ASCs Now Eligible for Peer Review Protections
In the 2008 session, the Colorado General Assembly passed HB 1075 which extends Colorado’s existing professional review statute to ambulatory surgery centers (ASCs). This bill was signed by Governor Ritter on April 1st and became effective on August 5, 2008. ASCs that conduct professional review activities in accordance with statutory requirements may now claim certain immunities from liability and protection for professional review documentation.
Benefits of the Professional Review Statute
The Colorado Professional Review Act authorizes specified organizations to establish a formal process to review the quality or appropriateness of patient care and/or the professional conduct of a physician who is a member of the organization’s medical staff or, in a few other instances, otherwise subject to the authority of the organization. The professional review records of the organization are not subject to subpoena or discovery and the deliberations of a properly constituted professional review committee are not admissible in any civil suit brought against a physician who is the subject of the professional review. The organization, its governing board, and other participants in the professional review process may claim this confidentiality as well as certain immunities from liability for acts taken in the course of the peer review process. Additionally, the first level of recourse available to a physician who believes that he or she was the subject of unreasonable anticompetitive conduct in the professional review process is review by the Board of Medical Examiner’s (BME) Committee on Anticompetitive Conduct. Failure to timely request this review blocks the physician from further suit. These protections apply in state law proceedings and are in addition to protections the organization may have in federal proceedings under the Health Care Quality Improvement Act ("HCQIA").
Protection is Not Automatic
The protections offered by the Colorado Professional Review Act are not available unless an ASC has adopted a professional review program that meets statutory requirements. These requirements include a formal process that is established by written bylaws, policies or procedures that have been approved by the ASC’s governing board. Although immunity and confidentiality are available prior to any adverse professional review action, the professional review process must include specific notice, hearing and appeal procedures. A majority of the members of a hearing committee must be licensed physicians. The physician who is the subject of a hearing must have the right to be present, to be represented by counsel, and to present evidence at the hearing. Recommendations made by a professional review committee after conducting a hearing must be forwarded to the BME and records of proceedings must be provided to the BME upon request. Additionally, in order to claim statutory immunities, participants in the professional review process must act in good faith after making a reasonable effort to obtain the facts of the matter and in the reasonable belief that the action taken was warranted by the facts.
Steps to Take
The Colorado Professional Review Act offers important state law protections to ASCs that credential medical staff and perform other professional review activities. These ASCs should review their governing documents, medical staff bylaws, and other policies and procedures to determine whether the detailed requirements of the Professional Review Act, as well as HCQIA, are met. New procedures or changes to existing procedures may be required in order to claim the immunities from liability and the confidential protections offered by the Act.
Additional Information.
For additional details about the specific requirements of the Colorado Professional Review Act, please see Colorado Revised Statutes §§ 12-36.5-101 et seq. A full copy of HB 08-1075 can be found at: http://www.leg.state.co.us/CLICS/CLICS2008A/csl.nsf/fsbillcont3/A6E239ADEC69821C872573A80067E98B?Open&file=1075_enr.pdf or by clicking the .PDF below.
If you have any questions or would like additional information, please do not hesitate to contact Jennifer Sullivan or Sarah Meshak at Caplan and Earnest LLC, (303) 443-8010.