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TJC counsel underscores privacy commitment
The Joint Commission (TJC) is underscoring its commitment to keep accreditation records confidential and its willingness to resist prosecutors' requests as far as the law will allow.
Hal Bressler, JD, general counsel to TJC in Oakbrook Terrace, IL, tells Healthcare Risk Management that the accreditation process and quality improvement efforts depend on providers sharing sensitive information with TJC, and that the group realizes confidentiality is paramount to that exchange.
"We take this extremely seriously in terms of maintaining the confidentiality of accreditation information," Bressler says. "We have taken it extremely seriously from the beginning. In the 1980s, we accepted a contempt citation and took the question of confidentiality of these documents up to the Illinois Supreme Court. We have an Illinois Supreme Court decision from 1985 that says our documents are privileged under the Illinois Medical Studies Act and not subject to production."
Recent concerns about records
TJC's ability to keep prying eyes out of accreditation records was questioned after a recent court case in Kansas. 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 TJC accreditation records, explains Robert Guenthner, JD, a partner with the law firm of Sonnenschein Nath & Rosenthal in Chicago, who has studied the case. TJC resisted the prosecutor's request, on the basis that Illinois law prohibited the release of the information.
The prosecutor then obtained a court order from a federal court, and TJC complied. Some sensitive information, such as patient names and all communication related to sentinel events, was redacted. The order also included strict limits on the dissemination of the information, Guenthner says.
Federal law can supersede 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, Bressler says.
TJC's legal position is that the federal court is supposed to balance the federal need for the documents against the obligation to recognize the state privilege if it can, Bressler says. The federal court isn't supposed to just say that there is no federal peer review protection but rather to balance the competing needs.
That is why the position of the TJC is that the subpoena alone is not good enough, that the federal court must enter an order for the TJC to produce the documents, along with redaction, return of the documents, and other requirements, Bressler says.
"Everything we do in this regard is because we realize candid communication is critical to our mission of improving care and improving patient safety," Bressler says. "We don't do that to help anyone win a lawsuit. We're neutral in litigation, but we are not neutral on maintaining the confidentiality of our materials and communications."
Records don't yield much
In fact, Bressler points out that TJC still will not confirm or deny that the Headache & Pain center was involved in the recent Kansas dispute over releasing records.
"The documents that were made public do not include the name of the organization in question, and we take this so seriously that I won't confirm or deny who that subpoena was issued under," he says.
Even in the few cases in which investigators were successful in obtaining TJC records, Bressler says prosecutors have not found much information useful to them. The most sensitive documents, such as the official accreditation report and TJC findings, take the form of confidential communication between TJC and the provider, he explains.
"That means that if the prosecutor is truly interested in obtaining those items, there are two places where it can be found: The Joint Commission and the organization," he says. "That's one reason we get so few of these requests."
For more information on the Joint Commission's commitment to confidentiality, contact:
Hal Bressler, JD, General Counsel, The Joint Commission, Oakbrook Terrace, IL. Telephone: (630) 792-5672.
Robert Guenthner, JD, Partner, Sonnenschein Nath & Rosenthal, Chicago. Telephone: (312) 876-8961. E-mail: firstname.lastname@example.org .