PRINTER'S NO. 3369
No. 2359 Session of 2006
INTRODUCED BY DeLUCA, BEBKO-JONES, CALTAGIRONE, DALEY, DeWEESE,
EACHUS, FABRIZIO, GOODMAN, GRUCELA, JAMES, JOSEPHS, RAPP,
RUFFING, SANTONI, SIPTROTH, SOLOBAY, TANGRETTI, THOMAS AND
WALKO, JANUARY 23, 2006
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE,
JANUARY 23, 2006
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.
1 The following words and phrases when used in this act shall
2 have the meanings given to them in this section unless the
3 context clearly indicates otherwise:
4 "Council." The Statewide Peer Review Council established
5 under section 4.
6 "Department." The Department of Health of the Commonwealth.
7 "Physician licensure board." The State Board of Medicine or
8 the State Board of Osteopathic Medicine, as appropriate.
9 "Secretary." The Secretary of Health of the Commonwealth.
10 Section 4. Council.
11 (a) Establishment.--The Statewide Peer Review Council is
12 established as an independent council.
13 (b) Composition.--The council shall consist of the
14 following:
15 (1) The secretary or, if the secretary is not a
16 physician, the Physician General.
17 (2) Four physicians appointed by the Governor, taking
18 into consideration nominations of eight qualified individuals
19 jointly recommended by the Pennsylvania Medical Society and
20 the Pennsylvania Osteopathic Medical Association.
21 (3) Two representatives of hospitals appointed by the
22 Governor, taking into consideration nominations of four
23 qualified individuals recommended by the Hospital and Health
24 System Association of Pennsylvania.
25 (4) Two representatives of patients who are not
26 primarily involved in the provision of health care or
27 representation of patients in medical liability actions,
28 appointed by the Governor.
29 (c) Appointment process.--In the case of each appointment to
30 be made taking into consideration nominations supplied by a
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1 specified organization, that organization shall consult with and
2 provide a list which reflects the input of other equivalent
3 organizations representing similar interests. The Governor has
4 the discretion to request additions to the list originally
5 submitted. Additional names shall be provided not later than 15
6 days after the request. Appointments shall be made by the
7 Governor no later than 90 days after receipt of the original
8 list. If, for any reason, any specified organization supplying a
9 list should cease to exist, then the Governor shall specify a
10 new equivalent organization to fulfill the responsibilities.
11 (d) Chairperson and vice chairperson.--The members shall
12 annually elect, by a majority vote of the members, a chairperson
13 and a vice chairperson of the council. The chairperson must be a
14 physician on the council, and the vice chairperson must be a
15 hospital representative on the council.
16 (e) Quorum and vote.--Five members, a majority of which
17 shall be made up of physicians, constitutes a quorum for the
18 transaction of business. An action by the majority of the
19 members present at any meeting in which there is a quorum shall
20 be deemed to be the action of the council. All members have the
21 right to vote.
22 (f) Meetings.--Unless otherwise provided in this section,
23 all meetings of the council shall be advertised and conducted
24 under 65 Pa.C.S. Ch. 7 (relating to open meetings).
25 (1) The council shall meet at least once every two
26 months and may provide for special meetings as it deems
27 necessary. Meeting dates shall be set by a majority vote of
28 the members of the council or by the call of the chairperson
29 upon seven days' notice to all council members.
30 (2) All meetings of the council shall be publicly
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1 advertised, and shall be open to the public, but the council,
2 through its bylaws, may provide for executive sessions of the
3 council on subjects permitted to be discussed under 65
4 Pa.C.S. § 708 (relating to executive sessions) or otherwise
5 required to be confidential under this act. No act of the
6 council shall be taken in an executive session unless the
7 action is required to be confidential under this act.
8 (3) The council shall publish a schedule of its meetings
9 in the Pennsylvania Bulletin and in at least one newspaper in
10 general circulation in this Commonwealth. The notice shall be
11 published at least once in each calendar quarter and shall
12 list the schedule of meetings of the council to be held in
13 the subsequent calendar quarter. The notice shall specify the
14 date, time and place of the meeting and shall state that the
15 council's meetings are open to the general public, except for
16 executive sessions.
17 (4) All action taken by the council shall be taken in
18 open public session unless the action is required to be
19 confidential under this act. Action of the council shall not
20 be taken except upon the affirmative vote of a majority of
21 the members of the council present.
