LEGAL SERVICES BULLETIN
Gwen Dayton, Vice President and General Counsel January 2004
JCAHO Periodic Performance Review

Question: JCAHO has introduced Periodic Performance Review, with several options for compliance. Which option is best for Oregon hospitals?

Short Answer: Hospitals should not perform the Full Periodic Performance Review. Options 1 and 2 both present risks or negatives, but are acceptable. OAHHS recommends consideration of Option 1 as the best method of compliance. See the full discussion below.

Background:
The JCAHO Periodic Performance Review (PPR) is a core provision of the Shared Visions-New Pathways program. It requires a midpoint assessment of compliance with JCAHO standards and appropriate follow up action. All information developed through this process is to be shared with the JCAHO.

The PPR tool first became available on the “Jayco” extranet site November 1, 2003 for organizations due for survey on July 1, 2005. Hospitals approaching the midpoint of their accreditation cycle as of January 1, 2004 will be required to complete the PPR.

The American Hospital Association, OAHHS and other organizations have identified areas of legal risk associated with PPR compliance. Legal issues of concern for Oregon hospitals are:

• Waiver of confidentiality protection: Loss of state peer review confidentiality protections through disclosure of PPR results to JCAHO;
• Access by regulatory agencies: Oregon has what is known as “deemed status.” JCAHO accredited hospitals are deemed to be in compliance with Department of Human Services licensing regulations by virtue of JCAHO accreditation. The concern is that hospitals may be required to submit PPR results to the Department of Human Services, both compromising confidentiality and inviting regulatory action.

In response to confidentiality concerns, JCAHO developed several options for compliance.

Full PPR:

• Organization review of standards compliance at the midpoint of the accreditation cycle (18 months after a triennial survey) using JCAHO’s automated tool.
• Formulation of a plan of action addressing each element of performance scored partial or insufficient compliance. The plan must state how the matter will be corrected and how the success of the plan of action will be evaluated, if a measure of success is required.
• Electronic submission of the PPR to JCAHO.
• Organization must participate in teleconference with JCAHO Standards Interpretation Group to review all standards found to be not compliant.
• Hospitals must, in concert with medical staff, demonstrate that physicians were appropriately involved in the completion of the PPR and development of plans of action.

PPR Option 1:

• Organization completes the PPR but does not submit the results, any plans of action or measures of success to JCAHO;
• Organization attests that it has completed the PPR;
• Cannot use JCAHO automated tool because JCAHO would technically have access to PPR information. Will be able to print the standards and EPs from the PPR tools from which to do own assessment;
• Measures of success are made available to the on-site surveyors at the time of the triennial survey. Surveyors will validate whether measures of success data indicate performance sustained;
• Organization may elect to participate in teleconference related to standards issues with JCAHO staff, but this is optional;
• Organization must attest that after “careful consideration with legal counsel” the organization has elected not to participate in the full PPR;
• Hospitals must, in concert with medical staff, demonstrate that physicians were appropriately involved in the completion of the PPR and development of plans of action.

PPR Option 2:

• JCAHO surveyor assesses compliance with JCAHO standards by conducting a mid-cycle condensed on-site survey (approximately one-third the length of a typical full on-site survey);
• Organization pays a fee to cover costs;
• Corrective action plans and measures of success are completed and submitted to JCAHO for all areas where the organization is found to be in non-compliance;
• Organization must participate in teleconference with JCAHO staff to reach final agreement on the elements of plan of action and measures of success;
• At time of triennial survey, surveyors will validate whether measures of success data indicate that performance has been sustained;
• Organization must attest that after “careful consideration with legal counsel” the organization has elected not to participate in the full PPR.

Alternate Option 2 (Sometimes referred to as “Option 3”):

• Mid-cycle review performed as in Option 2 but, if organization chooses, no written documentation or report of the survey is left with the organization.
• Findings communicated orally, eliminating availability of a survey report for possible discovery.
• At subsequent fully surveys, surveyors would not discuss with the organization, unless asked to do so, the fact that any particular standard had been found out of compliance.

Oregon Confidentiality Law

• Peer Review: Oregon’s peer review statute (ORS 41.675) provides broad confidentiality protection for information that qualifies as peer review “data.” ORS 41.675 provides, in relevant part:

“(1) As used in this section, ‘peer review body’ includes tissue committees, governing bodies or committees including medical staff committees of a health care facility licensed under ORS 441…or any other medical group in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers ….’Peer review body’ also includes …peer review organizations.”

(2) As used in subsection (3) of this section, 'data' means all oral communications or written reports to a peer review body, and all notes or records created by or at the direction of a peer review body, including the communications, reports, notes or records created in the course of an investigation undertaken at the direction of a peer review body.

"(3) All data shall be privileged…" (Emphasis added).”

Hospital records and communications collected or created at the request of a peer review body for purposes of quality assurance are privileged and the hospital may not be compelled to disclose them.

The privileges accorded in ORS 41.675 may be waived, however, in cases where the hospital voluntarily discloses protected information to a third party that does not qualify as a peer review body. OEC 511. It is questionable whether JCAHO qualifies as a peer review body. While they perform a quality assurance role, no Oregon court has addressed this question and the statute does not clearly specify. Accordingly, Oregon hospitals must proceed with great caution when disclosing otherwise protected information to JCAHO.

