PRINTER'S NO. 1585
No. 1270 Session of 2003
INTRODUCED BY BENNINGHOFF, CIVERA, MACKERETH, S. MILLER, ADOLPH,
ARMSTRONG, CREIGHTON, FLICK, HANNA, HERMAN, LaGROTTA, LEH,
MARSICO, METCALFE, SATHER, E. Z. TAYLOR, WATSON AND SCAVELLO,
MAY 5, 2003
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, MAY 5, 2003
AN ACT
1 Providing for peer review for the medical profession;
2 establishing the Statewide Peer Review Council; and providing
3 for functions of the Department of Health, the State Board of
4 Medicine and the State Board of Osteopathic Medicine.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Medical
9 Licensure Peer Review Act.
10 Section 2. Legislative finding.
11 The General Assembly finds that there is a compelling need in
12 this Commonwealth for fair, unbiased, credible and confidential
13 peer review of the quality of health care rendered by physicians
14 in hospital settings and for findings of substandard care in
15 such peer review proceedings to be shared with physician
16 licensure boards for appropriate corrective action.
17 Section 3. Definitions.
18 The following words and phrases when used in this act shall
1 have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Commission." The Patient Safety Commission of the
4 Commonwealth.
5 "Council." The Statewide Peer Review Council established
6 under section 4.
7 "Department." The Department of Health of the Commonwealth.
8 "Physician licensure board." The State Board of Medicine or
9 the State Board of Osteopathic Medicine, as appropriate.
10 "Secretary." The Secretary of Health of the Commonwealth.
11 Section 4. Council.
12 (a) Establishment.--The Statewide Peer Review Council is
13 established as an independent council.
14 (b) Composition.--The council shall consist of the
15 following:
16 (1) The secretary or, if the secretary is not a
17 physician, the Physician General.
18 (2) Four physicians appointed by the Governor, taking
19 into consideration nominations of eight qualified individuals
20 jointly recommended by the Pennsylvania Medical Society and
21 the Pennsylvania Osteopathic Medical Association.
22 (3) Two representatives of hospitals appointed by the
23 Governor, taking into consideration nominations of four
24 qualified individuals recommended by the Hospital and Health
25 System Association of Pennsylvania.
26 (4) Two representatives of patients who are not
27 primarily involved in the provision of health care or
28 representation of patients in medical liability actions,
29 appointed by the Governor.
30 (c) Appointment process.--In the case of each appointment to
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1 be made taking into consideration nominations supplied by a
2 specified organization, that organization shall consult with and
3 provide a list which reflects the input of other equivalent
4 organizations representing similar interests. The Governor has
5 the discretion to request additions to the list originally
6 submitted. Additional names shall be provided not later than 15
7 days after the request. Appointments shall be made by the
8 Governor no later than 90 days after receipt of the original
9 list. If, for any reason, any specified organization supplying a
10 list should cease to exist, then the Governor shall specify a
11 new equivalent organization to fulfill the responsibilities.
12 (d) Chairperson and vice chairperson.--The members shall
13 annually elect, by a majority vote of the members, a chairperson
14 and a vice chairperson of the council. The chairperson must be a
15 physician on the council, and the vice chairperson must be a
16 hospital representative on the council.
17 (e) Quorum and vote.--Five members, a majority of which
18 shall be made up of physicians, constitutes a quorum for the
19 transaction of business. An action by the majority of the
20 members present at any meeting in which there is a quorum shall
21 be deemed to be the action of the council. All members have the
22 right to vote.
23 (f) Meetings.--Unless otherwise provided in this section,
24 all meetings of the council shall be advertised and conducted
25 under 65 Pa.C.S. Ch. 7 (relating to open meetings).
26 (1) The council shall meet at least once every two
27 months and may provide for special meetings as it deems
28 necessary. Meeting dates shall be set by a majority vote of
29 the members of the council or by the call of the chairperson
30 upon seven days' notice to all council members.
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1 (2) All meetings of the council shall be publicly
2 advertised, and shall be open to the public, but the council,
3 through its bylaws, may provide for executive sessions of the
4 council on subjects permitted to be discussed under 65
5 Pa.C.S. § 708 (relating to executive sessions) or otherwise
6 required to be confidential under this act. No act of the
7 council shall be taken in an executive session unless the
8 action is required to be confidential under this act.