22 (g) Bylaws.--The council shall adopt bylaws, not
23 inconsistent with this act, and may appoint committees or elect
24 officers subordinate to those provided for in subsection (e) as
25 it deems advisable.
26 (h) Compensation and expenses.--The members of the council
27 shall not receive a salary or per diem allowance for serving as
28 members of the council but shall be reimbursed for actual and
29 necessary expenses incurred in the performance of their duties.
30 Expenses include reimbursement of travel and living expenses
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1 while engaged in council business.
2 (i) Terms.--
3 (1) The member under subsection (b)(1) shall serve ex
4 officio.
5 (2) For members under subsection (b)(2):
6 (i) One member shall serve an initial term until
7 June 30, 2006.
8 (ii) Two members shall serve initial terms until
9 June 30, 2007.
10 (iii) Two members shall serve initial terms until
11 June 30, 2008.
12 (iv) Thereafter, each member shall serve a three-
13 year term.
14 (v) A member shall continue in office at the end of
15 a term until his successor is appointed.
16 (3) For members under subsection (b)(3):
17 (i) One member shall serve an initial term until
18 June 30, 2006.
19 (ii) One member shall serve an initial term until
20 June 30, 2007.
21 (iii) Thereafter, each member shall serve a three-
22 year term.
23 (iv) A member shall continue in office at the end of
24 a term until his successor is appointed.
25 (4) For members under subsection (b)(4):
26 (i) One member shall serve an initial term until
27 June 30, 2006.
28 (ii) One member shall serve an initial term until
29 June 30, 2008.
30 (iii) Thereafter, each member shall serve a three-
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1 year term.
2 (iv) A member shall continue in office at the end of
3 a term until his successor is appointed.
4 (5) Vacancies on the council shall be filled in the same
5 manner in which they were originally designated under
6 subsection (b), within 60 days of the vacancy. If the
7 Governor fails to act within 60 days of the vacancy, the
8 council chairperson may appoint one of the individuals
9 recommended for the vacancy until the appointing authority
10 makes the appointment.
11 (6) A member may be removed for just cause by the
12 appointing authority.
13 (j) Commencement of operations.--
14 (1) Within 60 days after the effective date of this
15 section, each organization or individual required to make
16 nominations to the Governor under subsection (b) shall submit
17 the list.
18 (2) Within 90 days of the effective date of this
19 section, the Governor shall make all of the appointments
20 called for in subsection (b). The council shall begin
21 operations immediately following these appointments.
22 (k) Subsequent appointments.--Submission of recommended
23 individuals and appointment of council members for the second
24 and succeeding terms shall be made in the same manner as
25 prescribed in subsection (b), except that:
26 (1) Organizations required under subsection (b) to
27 submit lists of recommended individuals shall do so at least
28 60 days prior to expiration of the council members' terms.
29 (2) The Governor shall make appointments at least 30
30 days prior to expiration of the council members' terms. If
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1 the appointments are not made within the specified time, the
2 council chairperson may make interim appointments from the
3 lists of recommended individuals. An interim appointment
4 shall be valid only until the Governor makes the required
5 appointment. Whether the appointment is by the Governor or by
6 the chairperson of the council, the appointment shall become
7 effective immediately upon expiration of the incumbent
8 member's term.
9 (l) Appointments of acting councilors.--If an organization
10 fails to submit a list of recommended individuals as required
11 under subsection (b) within the time limits in subsection (j) or
12 (k), the Governor shall appoint as many acting councilors as
13 required under subsection (b) until the list of recommended
14 individuals is submitted by the original organization.
15 Section 5. Administration.
16 (a) The council has the following powers and duties:
17 (1) To make and execute contracts and other instruments,
18 including those for purchase of services and purchase or
19 leasing of equipment and supplies, necessary or convenient to
20 the exercise of the powers of the council.
21 (2) To conduct examinations and investigations, and to
22 hear testimony and take, under oath or affirmation at public
23 hearings, on matters necessary to carry out its duties.
24 (3) Provide independent peer review of the quality of
25 medical care rendered by a physician in a hospital upon the
26 request of an interested person, as provided in this act.
27 (4) Make annual reports to the General Assembly on the
28 peer review conducted by the council, subject to the
29 confidentiality requirements in section 9.
