Peer Review Confidentiality will become much more complicated with the addition of economic evaluation to physicians’ quality and efficiency. Physicians will be surprised to learn that many “reviews” to which they may currently be subject to could have “quality implications”, and they should be concerned if those reviews were available to other third parties instead of being protected as confidential peer review information.
P4P as Peer Review Information
It occurred to me not all that long ago that pay for performance (P4P), value based purchasing (VBP) and other reimbursement and physician compensation models would generate incidental “quality” information. If physicians were being paid to achieve certain quality goals, it only stands to reason that the evaluation information would also document failure to reach those quality goals as well–perhaps an embarrassing detail. This information is typically not generated and handled as “peer review information” for either hospital employed physicians or private practice physicians participating in some type of bundled payment arrangement–which are too numerous to define or list.
Pennsylvania Peer Review
By way of brief review, in Pennsylvania and most other states, there are peer review confidentiality laws providing that peer review records are not discoverable by third parties–typically meaning that malpractice plaintiffs cannot get copies of your peer review records to identify issues with a particular patient, a class of patients or procedures.
- In Pennsylvania, “peer review” means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility.
- A “review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, any committee 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 car 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 individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.
There is also a case law in Pennsylvania providing that these peer review records are not confidential from the physicians subject to the peer review and hospitals should not be able to refuse to provide that information to physicians upon request or as part of some medical staff or peer review disciplinary or investigative process.
The Pennsylvania Supreme Court ruled, on March 27, 2018, in Regenelli v. Boggs, Monogahela Valley Hospital and UPMC/ERMI that physician performance reviews of an ER physician, who was provided by ERMI to Mon Valley Hospital, performed by a management physician within ERMI, were not protected peer review activities, and therefore the performance reviews were not protected from discovery by a third party malpractice plaintiff for a variety of reasons:
- Peer review conducted by the director of the Mon Valley Emergency Department, employed by ERMI, was not part of the peer review process of Mon Valley Hospital;
- ERMI was not a healthcare provider covered by the Pennsylvania Peer Review Protection Act.
- The contractual agreement between ERMI and Mon Valley Hospital did not create a collaborative peer review organization whose activities would have been protected by the Pennsylvania Peer Review Protection Act.
Although this is only a decision in one state, this decision highlights an issue that Robert Harrison and I presented to a conference of the American Health Lawyers Association in New Orleans in February, 2018, entitled “Peer Review Re-Engineered: The New Paradigm of Employed Physicians and Peer Review”, regarding the protection of performance reviews arising from pay for performance reimbursement programs. In that presentation, we posit that continuing “economic evaluation” of physicians under pay for performance and value based purchasing arrangements by individuals or entities not covered by a recognized peer review or confidentiality statute risks potential disclosure in third party litigation regarding malpractice, reimbursement, audit, compliance, etc.
This question presents several distinct issues, and the answers also depend upon the context of the evaluation.
First, is this for an employed physician, a physician under contract under a payment arrangement such as an ACO, or an independent medical staff member?
Second, is this a quality assessment, a utilization or efficiency assessment or a compensation assessment, i.e., is the employee or the contracted physician receiving a bonus or being penalized for hitting or failing to hit quality marks or targets?
Third, is this assessment being conducted in a quality/peer review context or an HR or financial context?
Fourth, is it the intent of the evaluator to maintain the confidentiality of this process?
In reverse order, if maintaining confidentiality is the significant issue, then only the quality/peer review evaluation will be confidential and then only from outside third parties (but not from the physician). An HR evaluation will presumably be part of the physician’s employee file and accessible under state law and any other type of context provides no confidentiality.
If confidentiality is one of the fundamental requirements, then the evaluation must be done as part of the peer review process as defined by the state peer review confidentiality law, and the peer review process must be modified so that it encompasses these P4P or performance evaluations which would presumably, without some advance planning, not be part of the peer review process.
If it is simply an incentive or compensation-based evaluation for an employed physician, none of the confidentiality rules would otherwise apply, but you must ask yourself whether you want the failure to hit certain quality targets to be public information.
Takeaway
The “Takeway” here is that you should understand this evaluation process, and the potential consequences, before blindly participating. Furthermore, it is incumbent on the “reviewers”, whether a hospital financial or HR department, the compensation analyst, or the “quality management team” to have figured out how they intend to deal with these issues–before they create the information.
