§ 23-17.21-8 - Privilege and confidentiality protections.
SECTION 23-17.21-8
§ 23-17.21-8 Privilege and confidentialityprotections. – (a) Privilege. Notwithstanding any other provision of federal, state, orlocal law to the contrary, and subject to subsection (c) herein, patient safetywork product and a document log shall be privileged and shall not be: (1)subject to a federal, state, or local civil, criminal, or administrativesubpoena or order, including in a federal, state, or local civil oradministrative disciplinary proceeding against a provider; (2) subject todiscovery in connection with a federal, state, or local civil, criminal, oradministrative proceeding, including in a federal, state, or local civil oradministrative disciplinary proceeding against a provider; (3) subject todisclosure pursuant to § 552 of title 5, United States Code (commonlyknown as the Freedom of Information Act), Title 38, chapter 2 of the generallaws (commonly known as the Access to Public Records Law), or any other similarfederal, state, or local law; (4) admitted as evidence in any federal, state,or local governmental civil proceeding, criminal proceeding, administrativerulemaking proceeding, or administrative adjudicatory proceeding, including anysuch proceeding against a provider; or (5) admitted in a professionaldisciplinary proceeding of a professional disciplinary body established orspecifically authorized under state law.
(b) Confidentiality of patient safety – work product anddocument log – notwithstanding any other provision of federal, state orlocal law to the contrary, and subject to subsection (c) herein, the patientsafety work product and document log shall be confidential and shall not bedisclosed.
(1) Exceptions from privilege and confidentiality.Subsections (a) and (b) herein shall not apply to, and shall not be construedto prohibit, one or more of the following disclosures:
(A) Disclosure of relevant patient safety work product anddocument log for use in a criminal proceeding, but only after a court makes anin camera determination that such patient safety work product and document logcontains evidence of a criminal act and that such patient safety work productand document log is material to the proceeding and not reasonably availablefrom any other source; or
(B) Disclosure of identifiable patient safety work productand document log if authorized by each provider or reporting entity identifiedin such work product.
(2) Exceptions from confidentiality – subsection (b)herein shall not apply to, and shall not be construed to prohibit one or moreof the following voluntary disclosures:
(A) Disclosure of patient safety work product and documentlog to a reporting entity to carry out patient safety activities;
(B) Disclosure of patient safety work product and documentlog to grantees, contractors, or other entities carrying out research,evaluation, or demonstration projects authorized, funded, certified, orotherwise sanctioned by rule or other means by the director, for the purpose ofconducting research to the extent that disclosure of protected healthinformation would be allowed for such purpose under the Health InsurancePortability and Accountability Act of 1996, and its implementing regulations(45 C.F.R. Parts 160-164);
(C) Disclosure by a provider to the Food and DrugAdministration with respect to a product or activity regulated by the Food andDrug Administration;
(D) Voluntary disclosure of patient safety work product anddocument log by a provider to an accrediting body that accredits that provider;or
(E) Disclosure of patient safety work product and documentlog to law enforcement authorities relating to the commission of a crime, or toan event reasonably believed to be a crime, if the person making the disclosurebelieves, reasonably under the circumstances, that the patient safety workproduct and document log that is disclosed is necessary for criminal lawenforcement purposes.
(1) In general. Patient safety work product and/ordocument log that is disclosed under subsection (c) herein shall continue to beprivileged and confidential as provided for in subsections (a) and (b) herein,and such disclosure shall not be treated as a waiver of privilege orconfidentiality, and the privileged and confidential nature of such workproduct and/or document log shall also apply to such work product and/ordocument log in the possession or control of a person to whom such work productand log was disclosed.
(2) Exception. Notwithstanding subsection (1) hereinand subject to subsection (3) herein, if patient safety work product and/ordocument log is admitted into evidence in a criminal proceeding, theconfidentiality protections provided for in subsection (b) herein shall nolonger apply to the work product and/or log so disclosed; and
(3) Construction. Subsection (2) herein shall not beconstrued as terminating or limiting the privilege or confidentialityprotections provided for in subsections (a) or (b) herein with respect topatient safety work product and document log other than the specific patientsafety work product and document log disclosed as provided for in subsection(c) herein.
(A) Patient safety organizations.
(i) In general. A patient safety organization shallnot be compelled to disclose information collected or developed under this partwhether or not such information is patient safety work product and/or adocument log unless such information is identified, it is not patient safetywork product and/or a document log, and it is not reasonably available fromanother source.
(ii) Nonapplication. The limitation contained inclause (i) herein shall not apply in an action against a patient safetyorganization or with respect to disclosures pursuant to subsection (c)(1)herein.
(B) Providers. An accrediting body shall not take anaccrediting action against a provider based on the good faith participation ofthe provider in the collection, development, reporting, or maintenance ofpatient safety work product and a document log in accordance with this part. Anaccrediting body may not require a provider or reporting entity to reveal itscommunications with any patient safety organization established in accordancewith this part.
(1) In general. A provider may not take any adverseemployment action, as described in subsection (2) herein, against an individualbased upon the fact that the individual, in good faith, reported theinformation:
(A) To the provider with the intention of having theinformation reported to a patient safety organization; or
(B) Directly to a patient safety organization.
(2) Adverse employment action. For the purposes ofthis subsection, an adverse employment action includes:
(A) Loss of employment, the failure to promote an individual,or the failure to provide any other employment related benefit for which theindividual would otherwise be eligible; or
(B) An adverse evaluation or decision made in relation toaccreditation, certification, credentialing, or licensing of the individual.
(1) Civil monetary penalty. Subject to subsection (3)herein, a person who discloses identifiable patient safety work product and/ordocument log in a knowing or reckless violation of subsection (b) herein shallbe subject to a civil monetary penalty of not more than ten thousand dollars($10,000) for each act constituting such violation.
(2) Relation to Health Insurance Portability andAccountability Act of 1996. Penalties shall not be imposed both under thissubsection and under the regulations issued pursuant to § 264(c)(1) of theHealth Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d-2 note) for a single act or omission.