The need for Quality Improvement and Peer Review Activities to remain confidential and to be protected from discovery in a lawsuit has long been recognized. Historically, Nebraska’s quality and peer review statutes have provided very limited privilege protection. Many hospitals performed quality and peer review activities that staff and administrators believed to be privileged but likely were not.
In 2011, the Nebraska Legislature passed The Health Care Quality Improvement Act (HCQIA), which provides much broader protection to quality and peer review activities. The new law applies not only to hospitals, but to all licensed health care facilities, professionals, organizations, and associations of health care professionals licensed under the Nebraska Uniform Credentialing Act. In addition, where the prior statutes limited the number of committees that would be afforded protection for quality and peer review activities, HCQIA extends the privilege to any number of committees so long as certain requirements are met. Finally, HCQIA expressly deems certain activities and documents privileged that were not privileged, or were at best ambiguous, under the former law (e.g., incident reports, root cause analyses), so long as certain requirements are met.
So what’s the catch? The privilege is not automatic. There are things you have to do to obtain the privilege and things you have to do to keep the privilege. The privilege will only apply to committees identified by the governing board as quality improvement and peer review committees. This will require a look at the committee structure in your facility and perhaps even some reorganization. The selection of the committees should be documented where appropriate in the facility’s bylaws, rules, regulations, policies and procedures. Documents will be considered privileged only if created and maintained for exclusive use by a peer review committee. The privilege is lost if shared outside of the committee structure. Policies and procedures must be implemented reflecting this process.
With proper preparation of your committee structure, designation of quality and peer review committees, and adoption of policies and procedures delineating the process, there should be little difficulty in demonstrating to a court the privileged nature of your processes and documents should the need arise in future litigation.