Legislative Update from CNA
Dear CNA Members, Affiliate Organizations and Professional Colleagues:
PRIORITY LEGISLATIVE ALERT
Call your State Senator TODAY and ask him/her to support HB 1300, Professional Review (peer review) Sunset!
If your State Senator sits on the Senate Health and Human Services Committee (see list below) please call them and urge them to vote yes on HB 1300, Professional Review Sunset. HB 1300 updates and renews the body of law that holds peer review processes of physicians confidential. This legislation extends these confidentiality provisions to advanced practice nurses and physician assistants. Currently, APNs can be the subject of peer reviews but are not afforded the same protections that physicians enjoy under the law. Colorado Nurses Association, Colorado Association of Nurse Anesthetists, and ACNM Colorado actively support HB1300.
What to Do: Immediately communicate with your State Senator via email or phone, and respectfully urge support for HB 12-1300, by Rep. Gardner and Senator Aguilar, Professional Review Sunset. Identify yourself by name, indicate that you are a nurse midwife and a constituent (if you are). State the following points in your own words:
1.Reauthorizing Colorado Professional review (peer review) law is essential to maintaining and increasing patient safety. Peer review ensures open and robust discussions among members of the professional review committee that will get to the source of any problems that may impair quality care.
2.Including APNs under this law enhances quality health care and recognizes the current role of APNs as independent health care providers with hospital privileges.
Background: The General Assembly adjourns on May 9 and the legislative calendar still provides time to pass a strong, meaningful peer review bill that will serve patients well into the future but we need to get it passed out of the Senate. It is expected to be heard in the Senate HHS Committee on Thursday, April 26. The legislation has been through a lengthy and thorough sunset review process by the state's Department of Regulatory Agencies, it has bipartisan support, and a formidable coalition working to pass it, including ACNM CO Chapter, CO Nurses Association, CO Medical Society, physician specialty groups, COPIC, hospitals and health plans. In fact, the bill passed the House of Representatives easily and unanimously. However, it has been held up in the Senate because the Colorado Trial Lawyers Association believes that it extends protections beyond what is currently in law (although the trial lawyers have not provided us with any written communications explaining this point of view). This is why your Senator needs to hear from you.
Thank you in advance for your help. If you get a chance, let us know how your Senator responds. If you need more information, let us know and we will get back to you promptly.
Senate Health and Human Services Committee Members (to find out who YOUR Senator is, go to www.votesmart.org , enter your address and find your Colorado State (not US) Senator)
Senator Betty Boyd (D-Jeffco/Lakewood): 303-866-4857 or email@example.com
Senator Linda Newell (D-Arapahoe/Jeffco): 303-866-4846 or firstname.lastname@example.org
Senator Irene Aguilar (D-Denver): 303-866-4852 or email@example.com
Senator Jeanne Nicholson (D-parts of Boulder, Grand, Jeffco, Summit counties, all of Clear Creek and Gilpin Counties): 303-866-4873 or
Senator Joyce Foster (D-Denver): 303-866-4875 or firstname.lastname@example.org
Senator Kevin Lundberg (R-Berthoud/Larimer County): 303-866-4853 or email@example.com
Senator Shawn Mitchell (R-Broomfield, parts of Adams and Weld counties): 303-866-4876 or firstname.lastname@example.org
Senator Ellen Roberts (R-Durango, counties of Archuleta, Dolores, La Plata, Montezuma, Montrose, Ouray, San Juan, San Miguel): 303-866-4884 or email@example.com
Senator Jean White (R-Hayden, counties of Eagle, Garfield, Jackson, Moffat, Rio Blanco, Routt): 303-866-5292 or firstname.lastname@example.org or email@example.com
More information on amendments that trial lawyers are seeking (you don't need to read or understand this to call your Senator):
Discoverability of Factual Information in Professional Review Records and Change in Civil Court Discovery Procedures
Trial lawyers want to make all professional review records available to patients for informational use. In addition, all professional review records that contain factual information relating to the care provided would be subject to discovery in a lawsuit against the practitioner.
The trial lawyers seek to require that professional review records no longer have a blanket protection from discovery. Rather, the trial lawyers are proposing the records be detailed in a privilege log, that a court perform an in camera review and determine which of the professional review records are protected, and places the burden of establishing that the professional review records are protected on the practitioner.
Allowing investigation and factual findings of the professional review committee to be discoverable and used in malpractice cases against an APN, physician or PA, and changing the civil court discovery procedures will:
Cause a chilling effect on professional review and drive it underground as practitioners will be reluctant to be honest in their judgment of their colleagues knowing that factual information provided could easily be revealed in a court of law.
Create unnecessary litigation, in every case, to resolve disputes over redacted professional review records as the factual materials are inexplicably intertwined with the deliberations, consultations, assessments, evaluations and recommendations of the PRCs.
Be bad for patient safety because it forces defensive actions by PRCs including the use of fictitious data during case presentations, eliminating documentation -no minutes, no patient/practitioner identifiers-so as avoid discoverability of these discussions, and using legal counsel to collect factual information so that information will be protected by the attorney client privilege.
Decrease current immunities afforded under current law
There are two separate immunity provisions under the current law that protect voluntary members of a professional review committee and the entity from legal action if they make an unfavorable recommendation regarding a physician, APN or PA.
The immunity in CRS section 12-36.5-105 addresses the concern committee members had about a suit brought by a physician who is the subject of a review.
The immunity in CRS section 12-36.5-203 (referred to as Section 203) provides that a professional review body, a person acting as a member of the staff to the body, any person under contract or formal agreement for the body, and any person who participates with or assists this body shall not be liable in damages with respect to the action. For this immunity to apply certain standards for professional review must be met.
In a Colorado Court of Appeals case, Kauntz v. HCA-HealthONE, the court determined that the liability limitations of section 203 apply to a patient's suit against a hospital for alleged negligent credentialing. The court reasoned that the statutory language clearly and unambiguously provides immunity from damages for professional review bodies "in any civil action" wherein a professional review has been conducted concerning credentialing decisions. According to the court, this language was designed to provide protection from patient's claims that could arise out of the peer review process, including credentialing decisions.
The court's interpretation does not foreclose all negligent credentialing claims. The case does not preclude negligent credentialing claims asserting the hospital failed to have a qualifying peer review process in place, the hospital failed to utilize peer review in responding to a physician's request for credentials, or other potential claims for which immunity may not be available.
Allowing erosion of the liability limitation in section 203 will:
* Expose volunteer members of a professional review committee to legal actions which will discourage physicians, APNs and PAs from participating in professional review proceedings.
* In virtually every medical malpractice case against a physician, APN, or PA, the trial lawyers will assert a claim for negligent credentialing thereby driving litigation.
Please call your state Senator today. Colorado Nurses Association thanks Colorado Medical Society and ACNM Colorado for sharing their legislative alerts.
Colorado Nurses Association acknowledges the work of CNA attorney Linda Siderius in leading the advocacy and legal effort on this bill for Colorado Nurses Association.
Fran Ricker, RN, MSN
Colorado Nurses Association