Protecting the Process: 10 U.S.C. § 1102 and the Army’s Clinical Quality Management Program
By McDonald, Edward B | |
Proquest LLC |
I. Introduction
A judge advocate practicing in the field of health law is frequently faced with many overlapping or related legal issues arising from adverse medical events. For example, the
Adverse events like the example of
The key mechanism that permits a CQAP to properly function is 10 U.S.C. § 1102.9 For a HLJA, understanding how the
This article provides a general framework for understanding the
II. History of 10 U.S.C. § 1102
A HLJA must understand the rationale for the original 1986 version of 10 U.S.C. § 1102 because it sets forth the basic foundation for protecting the QA process. Understanding it will help the HLJA explain the legal advice that he provides to stakeholders concerning QA matters. It will also assist the HLJA in formulating arguments in defense of record non-disclosure if a question arises concerning protection of a particular record that fails to fall squarely within the enumerated protections of 10 U.S.C. § 1102 or case law. The ability to formulate such arguments may prove very important in light of recent and substantial changes contained in today's 10 U.S.C. § 1102.13
Before 1986, no statutory protection existed for the quality assurance process.14 Instead, protection was based upon federal case law and state statutes.15 The lack of concrete protections in light of the various mechanisms available for compelling disclosure of information and testimony created a substantial obstacle in determining and preventing the cause and reoccurrence of medical adverse events.16 Specifically, unrestricted access to Army Medical QA information hinders the primary goal of the medical system: the delivery of quality healthcare because people are unlikely to come forward and provide information.17
Reflecting these concerns, Senate Report No. 99-331 sets forth that the purpose for creating 10 U.S.C. § 1102 was to "encourage . . . candid peer review and quality assurance." The report notes that "[m]edical quality assurance programs are the primary mechanism [for] . . . monitor[ing] and ensur[ing . . .] quality medical care . . . ." and "[c]entral to these quality assurance review activities is the peer review process."18
In the
III. Current State of the Law and Army Regulation 40-68, the
It is likely that the extent of the protections originally afforded by 10 U.S.C. § 1102 was recently narrowed.22 As a result, the
1. The Statute
Under 10 U.S.C. § 1102(a), "[m]edical quality assurance records created by or for the
Until the most recent amendment, "medical quality assurance program" was defined as
any activity carried out . . . by or for the
On
When read together and given their common meaning, the new definitions appear to substantially narrow the scope of protection originally provided by limiting the protection to only those records that have occurred under "peer review" by a "healthcare provider."30 In contrast, the statute previously covered "any activity" and did not limit the protections to "assessment . . . carried out by health care professional."31 The changes may create new challenges and impact how the courts subsequently treat challenges to non- disclosure of records created within the current military quality assurance program.
Specifically, records believed to be protected may now be unprotected due to the unclear and likely narrowed scope of 10 U.S.C. § 1102. For example, while the protections could arguably extend only to those records assessed by a health care professional, the statute, however, does not define health care professional.32
2. Case Law Before Amendment
Going forward, the recent changes will surely have little impact on the established treatment by the courts of records that are deemed to be a product of the medical quality assurance program. Instead, the legal question will be, as it was when 10 U.S.C. § 1102 was first enacted, whether the record is now covered by the statute.35 As a result, the HLJA should understand the parameters established by the courts under the original 1986 version of 10 U.S.C. § 1102 and analyze current practices in light of the recent amendment.
Before the
Whether intended or not, uncertainty now exists concerning the scope of protection afforded by the 2012 version of 10 U.S.C. § 1102. The rationale for and the benefits of this change remain unclear.39 The possible detriments, however, are foreseeable: degraded protections, increased litigation, uncertainty, additional and needless financial expense, and "[a]s an indirect result, beneficiaries may receive less than the high quality of care they deserve."40 Lastly, amending 10 U.S.C. § 1102 also brings into question the extent to which AR 40-68 remains sound.
