Write compliant response letters

Before sending peer review information, a medical staff should first look at state laws to ensure it has a mechanism in place to make disclosures in a confidential manner, says Joanne Hopkins, Esq., an attorney at law based in Austin, Texas. For example, Texas allows committee-to-committee disclosures, so for medical staffs in that state, it's a best practice to include language in the response letter referencing the section of the Texas statute that allows those disclosures without waiving any privileges.

"I like to put that in every letter so in the event that someone gets a hold of it and says we have waived the privilege, we can show we were asserting the privilege when we made the disclosure," Hopkins says.

The response letter should also conform to state confidentiality laws, she says. Nearly every state has a peer review statute that renders the information in a peer review file confidential and only allows that information to be disclosed in very limited situations. The ­disclosures need to be constructed in a manner that maintains that confidentiality.

With that language in the response letter, a medical staff should next ensure that the actual disclosure follows the stipulated terms of the state statute. For example, if a disclosure must occur between two committees to comply with state law, and instead it occurs between two medical staff coordinators, it may not fall under the peer review privilege, Hopkins says. A possible solution would be to restructure the disclosure by having the medical staff coordinator make the disclosure on behalf of the credentials committee or MEC to the committee at the other hospital.

As an example, if a query comes to Hospital A, which is based in a state that permits committee-to-committee disclosures, from the medical staff coordinator at Hospital B, Hopkins says Hospital A's response should:

• Address Hospital B's MEC
• Specify that the response is on behalf of Hospital A's MEC or credentials committee
• Include language from applicable state law(s)

Furthermore, language could be added to Hospital A's broader policy that states all disclosures will be provided on behalf of the credentials committee or MEC. Instead of suggesting that the medical staff coordinator provides the disclosure on his or her own behalf—which wouldn't comply with state law—the policy could state that the medical staff coordinator provides the information on behalf of and as an agent for the credentials committee or MEC.

Source: CRC News & Analysis