Accreditation records can be released

Risk managers expect accreditation records to be confidential, and The Joint Commission (TJC) urges providers to fully disclose information about adverse events and deficiencies as part of the quality improvement process. But some risk managers are learning that those records are not as private as often thought.

A recent court case in Kansas was an eye-opener for those who assumed that accreditation records could not come back to haunt them in a civil or criminal investigation. The Headache & Pain Center in Leawood, KS, is under investigation for alleged federal offenses, and a federal prosecutor was able to access the organization's Joint Commission accreditation records, explains Robert Guenthner, JD, a partner with the law firm of Sonnenschein Nath & Rosenthal in Chicago, who has studied the case. The Joint Commission in Oakbrook Terrace, IL, resisted the prosecutor's request at first, stating that Illinois law prohibited the release of the information.

The prosecutor obtained a court order from a federal court, and The Joint Commission complied. However, TJC convinced it to redact some sensitive information, such as patient names and all communication related to sentinel events. The order also included strict limits on the dissemination of the information, Guenthner explains.

The Joint Commission did not respond to a request for comment, but explains on its web site that certain information is kept confidential, while other, less sensitive data can be released to certain parties.The Headache & Pain Center did not respond to a request for comment.

Federal law wins

Though such a court order is rare, the case nevertheless has prompted concern that accreditation records are not completely confidential. Guenthner says federal law trumps the Illinois peer review statute that TJC relies on to refuse records requests, but even then, TJC requires a federal court order, not just a subpoena.

"This is not a situation we have seen regularly, but this case in Kansas is getting some attention, and that may make the government more interested in using this approach," he says.

When TJC, or any other accrediting body, turns over records about a health care provider, there is substantial risk, says Anthea Daniels, JD, a partner with the law firm of Calfee, Halter & Griswold in Cleveland.

"If the prosecutor wants to show that you were aware of a particular issue and should have corrected it, those accreditation records can be extremely useful," she says. "They can say that a year ago you were informed by the accrediting body that [you] were not meeting the standard, and because this [is] from the group that is the final word on what is and isn't OK in health care, it is very hard to refute that. They have evidence that you were in the wrong — and that you knew it."

The situation becomes worse if the prosecutor can show that you did not address the issue. As with any internal records, the provider is in a bad spot if the records show you were put on notice of a defect and did not take corrective action.

"You want to be able to say yes, you were informed of the deficiency and be able [to] show that you corrected it immediately," she says. "If you can show that you addressed it right away, that lessens the impact quite a bit."

Guenthner notes that TJC usually notifies the provider when prosecutors or plaintiffs request accreditation records, so he says risk managers should be prepared for that call and have a response plan.

"Work with your own counsel to minimize the disclosures, because if there is a federal court order, you're not going to be able to stop the release of the documents," he says. "The best you can do is to see that certain sensitive information is not included."

Accreditation records could be sought under a False Claims Act case, says Sara Kay Wheeler, JD, a partner with the law firm of King & Spalding in Atlanta. For instance, prosecutors may allege that the service that was provided was of such poor quality that it should not have been billed.

"In that case, they may seek underlying documentation to show that the level of care was insufficient and that you knew that because you had been told by the accreditation agency," she says. "If they get access to those records, they can make a convincing case that you knew you shouldn't have billed for that care."

Civil cases not a concern

The Kansas case is a reminder that risk managers should consider the possible release of information whenever they provide sensitive material to anyone outside the organization, whether it is TJC, a state agency, an outside auditor, or a contractor, she says.

"The Joint Commission probably provides the greatest level of confidence with regard to confidentiality, but you have to consider the risk any time you're handing over proprietary information, potentially damaging data, or anything you would rather not have in a prosecutor or plaintiff's attorney's hands," she says. "Ask yourself how much you can depend on their confidentiality before you hand it over."

Andrew P. Gaillard, JD, a partner with the law firm of Day Pitney in Stamford, CT, notes that the Kansas case is an example of the most likely situation in which accreditation records would be released. Headache and pain treatment centers are prime targets for criminal investigations related to billing fraud, and accreditation records are most likely to be released in criminal cases rather than civil, he says.

"It has to be a broader investigation than the typical type of case where they look at billing records and talk with employees," he says. "They're not going to seek accreditation records unless they are looking very deeply into the provider's past activities."

Gaillard says federal prosecutors will almost always be able to get the accreditation records if they want them, but he says risk managers do not have to worry about the records being released in civil matters, such as a malpractice case.

"In any run-of-the-mill civil malpractice case, the accrediting body will be able to maintain confidentiality of those records under state law," he says. "You don't have to worry about plaintiffs' attorneys digging through your accreditation records for every routine malpractice case."

Sources

For more information on the release of accreditation records, contact:

• Robert Guenthner, JD, Partner, Sonnenschein Nath & Rosenthal, Chicago. Telephone: (312) 876-8961.

• Andrew P. Gaillard, JD, Partner, Day Pitney, Stamford, CT. Telephone: (203) 977-7550. E-mail: apgaillard@daypitney.com.

• Anthea Daniels, JD, Partner, Calfee, Halter & Griswold, Cleveland, OH. Telephone: (216) 622-8391. E-mail: adaniels@calfee.com.

• Sara Kay Wheeler, JD, Partner, King & Spalding, Atlanta. Telephone: (404) 572-4685. E-mail: skwheeler@kslaw.com.