§ 23-17.21-8. Privilege and confidentiality protections. (a) Privilege. Notwithstanding any other provision of federal, state, or local law to the contrary, and subject to subsection (c) herein, patient safety work product and a document log shall be privileged and shall not be: (1) subject to a federal, state, or local civil, criminal, or administrative subpoena or order, including in a federal, state, or local civil or administrative disciplinary proceeding against a provider; (2) subject to discovery in connection with a federal, state, or local civil, criminal, or administrative proceeding, including in a federal, state, or local civil or administrative disciplinary proceeding against a provider; (3) subject to disclosure pursuant to § 552 of title 5, United States Code (commonly known as the Freedom of Information Act), Title 38, chapter 2 of the general laws (commonly known as the Access to Public Records Law), or any other similar federal, state, or local law; (4) admitted as evidence in any federal, state, or local governmental civil proceeding, criminal proceeding, administrative rulemaking proceeding, or administrative adjudicatory proceeding, including any such proceeding against a provider; or (5) admitted in a professional disciplinary proceeding of a professional disciplinary body established or specifically authorized under state law.

(b) Confidentiality of patient safety - work product and document log - notwithstanding any other provision of federal, state or local law to the contrary, and subject to subsection (c) herein, the patient safety work product and document log shall be confidential and shall not be disclosed.

(c) Exceptions.

(1) Exceptions from privilege and confidentiality. Subsections (a) and (b) herein shall not apply to, and shall not be construed to prohibit, one or more of the following disclosures:

(A) Disclosure of relevant patient safety work product and document log for use in a criminal proceeding, but only after a court makes an in camera determination that such patient safety work product and document log contains evidence of a criminal act and that such patient safety work product and document log is material to the proceeding and not reasonably available from any other source; or

(B) Disclosure of identifiable patient safety work product and document log if authorized by each provider or reporting entity identified in such work product.

(2) Exceptions from confidentiality - subsection (b) herein shall not apply to, and shall not be construed to prohibit one or more of the following voluntary disclosures:

(A) Disclosure of patient safety work product and document log to a reporting entity to carry out patient safety activities;

(B) Disclosure of patient safety work product and document log to grantees, contractors, or other entities carrying out research, evaluation, or demonstration projects authorized, funded, certified, or otherwise sanctioned by rule or other means by the director, for the purpose of conducting research to the extent that disclosure of protected health information would be allowed for such purpose under the Health Insurance Portability 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 Drug Administration with respect to a product or activity regulated by the Food and Drug Administration;

(D) Voluntary disclosure of patient safety work product and document log by a provider to an accrediting body that accredits that provider; or

(E) Disclosure of patient safety work product and document log to law enforcement authorities relating to the commission of a crime, or to an event reasonably believed to be a crime, if the person making the disclosure believes, reasonably under the circumstances, that the patient safety work product and document log that is disclosed is necessary for criminal law enforcement purposes.

(d) Continued protection of information after disclosure.

(1) In general. Patient safety work product and/or document log that is disclosed under subsection (c) herein shall continue to be privileged and confidential as provided for in subsections (a) and (b) herein, and such disclosure shall not be treated as a waiver of privilege or confidentiality, and the privileged and confidential nature of such work product and/or document log shall also apply to such work product and/or document log in the possession or control of a person to whom such work product and log was disclosed.

(2) Exception. Notwithstanding subsection (1) herein and subject to subsection (3) herein, if patient safety work product and/or document log is admitted into evidence in a criminal proceeding, the confidentiality protections provided for in subsection (b) herein shall no longer apply to the work product and/or log so disclosed; and

(3) Construction. Subsection (2) herein shall not be construed as terminating or limiting the privilege or confidentiality protections provided for in subsections (a) or (b) herein with respect to patient safety work product and document log other than the specific patient safety work product and document log disclosed as provided for in subsection (c) herein.

(4) Limitations on actions.

(A) Patient safety organizations.

(i) In general. A patient safety organization shall not be compelled to disclose information collected or developed under this part whether or not such information is patient safety work product and/or a document log unless such information is identified, it is not patient safety work product and/or a document log, and it is not reasonably available from another source.

(ii) Nonapplication. The limitation contained in clause (i) herein shall not apply in an action against a patient safety organization or with respect to disclosures pursuant to subsection (c)(1) herein.

(B) Providers. An accrediting body shall not take an accrediting action against a provider based on the good faith participation of the provider in the collection, development, reporting, or maintenance of patient safety work product and a document log in accordance with this part. An accrediting body may not require a provider or reporting entity to reveal its communications with any patient safety organization established in accordance with this part.

(e) Reporter protection.

(1) In general. A provider may not take any adverse employment action, as described in subsection (2) herein, against an individual based upon the fact that the individual, in good faith, reported the information:

(A) To the provider with the intention of having the information reported to a patient safety organization; or

(B) Directly to a patient safety organization.

(2) Adverse employment action. For the purposes of this 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 the individual would otherwise be eligible; or

(B) An adverse evaluation or decision made in relation to accreditation, certification, credentialing, or licensing of the individual.

(f) Enforcement.

(1) Civil monetary penalty. Subject to subsection (3) herein, a person who discloses identifiable patient safety work product and/or document log in a knowing or reckless violation of subsection (b) herein shall be 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 and Accountability Act of 1996. Penalties shall not be imposed both under this subsection and under the regulations issued pursuant to § 264(c)(1) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d-2 note) for a single act or omission.

History of Section. (P.L. 2008, ch. 157, § 1; P.L. 2008, ch. 175, § 1.)