“Deemed Status”
Oregon law provides that the Department of Human Services may accept JCAHO accreditation as evidence of compliance with acceptable standards. ORS 441.055(2). This is what is commonly known as “deemed status.” Some have expressed concern that the department will seek access to JCAHO Periodic Performance Review reports as part of its assessment of whether a hospital remains in compliance, both waiving confidentiality and potentially exposing the hospital to regulatory action.

Such a result is unlikely. The statute only speaks to the department accepting certificates by JCAHO as evidence of compliance, not the department independently reviewing underlying JCAHO survey reports. Further, a representative of the department assured OAHHS that they do not intend to access information other than the JCAHO certification of accreditation.

“Patient Safety Data” Protections
HB 2349, passed by the 2003 Legislative Assembly, provides confidentiality protections for “patient safety data” reported to a “patient safety reporting program.” The bill was intended to provide broad confidentiality protections for patient safety information. The question is whether the language of the bill applies to disclosures to JCAHO. Likely not.

“Patient safety data” includes oral communications or written reports, data, records… root cause analysis or action plans that are collected or developed to improve patient safety or health care quality that are either prepared for the purpose of reporting to a patient safety reporting program or are created by or at the direction of a patient safety reporting program.

“Patient safety reporting program” includes the Oregon Patient Safety Reporting Program or any other patient safety reporting program created to improve the safety and quality of patient care. Ch. 686 OR Laws 2003

While JCAHO certainly has as one of its goals the improvement of patient safety and quality of patient care, it is not a reporting program. Hospitals comply with JCAHO standards but do not actively report patient safety to them. HB 2349 is new law, however, so future court decisions or legislative statements may determine that disclosures to JCAHO are protected. For now, however, hospitals are advised not to rely exclusively on this protection.

Recommendations
Disclosures to JCAHO have always presented confidentiality risks. To limit this risk as much as possible Oregon JCAHO accredited hospitals should consider using Option 1 to fulfill their Periodic Performance Review obligation. It involves the least disclosure of hospital information at the least cost. We describe the “pros and cons” of each option below.

Full PPR:
Reasons to choose this option:

• Use of JCAHO fully automated tool and electronic transmission;
• No survey cost;
• Assures consistency in accreditation because the scoring methodology for the PPR is the same as that used by surveyors during the on-site survey.

Reason not to choose this option:

• All information developed as part of self-assessment shared with JCAHO. Involves the greatest disclosure of hospital records and thus presents the most significant risk that sensitive records will be opened to discovery by third parties.

Option 1:
Reasons to choose this option:

• Only “Measures of Success” are disclosed to JCAHO, and teleconference is optional. Less information disclosed means less risk that significant information will be opened to discovery by third parties. But, remember that some risk always exists with any JCAHO disclosure;
• No survey fee;
• Assures consistency in accreditation because the scoring methodology for the PPR is the same as that used by surveyors during the on-site survey.

Reason not to choose this option:

• No use of JCAHO automated tool (but can print standards and EP from PPR tool).

Option 2, including alternate:
Reason to choose this option:

• Hospital need not do self-assessment; JCAHO will perform on-site condensed survey.
• Alternate limits available discovery.

Reasons not to choose this option:

• Must pay survey fee;
• Still involves extensive disclosure of hospital records to JCAHO, but the same type of disclosure that already occurs pursuant to the regular survey process (same risk as now exists).

Further Recommendations to Guard Confidentiality:
When submitting information to JCAHO:
To protect all available privileges as much as possible, consider submitting a cover letter with all information submitted to JCAHO that includes language similar to the following:

“This data is submitted to and in cooperation with the Joint Commission of Accredited Health Care Organizations in its capacity as a ‘Peer Review Body’ as defined in ORS 41.675 and as a ‘Patient Safety Reporting Program’ as defined in Ch. 686 Or Laws 2003 and in connection with bona fide medical research, quality assurance, and utilization review. All information included herein is PRIVILEGED and CONFIDENTIAL and shall not be disclosed.”

Ensure self-assessment done by peer review body: Both Full PPR and Option 1 involve internal self-assessment. Option 1 does not require disclosure of this self-assessment outside the hospital, but to ensure that it falls within the protections of Oregon’s peer review law the hospital must make sure the self-assessment is performed by a peer review body.

How to Indicate Your Selected Option:
The full PPR, or the selection of an option to the full PPR, is completed and submitted to JCAHO electronically using JCAHO’s extranet customer portal called “jayco.” If you select an option, the electronic tool automatically provides a screen with the attestation and instructions on how to complete it.

This author of this Legal Services Bulletin serves as counsel for the Oregon Association of Hospitals and Health Systems (OAHHS) and not of any individual hospital. This Legal Services Bulletin is intended as general guidance for hospital members of OAHHS. It does not constitute formal legal advice. For such formal legal advice, hospitals must seek the counsel of their own private attorney.

If you have questions about this or other legal/policy issues, feel free to contact Gwen Dayton at gdayton@oahhs.org.