Ask the expert: Does HCQIA trump state peer review statutes when it comes to deciding which documents are considered confidential?

No. When deciding whether a document should be classified as peer review, MSPs and medical staff leaders should check their state peer review statutes. “A lot of states have peer review statutes of their own in addition to the [Health Care Quality Improvement Act] statute,” says Annemarie Martin-Boyan, Esq., senior counsel at Temple University Health System in Philadelphia.

For peer review documentation to be legitimately labeled as peer review, ensure that the individuals who sit on their peer review committees meet the definition of a peer (if the statute provides one) and that the activities they engage in match the state’s definition of peer review activities.

The next step is to assess what the state statute defines as peer review documentation. For example, according to the General Laws of Massachusetts, Chapter 111, Section 204, peer review documentation consists of the proceedings, reports, and records of a medical peer review committee. Documents, incident reports, or records otherwise available from original sources (i.e., patient charts) are not protected because they were not generated by the peer review body.

Martin-Boyan says that medical staffs should know their state statutes inside and out. “Not that the federal statute isn’t important, but most cases are tried at the state level,” she says.

This week’s answer is from “Don’t let HCQIA’s discoverability protections pass you by: Peer review documentation best practices,” in the June issue of Credentialing & Peer Review Legal Insider.