Although two national healthcare associations expressed concern about a federal judge's order to end the confidentiality of peer review organization investigations of provider performance, neither group would address the broad financial and quality-of-care implications of the decision.
Last week, U.S. District Judge Ellen Segal Huvelle in Washington ordered the Centers for Medicare and Medicaid Services to force the nation's PROs to comply when Medicare beneficiaries ask to see reports on investigations into complaints about substandard care.
Under longstanding Medicare policy, results of such investigations were kept confidential unless the providers involved authorized their release. But in a summary judgment issued July 10 and released six days later, Huvelle said Medicare rules barring disclosure of PRO investigations are against the law. Huvelle said the Peer Review Improvement Act of 1982 requires PROs to share results of investigations with Medicare beneficiaries, even if it means disclosing information that could be used in malpractice lawsuits.
"This provision (of the PRO statute) unambiguously provides for limited substantive disclosure to a Medicare beneficiary," Huvelle wrote.
Timothy Flaherty, M.D., chairman of the American Medical Association's board of trustees, said an important key to improving quality is creating a comfortable environment for physicians to discuss incidents of substandard care.
"The American Medical Association is concerned that the recent U.S. District Court decision allowing full disclosure of information obtained during the peer review organization investigations jeopardizes current efforts aimed at improving the quality of care," Flaherty said in a written statement.
Officials of the AMA and the American Hospital Association declined to discuss in detail the possible consequences of Huvelle's order, such as how it could affect ongoing debate over whether to make the reporting of medical errors voluntary or mandatory and whether that information should be public.
Under the PRO act, which was meant to ensure that services to Medicare beneficiaries are reasonable and necessary, the CMS contracts with private organizations to review medical records. The PROs also are charged with investigating Medicare beneficiaries' complaints and all complaints of alleged violations of the 1986 Emergency Medical Treatment and Active Labor Act, the federal law that bars patient dumping.
For years, CMS regulations and its PRO manual have barred PROs from making investigation findings available to Medicare beneficiaries. Regulators said they feared physicians would not cooperate with reviews or speak honestly about events if they believed the results of investigations could be used against them in malpractice lawsuits.
A CMS spokesman said the agency is reviewing the judge's decision and hasn't decided whether to appeal or seek a stay of the order. Huvelle's decision takes effect on July 30.
The consumer advocacy group Public Citizen sued CMS over its rules on behalf of Kentucky resident David Shipp in 2000. Shipp asked Health Care Excel, Terre Haute, Ind., the PRO covering Kentucky, to investigate the quality of care his wife received at 407-bed Baptist Hospital East, Louisville, Ky., before her death from cancer in June 1999. Because two doctors involved did not authorize the PRO to disclose its findings, Shipp never learned the complete results of the investigation.
Kit Fullenlove, a Baptist spokeswoman, wouldn't comment on the ruling but said the hospital wasn't aware of "any quality-of-care issues raised in the investigation that involve hospital care."
In a written statement, David Schulke, executive vice president of the American Health Quality Association, which represents PROs, said the decision "increases the tension in federal law between the interest of individuals who seek full disclosure . . . and the public's interest in encouraging doctors to provide confidential data about quality problems."
Health Care Excel Chief Executive Officer Philip Morphew said the PRO would reserve comment until its officers could meet.
"In my 21 years of experience, I've found physicians are quite willing to participate in the PRO process as long as the process is focused on the improvement of care," he said. "I do not believe that practicing physicians are interested in participating in a review that's intended to provide information to support litigation."