1. W W W. D I N S L A W. C O M November 6, 2008 Reporting Requirements to Government Agencies Stacey A. Borowicz, Esq. Dinsmore & Shohl LLP 191 W. Nationwide Blvd. Suite 300 Columbus, OH 43215 (614) 227-4212 stacey.borowicz@dinslaw.com

2. © 2008 Dinsmore & Shohl LLP Reporting Requirements to Government Agencies Presentation Outline: n Reporting Obligations Arising From Peer Review, Quality Assurance, and Utilization Committees n The National Practitioner Databank n The Basics of Reporting Professional Misconduct n Responding to Government Subpoenas n Miscellaneous Reporting Obligations

3. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations n Peer Review Materials Are Generally Treated as Confidential (O.R.C. 2305.252) n WHY: to encourage the free flow of information ( Browning v. Burt (1993), 66 Ohio St.3d 544, 613 N.E.2d 993)

4. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations The Definition of a Peer Review Committee: “... a utilization review committee, quality assessment committee, performance improvement committee, tissue committee, credentialing committee, or other committee that does either of the following.” O.R.C. 2305.25.

5. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations What is Protected from Discovery or Introduction as Evidence? n Peer review proceedings and records n Testimony from any individual that attends a meeting, serves as a member, works for, provides information to a peer review committee n See O.R.C. 2305.252 and Gates v. Brewer (1981), 2 Ohio App.3d 347, 442 N.E.2d 72.

6. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations Caution: Some Exceptions Exist That Allow Discovery and Introduction as Evidence (O.R.C. 2305.252) n Original sources n Personal knowledge

7. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations Special Issue: Incident / Risk Management Reports n What are they? n Is there an Incident Report statute? n How do we use them?

8. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations Keys to the Proper and Safe Use of Incident Reports: n The Incident Report Must Have Been Prepared for Use by the Peer Review Committee. n Merely labeling something an “Incident Report” is not enough. n See Manley v. Heather Hill, Inc. (2007), 175 Ohio App.3d 155, 885 N.E.2d 971, 2007-Ohio- 6944.

9. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations Question: What particular kind of information belongs in incident reports? Answer: All the subjective stuff that should never make it into a medical record. Medical Record:Incident Report n history, n assessment, n diagnosis, n prognosis, n things actually seen or actually heard, n etc. n things believed, but not seen or heard, n impressions, n the real story, so to speak, n philosophical take, n I-told-you-so comments and suggestions, n etc.

10. © 2008 Dinsmore & Shohl LLP Peer Review & Reporting Obligations Practical Advice: 1. Develop and Maintain Peer Review Committee Formalities 2. Use Incident Reports That Are Created 3. Investigate Related Matters 4. Develop Policies and Educate Staff on What Should Be Included in Incident Reports

11. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank What Gets Reported : (42 C.F.R. 60.6-60.9) n Malpractice Payments n Licensure Actions n Adverse Actions n Reporting Errors, Omissions, and Revisions When It Gets Reported: (42 C.F.R. 60.5) n The above items must be reported within 30 days.

12. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank Reporting Medical Malpractice Payments: (42 C.F.R. 60.7) Who Gets Reported: physicians, dentists, other health care practitioners (those licensed by a state providing health care services) Who Reports: the entities and insurance companies that make payments for the benefit of the practitioner in satisfaction of a settlement or judgment To Whom is Information Reported: the appropriate state licensing board and to the NPDB

13. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank Reporting Medical Malpractice Payments: (42 C.F.R. 60.7) What is Reported: (1) the practitioner’s information (2) the reporting entity’s information (3) claim, conduct, settlement or judgment information

14. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank Reporting Licensure Actions: (42 C.F.R. 60.8) Who Gets Reported: physicians and dentists Who Reports: relevant Board of Medical Examiners To Whom is Information Reported: NPDB What Gets Reported: revocation, suspension, or surrender of the license, as well as censures, reprimands, or probation Other Reported Information: practitioner information

15. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank Reporting Adverse Actions on Clinical Privileges: (42 C.F.R. 60.9) Who Gets Reported: physicians and dentists (must report); other health care practitioners (may report) Who Reports: entities that take adverse actions First Level of Reporting: the entity to the Board of Medical Examiners What Gets Reported: actions affecting privileges for longer than 30 days, accepted surrender or restriction of privileges during investigation

16. © 2008 Dinsmore & Shohl LLP The National Practitioner Data Bank Reporting Adverse Actions on Clinical Privileges: (42 C.F.R. 60.9) Other Reported Information: practitioner information Second Level of Reporting: the Board of Medical Examiners to NPDB What Gets Reported: the information reported to the board by the health care entities, and any known instances of a health care entity’s failure to report information for adverse actions taken with respect to clinical privileges

17. © 2008 Dinsmore & Shohl LLP Professional Misconduct State Medical Board: (OAC 4731-15-02) Who Reports: the chief administrative or executive officer Individual Subject to Reporting: physician assistants, physicians, limited practitioners, anesthesiologists, acupuncturists To Whom is Information Reported: the State Medical Board of Ohio What Gets Reported: any “formal disciplinary action”

18. © 2008 Dinsmore & Shohl LLP Professional Misconduct Board of Nursing: (O.R.C. 4823.34) Who Reports: employers Individual Subject to Reporting: nurses, LPNs, dialysis technicians, certified community health workers, medication aids To Whom is Information Reported: State Board of Nursing What Gets Reported: professional misconduct under Nurse Practice Act

19. © 2008 Dinsmore & Shohl LLP Responding to Subpoenas Definition: Subpoenas are a legal command, not a court order, that request testimony or the production of documents Types of Subpoenas: subpoena ad testificandum : requires attendance of witness at a hearing, deposition, or trial subpoena duces tecum : requires the production or copying of documents Issuers: attorneys, arbitrators, government boards / commissions, judges, grand juries

20. © 2008 Dinsmore & Shohl LLP Responding to Subpoenas Procedure for Handling a Subpoena: n Don’t Panic n Read the Subpoena n Contact Your Attorney

21. © 2008 Dinsmore & Shohl LLP Miscellaneous Reporting Requirements Ohio Department of Health: Birth Defects: R.C. 3705.30-31 Cancer: R.C. 3701.261-262 HIV/AIDS: R.C. 3701.24 Protective Reporting: Child Abuse: R.C. 2151.421

22. W W W. D I N S L A W. C O M Stacey A. Borowicz, Esq. Dinsmore & Shohl LLP 191 W. Nationwide Blvd. Suite 200 Columbus, Ohio 43215 stacey.borowicz@dinslaw.com