30 (5) Promulgate regulations to carry out this act.
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1 (b) Staff and facilities.--The department shall provide the
2 council with the necessary staff and facilities.
3 Section 6. Peer review proceedings.
4 (a) Persons authorized to request review.--For the purposes
5 of this act, any of the following shall be an interested person
6 authorized to request a peer review:
7 (1) The physician who rendered the care.
8 (2) The hospital in which the care was rendered.
9 (3) A physician member of that hospital's medical staff.
10 (4) The patient who received the care or the patient's
11 personal representative.
12 (b) Peer review committee.--The peer review shall be
13 performed by a committee of physicians appointed by the council
14 in accordance with regulations promulgated by the council.
15 (c) Qualifications.--
16 (1) The members of the peer review committee must meet
17 the following qualifications:
18 (i) Possess an unrestricted license to practice
19 medicine or osteopathic medicine in any state or the
20 District of Columbia.
21 (ii) Be substantially familiar with the applicable
22 standard of care for the specific care at issue as of the
23 time the care was rendered.
24 (iii) Except as set forth in paragraph (3), be
25 engaged in active clinical practice or teaching in the
26 same subspecialty as the physician under review or in a
27 subspecialty which has a substantially similar standard
28 of care for the specific care at issue.
29 (2) Except as set forth in paragraph (3), a majority of
30 the committee must be board certified in the same
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1 subspecialty as the physician under review or in a
2 subspecialty which has a substantially similar standard of
3 care for the specific care at issue.
4 (3) Notwithstanding paragraphs (1)(iii) and (2), the
5 applicable subspecialty for purpose of the active clinical
6 practice or teaching and board certification requirements may
7 be a subspecialty which provides the care at issue if the
8 physician under review is alleged to have acted outside of
9 his or her subspecialty.
10 (4) A majority of the committee must be engaged in
11 active clinical practice for at least 20 hours per week.
12 (5) The members of the committee must have no conflict
13 of interest by virtue of being affiliated with or a
14 competitor of the physician under review or otherwise. The
15 council shall use physicians who practice or teach out-of-
16 state if appropriate to meet this requirement.
17 (d) Blind review.--The council shall endeavor to shield the
18 identity of the patient, the hospital and the physician under
19 review, and any other information tending to reveal their
20 identities from the members of the committee, except to the
21 extent that disclosure of the information is reasonably required
22 to conduct the peer review.
23 (e) Request for review.--A request for review shall identify
24 with particularity the medical care which is to be reviewed and,
25 except in the case of a review requested by the physician who
26 rendered the care, any alleged deficiencies.
27 (f) Notice of request for review.--Upon receipt of a request
28 for review, the council shall notify the physician whose care is
29 requested to be reviewed and the hospital in which the care was
30 rendered unless the hospital submitted the request. The notice
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1 shall identify with particularity the medical care that will be
2 reviewed and any alleged deficiencies. If the review was
3 requested by the physician, the notice shall direct the hospital
4 to notify the council of any alleged deficiencies in the care.
5 (g) Hearing.--The committee shall hold a hearing on the
6 matter and base its decision on the testimony and other evidence
7 received at the hearing.
8 (h) Legal counsel.--The department shall furnish the
9 committee with legal counsel to advise the committee on the
10 conduct of the hearing.
11 (i) Parties.--The parties to the proceeding include the
12 physician under review and the hospital if the hospital has
13 alleged that the care was deficient.
14 (j) Rights of parties.--The parties shall be entitled to
15 attend the hearing, be represented by counsel, to present
16 relevant evidence, cross-examine witnesses of other parties and
17 the committee, object to evidence of other parties and the
18 committee and submit a written statement at the end of the
19 hearing. The parties shall be notified of their rights under
20 this section.
21 (k) Additional evidence.--The committee may question
22 witnesses and seek additional testimony and other evidence
23 relevant to its determination.
24 (l) Powers of committee.--The committee may administer oaths
25 and issue subpoenas to compel the presence of witnesses and the
26 production of documents relevant to its determination.
27 (m) Decision.--The committee shall render a written
28 determination with findings of fact and any opinions of the
29 committee, to a reasonable degree of medical certainty,
30 regarding the quality of the care. The decision may include
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1 recommendations regarding appropriate corrective action,
2 including education, supervision or other limitations on scope
3 of clinical privileges.