9 (3) The council shall publish a schedule of its meetings
10 in the Pennsylvania Bulletin and in at least one newspaper in
11 general circulation in this Commonwealth. The notice shall be
12 published at least once in each calendar quarter and shall
13 list the schedule of meetings of the council to be held in
14 the subsequent calendar quarter. The notice shall specify the
15 date, time and place of the meeting and shall state that the
16 council's meetings are open to the general public, except for
17 executive sessions.
18 (4) All action taken by the council shall be taken in
19 open public session unless the action is required to be
20 confidential under this act. Action of the council shall not
21 be taken except upon the affirmative vote of a majority of
22 the members of the council present.
23 (g) Bylaws.--The council shall adopt bylaws, not
24 inconsistent with this act, and may appoint committees or elect
25 officers subordinate to those provided for in subsection (e) as
26 it deems advisable.
27 (h) Compensation and expenses.--The members of the council
28 shall not receive a salary or per diem allowance for serving as
29 members of the council but shall be reimbursed for actual and
30 necessary expenses incurred in the performance of their duties.
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1 Expenses include reimbursement of travel and living expenses
2 while engaged in council business.
3 (i) Terms.--
4 (1) The member under subsection (b)(1) shall serve ex
5 officio.
6 (2) For members under subsection (b)(2):
7 (i) One member shall serve an initial term until
8 June 30, 2004.
9 (ii) Two members shall serve initial terms until
10 June 30, 2005.
11 (iii) Two members shall serve initial terms until
12 June 30, 2006.
13 (iv) Thereafter, each member shall serve a three-
14 year term.
15 (v) A member shall continue in office at the end of
16 a term until his successor is appointed.
17 (3) For members under subsection (b)(3):
18 (i) One member shall serve an initial term until
19 June 30, 2004.
20 (ii) One member shall serve an initial term until
21 June 30, 2005.
22 (iii) Thereafter, each member shall serve a three-
23 year term.
24 (iv) A member shall continue in office at the end of
25 a term until his successor is appointed.
26 (4) For members under subsection (b)(4):
27 (i) One member shall serve an initial term until
28 June 30, 2004.
29 (ii) One member shall serve an initial term until
30 June 30, 2006.
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1 (iii) Thereafter, each member shall serve a three-
2 year term.
3 (iv) A member shall continue in office at the end of
4 a term until his successor is appointed.
5 (5) Vacancies on the council shall be filled in the same
6 manner in which they were originally designated under
7 subsection (b), within 60 days of the vacancy. If the
8 Governor fails to act within 60 days of the vacancy, the
9 council chairperson may appoint one of the individuals
10 recommended for the vacancy until the appointing authority
11 makes the appointment.
12 (6) A member may be removed for just cause by the
13 appointing authority.
14 (j) Commencement of operations.--
15 (1) Within 60 days after the effective date of this
16 section, each organization or individual required to make
17 nominations to the Governor under subsection (b) shall submit
18 the list.
19 (2) Within 90 days of the effective date of this
20 section, the Governor shall make all of the appointments
21 called for in subsection (b). The council shall begin
22 operations immediately following these appointments.
23 (k) Subsequent appointments.--Submission of recommended
24 individuals and appointment of council members for the second
25 and succeeding terms shall be made in the same manner as
26 prescribed in subsection (b), except that:
27 (1) Organizations required under subsection (b) to
28 submit lists of recommended individuals shall do so at least
29 60 days prior to expiration of the council members' terms.
30 (2) The Governor shall make appointments at least 30
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1 days prior to expiration of the council members' terms. If
2 the appointments are not made within the specified time, the
3 council chairperson may make interim appointments from the
4 lists of recommended individuals. An interim appointment
5 shall be valid only until the Governor makes the required
6 appointment. Whether the appointment is by the Governor or by
7 the chairperson of the council, the appointment shall become
8 effective immediately upon expiration of the incumbent
9 member's term.
10 (l) Appointments of acting councilors.--If an organization
11 fails to submit a list of recommended individuals as required
12 under subsection (b) within the time limits in subsection (j) or
13 (k), the Governor shall appoint as many acting councilors as
14 required under subsection (b) until the list of recommended
15 individuals is submitted by the original organization.
16 Section 5. Administration.
17 (a) The council has the following powers and duties:
18 (1) To make and execute contracts and other instruments,
19 including those for purchase of services and purchase or
20 leasing of equipment and supplies, necessary or convenient to
21 the exercise of the powers of the council.
22 (2) To conduct examinations and investigations, and to
23 hear testimony and take, under oath or affirmation at public
24 hearings, on matters necessary to carry out its duties.
