courts Allow Extensive Discovery Illinois – Land of Lincoln Key Case: Department of Financial and Professional Regulation v. Walgreen Co., 2012 WL 1951106 (Ill. App. 2nd Dist., 2012) • Subpoenas issued for incident reports of medication errors by 3 pharmacists under investigation • Affidavits established that quality improvement reports which pharmacy created under tracking and reporting system were privileged under PSQIA •Trial court granted Walgreen’s Motion to Dismiss •Affirmed by Appellate Court – May 29, 2012 California – The Golden State Schlegel v. Kaiser Found. Health Plan, Inc., (E.D. Cal. Sep. 11, 2008) No PSQIA Protection Because Internal Reports Describing Kidney Transplant Program not Created as PSWP nor Reported to PSO PSO DECISIONS -“Sole Purpose” of Document Preparation Pennsylvania Hospital had to produce incident report as burden not met to show document was prepared solely for reporting to a Patient Safety Organization and not for another purpose Morgan v. Community Medical Center, June 2011 Kentucky Trial court granted protective order as to RCA and Sentinel Event documents which were reported to the PSO Court discussion of Congressional intent excellent rationale for confidentiality of documentation Fancher v. Shields, August 2011 Not Yet Tested Texas – The Lone Star State The Home of Well Defined Well Recognized Peer Review Protections What Kinds of Entities Can Become a PSO? Public Entity Private Entity For Profit Company Not-for-Profit Company If Certified By HHS Entities Excluded from Becoming PSO Health Insurer Health Care Accreditation or Licensing Entity Agent of Entity that Oversees or Enforces Health Care Statues or Regulations Entity that Operates a Mandatory Patient Safety Reporting System Requirements for Initial and Continued Listing Demonstrate Compliance with 15 Requirements 8 Mandatory Patient Activities 7 Additional Criteria for Certification PSO Activities ● Collect and Analyze Patient Safety Data ● Assist Providers in Improving Quality and Safety ● Divide and Assimilate Patient Safety Information ● Encourage Culture of Safety and Improvement of Risks ● Provide Feedback to Participants ● Maintain Confidentiality and Security of Data Exceptions to Confidentiality of PSWP Criminal Proceedings / Investigation Adverse Employment Action Authorized Disclosure Patient Safety Activities - HCA Research, If Permitted by HIPAA FDA Accrediting Body State Agencies Business Operations CDC Information Flow PATIENT SAFETY WORK PRODUCT. This information is compiled for the Happy Health System Patient Safety Evaluation System and is privileged, confidential and not subject to discovery. Medical Errors To Err is Human – Institute of Medicine To err is human; to forgive, divine – Alexander Pope To err is human. To blame someone else is politics. - Hubert Humphrey Medical Errors From the Headlines Benefits Federal Confidentiality Protection for Analysis and Data Aggregated Data in “Common Format” Identifies Trends Encourages Self Examination Near Misses Do Not Become Sentinel Events • • Alabama Healthcare Improvement Patient Safety Organization of Alabama, Inc. • • Arkansas American Data Network PSO • • • California California Hospital Patient Safety Organization (CHPSO) Quantros Patient Safety Center • • • Connecticut QA to QI LLC (d/b/a QA to QI Consulting) The Connecticut Hospital Association Federal Patient Safety Organization • • • • District of Columbia American College of Physicians Patient Safety Organization Open Safety Foundation Pascal Metrics Inc • • • • • • • • Florida Baptist Health Patient Safety Partnership Medical Peer Review Resource, LLC MEDNAX PSO, LLC Patient Safety Organization of Florida (PSOFlorida) Quality Circle for Healthcare, Inc. Ryder Trauma Center UM-JMH Center for Patient Safety • • Georgia Piedmont Clinic, Inc. • • • • • • • • Illinois Anesthesia Quality Institute Chicago Breast Cancer Quality Consortium Clarity PSO Society for Vascular Surgery Patient Safety Organization, LLC The Midwest Alliance for Patient Safety The Patient Safety Research Foundation, Inc. UHC Performance Improvement PSO • • Indiana QAISys, Inc. • • Kansas Child Health Patient Safety Organization, Inc. (Child Health PSO) • • Kentucky Kentucky Institute for Patient Safety & Quality • • Louisiana Schumacher Group Patient Safety Organization, Inc. • • • Maine ABG Anesthesia Data Group, LLC Specialty Benchmarks PSO • • • Maryland AABB's Patient and Donor Safety Center Maryland Patient Safety Center, Inc. • • • Massachusetts Academic Medical Center (AMC) PSO Fresenius Medical Care PSO, LLC • • • Michigan Emergency Consultants PSO, LLC (d/b/a ECI PSO, LLC) MHA Patient Safety Organization • • Minnesota Universal Safety Solution PSO • • • Missouri Ascension Health Patient Safety Organization Missouri Center for Patient Safety • • Nebraska Nebraska Coalition for Patient Safety • • • New Jersey New Jersey Hospital Association Health, Research & Educational Trust Institute for Quality & Patient Safety PDR Secure LLC • • • • • New York MCIC Vermont, Inc. PSO Medication Management Research Network Northern Metropolitan Patient Safety Institute Somnia Patient Safety Organization, Inc. • • • • North Carolina Carolinas HealthCare System Patient Safety Organization Carolinas Rehabilitation - Patient Safety Organization NC Quality Center PSO • • • Ohio EMP Patient Safety Organization Ohio Patient Safety Institute • • • • • • • • Pennsylvania BREF PSO Chart Institute LLC ECRI Institute PSO Institute for Safe Medication Practices (ISMP) McGuckin Methods International, Inc. PsychSafe (Component PSO of Psychiatric Solutions, Inc.) Society of Hospital Medicine PSO • • • Rhode Island Leadership Triad The PSO Advisory • • South Carolina Verge Patient Safety Organization • • • • • • Tennessee CHS PSO, LLC Cogent Patient Safety Organization, Inc. Premerus PSO, LLC TeamHealth Patient Safety Organization Tennessee Center for Patient Safety • • • • • Texas PSO Services Group Texas Patient Safety Organization, Inc. The Texas A&M Health Science Center Rural and Community Health Institute (TAMHSC-RCHI) WiMED, Inc. • • Utah Independent Data Safety Monitoring, Inc. • • • Virginia Alliance for Patient Medication Safety Wake up Safe (a component of the Society for Pediatric Anesthesia) • • • Wisconsin GE-PSO Morgridge Institute for Research PSO Thank you Paige Lueking 900 Jackson Street, Suite 100 Dallas, Texas 75202 Tel: 214-712-9510 [email protected]