4 (n) Notice of decision.--The committee shall provide a
5 written decision to the reviewed physician and the hospital.
6 (o) Regulations.--The proceedings shall be conducted in
7 accordance with regulations established by the council. The
8 proceedings shall not be subject to 2 Pa.C.S. Ch. 5 Subch. A
9 (relating to practice and procedure of Commonwealth agencies)
10 and Ch. 7 Subch. A (relating to judicial review of Commonwealth
11 agency action).
12 Section 7. Finality of decision.
13 (a) Limited review.--The peer review committee's decision
14 shall be final and shall not be subject to further review by the
15 council unless it is clearly shown that a party was denied a
16 hearing or that fraud, misconduct, corruption or other
17 irregularity caused the rendition of an unjust, inequitable or
18 unconscionable decision.
19 (b) Binding.--Both the reviewed physician and the hospital
20 shall be bound by the committee's decision regarding the quality
21 of care rendered by the physician with respect to any
22 credentialing action related to the reviewed medical care.
23 Section 8. Report to physician licensure boards.
24 If the peer review committee determines that the reviewed
25 physician failed to act in conformance with the accepted
26 standard of care, the committee shall forward its decision and
27 the record of the proceeding to the physician licensure board.
28 The licensure board shall review the decision and record and
29 institute a disciplinary investigation if appropriate. The
30 licensure board shall treat the decision and record as
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1 confidential in accordance with section 9.
2 Section 9. Confidentiality.
3 (a) Peer review protection.--Except as set forth in this
4 act, the peer review proceedings, including the request for
5 review, the record of the hearing, any other submissions of the
6 parties, the deliberations of the peer review committee and the
7 decision of the committee, shall be confidential and subject to
8 the same limits on disclosure and introduction into evidence as
9 set forth in the act of July 20, 1974 (P.L.564, No.193), known
10 as the Peer Review Protection Act. Neither the act of June 21,
11 1957 (P.L.390, No.212), referred to as the Right-to-Know Law,
12 nor 65 Pa.C.S. Ch. 7 (relating to open meetings) apply to the
13 peer review proceedings. The decision of the committee and any
14 other information received by the hospital during or otherwise
15 related to the proceedings shall be treated by the hospital as
16 protected peer review information, subject to the Peer Review
17 Protection Act.
18 (b) Use by licensure board.--The decision and record shall
19 be admissible in any disciplinary proceeding brought by a
20 physician licensure board against the reviewed physician. The
21 record of the disciplinary proceedings shall be confidential and
22 the proceedings shall not be open to the public or subject to
23 the Right-to-Know Law or 65 Pa.C.S. Ch. 7 to the extent
24 necessary to preserve the confidentiality of any admitted
25 confidential peer review information.
26 Section 10. Patient safety.
27 The council shall study the findings of the peer reviews
28 performed under this act consistent with the confidentiality
29 requirements of section 9 and make recommendations as to
30 measures which would improve patient safety. These
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1 recommendations shall be forwarded to the Patient Safety
2 Authority and the physician licensure board. The recommendations
3 and information provided in support of recommendations may not
4 disclose confidential peer review information.
5 Section 11. Immunity from liability.
6 (a) Immunity.--Notwithstanding any other provision of law,
7 no person providing information to a peer review committee shall
8 be held, by reason of having provided the information, to have
9 violated any criminal law or to be civilly liable under any law,
10 unless:
11 (1) the information is unrelated to the performance of
12 the functions of the committee; or
13 (2) the person provides false information with knowledge
14 or reason to know that the information is false.
15 (b) Due care.--
16 (1) Except as set forth in paragraph (2), a member of a
17 committee or an individual who furnishes professional counsel
18 or services to the committee shall be held, by reason of the
19 performance by him of a function authorized or required by
20 the committee, criminally or civilly liable if the member or
21 individual exercises due care in the performance of the
22 function.
23 (2) Paragraph (1) shall not apply with respect to any
24 action taken by an individual if the individual in taking
25 such action was motivated by malice toward any person
26 affected by the action.
27 Section 12. Budget and funding.
28 The council's operations shall be funded exclusively by
29 appropriations from the General Fund. No fees shall be levied by
30 the council for peer reviews conducted by the council.
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1 Section 20. Effective date.
2 This act shall take effect immediately.
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