25 (3) Provide independent peer review of the quality of
26 medical care rendered by a physician in a hospital upon the
27 request of an interested person, as provided in this act.
28 (4) Make annual reports to the General Assembly on the
29 peer review conducted by the council, subject to the
30 confidentiality requirements in section 9.
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1 (5) Promulgate regulations to carry out this act.
2 (b) Staff and facilities.--The department shall provide the
3 council with the necessary staff and facilities.
4 Section 6. Peer review proceedings.
5 (a) Persons authorized to request review.--For the purposes
6 of this act, any of the following shall be an interested person
7 authorized to request a peer review:
8 (1) The physician who rendered the care.
9 (2) The hospital in which the care was rendered.
10 (3) A physician member of that hospital's medical staff.
11 (4) The patient who received the care or the patient's
12 personal representative.
13 (b) Peer review committee.--The peer review shall be
14 performed by a committee of physicians appointed by the council
15 in accordance with regulations promulgated by the council.
16 (c) Qualifications.--
17 (1) The members of the peer review committee must meet
18 the following qualifications:
19 (i) Possess an unrestricted license to practice
20 medicine or osteopathic medicine in any state or the
21 District of Columbia.
22 (ii) Be substantially familiar with the applicable
23 standard of care for the specific care at issue as of the
24 time the care was rendered.
25 (iii) Except as set forth in paragraph (3), be
26 engaged in active clinical practice or teaching in the
27 same subspecialty as the physician under review or in a
28 subspecialty which has a substantially similar standard
29 of care for the specific care at issue.
30 (2) Except as set forth in paragraph (3), a majority of
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1 the committee must be board certified in the same
2 subspecialty as the physician under review or in a
3 subspecialty which has a substantially similar standard of
4 care for the specific care at issue.
5 (3) Notwithstanding paragraphs (1)(iii) and (2), the
6 applicable subspecialty for purpose of the active clinical
7 practice or teaching and board certification requirements may
8 be a subspecialty which provides the care at issue if the
9 physician under review is alleged to have acted outside of
10 his or her subspecialty.
11 (4) A majority of the committee must be engaged in
12 active clinical practice for at least 20 hours per week.
13 (5) The members of the committee must have no conflict
14 of interest by virtue of being affiliated with or a
15 competitor of the physician under review or otherwise. The
16 council shall use physicians who practice or teach out-of-
17 state if appropriate to meet this requirement.
18 (d) Blind review.--The council shall endeavor to shield the
19 identity of the patient, the hospital and the physician under
20 review, and any other information tending to reveal their
21 identities from the members of the committee, except to the
22 extent that disclosure of the information is reasonably required
23 to conduct the peer review.
24 (e) Request for review.--A request for review shall identify
25 with particularity the medical care which is to be reviewed and,
26 except in the case of a review requested by the physician who
27 rendered the care, any alleged deficiencies.
28 (f) Notice of request for review.--Upon receipt of a request
29 for review, the council shall notify the physician whose care is
30 requested to be reviewed and the hospital in which the care was
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1 rendered unless the hospital submitted the request. The notice
2 shall identify with particularity the medical care that will be
3 reviewed and any alleged deficiencies. If the review was
4 requested by the physician, the notice shall direct the hospital
5 to notify the council of any alleged deficiencies in the care.
6 (g) Hearing.--The committee shall hold a hearing on the
7 matter and base its decision on the testimony and other evidence
8 received at the hearing.
9 (h) Legal counsel.--The department shall furnish the
10 committee with legal counsel to advise the committee on the
11 conduct of the hearing.
12 (i) Parties.--The parties to the proceeding include the
13 physician under review and the hospital if the hospital has
14 alleged that the care was deficient.
15 (j) Rights of parties.--The parties shall be entitled to
16 attend the hearing, be represented by counsel, to present
17 relevant evidence, cross-examine witnesses of other parties and
18 the committee, object to evidence of other parties and the
19 committee and submit a written statement at the end of the
20 hearing. The parties shall be notified of their rights under
21 this section.
22 (k) Additional evidence.--The committee may question
23 witnesses and seek additional testimony and other evidence
24 relevant to its determination.
25 (l) Powers of committee.--The committee may administer oaths
26 and issue subpoenas to compel the presence of witnesses and the
27 production of documents relevant to its determination.