B.
The first reference a HLJA must understand is AR 40- 68. In most instances, a HLJA assigned to the
1. Overview of the
Army Regulation 40-68 serves as the consolidated regulation for implementing the
Credentialing and privileging can be described as concurrent processes to determine whether a provider is qualified and, if so, should he be authorized to provide medical services and to what extent.42 These processes occur before, during, and, in some instances, after someone provides medical services to beneficiaries.43 With Baby Lucy, the health care providers involved may have included, along with others, a physician, a certified nurse midwife, a physician's assistant, or a nurse anesthetist.44 Each would have undergone the credentialing and privileging process before they provided medical services to
a. Credentialling
Whether a civilian or military health care professional, credentialing begins many years before working for the
Whether privileged or non-privileged, the MTF must review qualification information "for all professional health care personnel."49 The process is generally administered by the MTF credentials manager who is responsible for "verif[ying], update[ing], and maintain[ing]" the information while the privileged provider is performing services at the MTF.50 The privileged provider's professional information is generally contained in two files called the provider credentials file (PCF) and the provider activity file (PAF).51
The PCF is the provider's permanent file and contains credentialing and performance information.52 The "PAF is a working file," maintained at the credentialing office, which captures data related to a provider's clinical practice (e.g., deaths, medical record deficiencies, inappropriate clinical drug use, complaints, etc.).53 The PAF is also used to "[p]eriodically reevaluate performance and privileges."54 Army Regulation 40-68 asserts that documents contained in the PCF and PAF are protected by 10 U.S.C. § 1102.55
Some documents obtained or created during the processes, however, may no longer receive protection as the new definition of "peer review" arguably limits the protection to "any assessment of the quality of medical care carried out by a health care professional."56 This definition appears to contemplate only retrospective assessment of a provider's clinical practice.57 As a result, it can be argued that until the information contained in a PCF is assessed by a health care professional, the information is not protected.58 Nevertheless, the information would still have limited protection under the Privacy Act by requiring a judge's order before release would occur.59
A provider's credentialing is ongoing and contains "a series of activities designed to collect relevant data that serve as the basis for decisions regarding appointment and reappointment to the medical/dental staff."60 It also serves as the basis for granting privileges and the scope of those privileges.61 The decision to appoint a health care provider to the medical staff, grant privileges, and determine the scope of those privileges rests with the MTF commander.62 The decision typically flows from a department/division chief through the credentials committee and the ECMS to the commander.63
The credentials committee is composed of a chairperson and other permanent and alternate members.64 A majority must "be fully appointed members of the medical/dental staff."65 A non-voting HLJA will likely serve as the legal advisor.66 Up to this point, although the credentialing process has been discussed separately from the privileging process, the processes generally occur simultaneously but serve different purposes. Stated simply, the credentials committee will determine whether someone possesses the requisite qualifications. If so, it will make a recommendation to the commander concerning whether someone should practice and the scope of that practice to which he will be privileged.67
b. Privileging
Privileging, at its core, is a pure QA process.68 The process is not intended to serve as "a disciplinary or personnel management mechanism."69 Nevertheless, an adverse privileging action may result from provider misconduct.70 Medical treatment facility commanders have much discretion when it comes to awarding and scoping clinical privileges.71 In contrast, a commander may not be able to immediately affect the credentials of a provider.72 There are three types of privileging actions-routine, adverse, or non-adverse.73 Approval, reappraisal, and renewal are considered routine privileging actions.74 If an issue arises regarding a provider or with the provider's performance, privileges may be "restrict[ed], reduc[ed], suspen[ded], revoke[ed], or deni[ed]."75 These actions are considered adverse to the provider, but serve a critical QA function.76 Alternatively, the provider's privileges may be placed in abeyance or summarily suspended.77 These actions are considered non-adverse, but have a similar effect with limited duration.78
