Email
WEST virginia legislature
2019 regular session
Introduced
Senate Bill 119
By Senators Trump and Boso
[Introduced January 9, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §30-3C-1 and §30-3C-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-3C-5, all relating to discovery in certain proceedings; specifying certain health care peer review documents are confidential and not subject to discovery; providing that a person who testifies before a review organization or is a member of a review organization shall not be required to testify or asked about his or her testimony; providing that peer review proceedings, communications, and documents of a review organization are confidential and privileged and shall not be subject to discovery; providing that an individual may be given access to documents used as basis for an adverse professional review action, subject to a protective order as may be appropriate; providing that privilege is not deemed to be waived unless the review organization executes a written waiver; defining terms; and addressing original source materials.
Be it enacted by the Legislature of West Virginia:
ARTICLE 3C. HEALTH CARE Peer review organization PROTECTION.
§30-3C-1. Definitions.
As used in this article:
“Document” means any information, data, reports, or records prepared by or on behalf of a health care provider and includes mental impressions, analyses, and/or work product.
“Health care facility” means any clinic, hospital, pharmacy, nursing home, assisted living facility, residential care community, end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/developmental disability center or program, or other ambulatory health care facility in and licensed, regulated, or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility as that term is defined in §55-7B-1 et seq. of this code.
“Health care professionals” means individuals who are
licensed to practice in any health care field and individuals, who, because of
their education, experience or training participate as members of or
consultants to a review organization
“Health care provider” means a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including a physician, osteopathic physician, physician’s assistant, advanced practice registered nurse, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical services personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis, or treatment; or an officer, employee, or agent of a health care provider acting in the course and scope of the officer’s, employee’s, or agent’s employment.
“Peer review” means the procedure for evaluation by health
care professionals providers of the quality, delivery, and
efficiency of services ordered or performed by other health care professionals,
including practice analysis, inpatient hospital and extended care facility
utilization review, medical audit, ambulatory care review, claims review and
patient safety review, preparation for or simulation of audits or surveys of
any kind, and all forms of quality assurance/performance improvement whether or
not required by any statute, rule, or regulation applicable to a health care
facility or health care provider.
“Professional society” includes medical, psychological,
nursing, dental, optometric, pharmaceutical, chiropractic and podiatric
organizations having as members at least a majority of the eligible licentiates
in the area or health care facility or agency served by the particular
organization
“Review organization” means any committee, organization, individual, or group of individuals engaging in peer review, including, without limitation, a hospital medical executive committee and/or subcommittee thereof, a hospital utilization review committee, a hospital tissue committee, a medical audit committee, a health insurance review committee, a health maintenance organization review committee, hospital, medical, dental, and health service corporation review committee, a hospital plan corporation review committee, a professional health service plan review committee or organization, a dental review committee, a physicians’ advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, the Joint Commission on Accreditation of Health Care Organizations or similar accrediting body or any entity established by such accrediting body or to fulfill the requirements of such accrediting body, any entity established pursuant to state or federal law for peer review purposes, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of: (i) Evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board committee or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations.
§30-3C-3. Confidentiality of records.
The proceedings and records of a review organization
shall be confidential and privileged and shall not be subject to subpoena or
discovery proceedings or be admitted as evidence in any civil action arising
out of the matters which are subject to evaluation and review by such
organization and no person who was in attendance at a meeting of such
organization shall be permitted or required to testify in any such civil action
as to any evidence or other matters produced or presented during the
proceedings of such organization or as to any findings, recommendations,
evaluations, opinions or other actions of such organization or any members
thereof: Provided, That information, documents or records otherwise available
from original sources are not to be construed as immune from discovery or use
in any civil action merely because they were presented during proceedings of
such organization, nor should any person who testifies before such organization
or who is a member of such organization be prevented from testifying as to
matters within his knowledge, but the witness shall not be asked about his
testimony before such an organization or opinions formed by him as a result of
said organization hearings: Provided, however, That an individual may
execute a valid waiver authorizing the release of the contents of his file
pertaining to his own acts or omissions, and such waiver shall remove the
confidentiality and privilege of said contents otherwise provided by this section:
Provided further, That upon further review by any other review organization,
upon judicial review of any finding or determination of a review organization
or in any civil action filed by an individual whose activities have been
reviewed, any testimony, documents, proceedings, records and other evidence
adduced before any such review organization shall be available to such further
review organization, the court and the individual whose activities have been
reviewed. The court shall enter such protective orders as may be appropriate to
provide for the confidentiality of the records provided the court by a review
organization and all papers and records relating to the proceedings had before
the reviewing court
(a) Any document prepared by or on behalf of a health care provider for the purpose of improving the quality, delivery, or efficiency of health care or for the purpose of credentialing or reviewing health care providers is confidential and privileged and shall not be subject to discovery in a civil action or administrative proceeding. Such documents include, without limitation:
(1) Nursing home, as referred to in §55-7B-6(e) of this code, incident or event reports, except reports pertaining to the plaintiff of that civil action, or reports of same or similar incidents within a reasonable time frame of the events at issue in the civil action, containing only factual information, but excluding personal identification information;
(2) Documents related to review organization proceedings for hiring, disciplining, terminating, credentialing, issuing staff privileges, renewing staff privileges, or alleged misconduct of a health care provider;
(3) Review organization documents;
(4) Quality control and performance improvement documents;
(5) Documents satisfying regulatory obligations related to quality assurance and performance improvement; and
(6) Reviews, audits, and recommendations of consultants or other persons or entities engaged in the performance of peer review.
(b) A person who testifies before a review organization, or who is a member of a review organization, shall not be required to testify regarding, or be asked about, his or her testimony before such review organization, deliberations of the review organization, or opinions formed as a result of the review organization’s proceedings. A person who testifies before a review organization, or who is a member of a review organization, shall not be prevented from testifying in court or an administrative hearing as to matters within his or her personal knowledge.
(d) Nothing in this section limits the disclosure of peer review proceedings, communications, and documents by a review organization or a health care facility to a medical licensing board pursuant to the provisions of §30-3-1 et seq. and §30-14-1 et seq. of this code.
§30-3C-5. Original source; waivers; further proceedings.
Information available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were included in any report or analysis related to improving the quality, delivery, or efficiency of health care or for the purpose of credentialing or reviewing health care providers. Documents contained in peer review files are not discoverable on the basis that they were not created as part of the peer review process; rather, the document must be produced from the original source: Provided, That if the party seeking production can show that obtaining source documents will be unduly burdensome, the court may, in its discretion, order production of the nonprivileged documents contained in the peer review file.
NOTE: The purpose of this bill is to specify documents that are not subject to discovery in certain proceedings. The bill provides that documents prepared by or on behalf of a health care provider for the purpose of improving the quality, delivery, or efficiency of health care or for the purpose of credentialing or reviewing health care providers is confidential and privileged and is not subject to discovery in a civil action or administrative proceeding. The bill defines terms. The bill specifies certain documents that are confidential and not subject to discovery. The bill provides that a person who testifies before a review organization or is a member of a review organization shall not be required to testify or be asked about his or her testimony. The bill provides that peer review proceedings, communications, and documents of a review organization are confidential and privileged and shall not be subject to discovery. The bill provides that an individual may be given access to documents used as basis for an adverse professional review action, subject to a protective order as may be appropriate. The bill provides that privilege is not deemed to be waived unless the review organization executes a written waiver. The bill addresses original source materials.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
Webmaster | © 2024 West Virginia Legislature **