28 (m) Decision.--The committee shall render a written
29 determination with findings of fact and any opinions of the
30 committee, to a reasonable degree of medical certainty,
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1 regarding the quality of the care. The decision may include
2 recommendations regarding appropriate corrective action,
3 including education, supervision or other limitations on scope
4 of clinical privileges.
5 (n) Notice of decision.--The committee shall provide a
6 written decision to the reviewed physician and the hospital.
7 (o) Regulations.--The proceedings shall be conducted in
8 accordance with regulations established by the council. The
9 proceedings shall not be subject to 2 Pa.C.S. Ch. 5 Subch. A
10 (relating to practice and procedure of Commonwealth agencies)
11 and Ch. 7 Subch. A (relating to judicial review of Commonwealth
12 agency action).
13 Section 7. Finality of decision.
14 (a) Limited review.--The peer review committee's decision
15 shall be final and shall not be subject to further review by the
16 council unless it is clearly shown that a party was denied a
17 hearing or that fraud, misconduct, corruption or other
18 irregularity caused the rendition of an unjust, inequitable or
19 unconscionable decision.
20 (b) Binding.--Both the reviewed physician and the hospital
21 shall be bound by the committee's decision regarding the quality
22 of care rendered by the physician with respect to any
23 credentialing action related to the reviewed medical care.
24 Section 8. Report to physician licensure boards.
25 If the peer review committee determines that the reviewed
26 physician failed to act in conformance with the accepted
27 standard of care, the committee shall forward its decision and
28 the record of the proceeding to the physician licensure board.
29 The licensure board shall review the decision and record and
30 institute a disciplinary investigation if appropriate. The
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1 licensure board shall treat the decision and record as
2 confidential in accordance with section 9.
3 Section 9. Confidentiality.
4 (a) Peer review protection.--Except as set forth in this
5 act, the peer review proceedings, including the request for
6 review, the record of the hearing, any other submissions of the
7 parties, the deliberations of the peer review committee and the
8 decision of the committee, shall be confidential and subject to
9 the same limits on disclosure and introduction into evidence as
10 set forth in the act of July 20, 1974 (P.L.564, No.193), known
11 as the Peer Review Protection Act. Neither the act of June 21,
12 1957 (P.L.390, No.212), referred to as the Right-to-Know Law,
13 nor 65 Pa.C.S. Ch. 7 (relating to open meetings) apply to the
14 peer review proceedings. The decision of the committee and any
15 other information received by the hospital during or otherwise
16 related to the proceedings shall be treated by the hospital as
17 protected peer review information, subject to the Peer Review
18 Protection Act.
19 (b) Use by licensure board.--The decision and record shall
20 be admissible in any disciplinary proceeding brought by a
21 physician licensure board against the reviewed physician. The
22 record of the disciplinary proceedings shall be confidential and
23 the proceedings shall not be open to the public or subject to
24 the Right-to-Know Law or 65 Pa.C.S. Ch. 7 to the extent
25 necessary to preserve the confidentiality of any admitted
26 confidential peer review information.
27 Section 10. Patient safety.
28 The council shall study the findings of the peer reviews
29 performed under this act consistent with the confidentiality
30 requirements of section 9 and make recommendations as to
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1 measures which would improve patient safety. These
2 recommendations shall be forwarded to the commission and the
3 physician licensure board. The recommendations and information
4 provided in support of recommendations may not disclose
5 confidential peer review information.
6 Section 11. Immunity from liability.
7 (a) Immunity.--Notwithstanding any other provision of law,
8 no person providing information to a peer review committee shall
9 be held, by reason of having provided the information, to have
10 violated any criminal law or to be civilly liable under any law,
11 unless:
12 (1) the information is unrelated to the performance of
13 the functions of the committee; or
14 (2) the person provides false information with knowledge
15 or reason to know that the information is false.
16 (b) Due care.--
17 (1) Except as set forth in paragraph (2), a member of a
18 committee or an individual who furnishes professional counsel
19 or services to the committee shall be held, by reason of the
20 performance by him of a function authorized or required by
21 the committee, criminally or civilly liable if the member or
22 individual exercises due care in the performance of the
23 function.
24 (2) Paragraph (1) shall not apply with respect to any
25 action taken by an individual if the individual in taking
26 such action was motivated by malice toward any person
27 affected by the action.
28 Section 12. Budget and funding.
29 The council's operations shall be funded exclusively by
30 appropriations from the General Fund. No fees shall be levied by
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1 the council for peer reviews conducted by the council.
2 Section 20. Effective date.
3 This act shall take effect immediately.
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