The flow of the privileging action depends upon the type and category of the action.79 The process, no matter how it originates, involves substantial documentation and input from the respective provider and the provider's department/service chief.80 Routine actions will typically move from the respective provider or department/service chief through the credentials committee and ECMS to the MTF commander for approval.81 With adverse privileging actions, however, additional procedures are mandated.82
This additional process is provided through "investigation, professional peer review, hearing, and appeal."83 In many instances, there will be concurrent non- health care-related administrative or legal actions.84 A HLJA serves an important function in adverse privileging actions and any related non-health care legal matters that may arise.85 Specifically, the HLJA helps to ensure that "due process and legal rights are [properly] afforded" and ensures that information protected by 10 U.S.C. § 1102 is not included in any collateral matter.86
In adverse privileging actions, a highly competent disinterested third party should conduct an investigation.87 The investigator investigates the facts and circumstances and makes a report to the credentials committee.88 The credentials committee reviews and considers the investigation. The chairperson of the credentials committee recommends to the MTF commander that either "no further action be taken" or the "summary suspen[sion of privileges] pending a formal peer review."89 If a peer review panel is required, it will "evaluate the available information and to determine if the [standard of care] was met" and "evaluate the provider's performance, conduct, or condition to determine the extent of the problem(s)."90 The subject provider's participation and rights are limited during this stage of the adverse privileging process.91
The peer review panel may include one of the following recommendations concerning the subject provider's privileges-reinstatement, suspension, restriction, reduction, or denial.92 The peer review panel's recommendations and associated information is returned to the credentials committee.93 The credentials committee will likely review the matter, include recommendation(s), and forward the matter to the MTF commander for a decision on the matter.94 If the MTF commander "intends to deny, suspend, restrict, reduce, or revoke the provider's privileges" then the commander must notify the subject provider and provide information concerning "hearing and appeal rights."95
The hearing is an administrative process that provides substantial due process rights.96 Additionally, specific time requirements are mandated.97 The hearing board determines findings and recommendations.98 The findings and recommendations are likely detailed and each finding "must be supported by a preponderance of the evidence."99 The entire record is submitted through the ECMS to the MTF commander.100 The matter is reviewed for legal sufficiency before the MTF commander makes a decision.101 Ideally, a HLJA who did not advise the peer review panel will conduct the review.102 Once a decision is made, it is communicated, along with notice of appeal rights, to the subject provider, a copy is placed in the PCF, and "the appropriate department, service, or clinic chiefs" are informed.103 The subject provider may elect to appeal the decision.104
The appeal process has strict time requirements and should be rigidly followed.105 The appeal process constitutes two appeals.106 The first appeal is to the MTF commander that rendered the decision.107 If denied, the matter is forwarded through the Regional Medical Commander to the
Many options, such as increased supervision, additional or re-training, mentoring, counseling, substance abuse intervention, etc., exist to address issues that affect the ability of a provider to render proper and safe medical care.111 Terminating the provider's ability to practice will likely be the final option. Ultimately, the option selected will likely reflect that which is necessary to ensure quality and safe health care.112
2. The Risk Management Process
Another QA mechanism is the risk management (RMGT) process.113 This process can lead to an adverse privileging action.114 It may also lead to changes in a particular clinical or administrative practice, modification or termination of a specific clinical procedure, increased training or retraining of personnel involved in providing health care, or anything else related to the delivery of care.115 In short, the RMGT process is one of the most important aspects of quality assurance because it seeks to "prevent the loss of human, material, or financial resources and to limit the negative consequences of adverse or unanticipated events that occur in a healthcare setting."116
The goals of RMGT are achieved through an overall systematic plan that incorporates identification of possible clinical issues and practices, multi-disciplinary review and evaluation, data gathering, analysis, and reporting, along with risk reduction and mitigation training.117
Identification of possible clinical issues occurs at all levels of healthcare practice.118 In some instances, the incident itself indicates that a clinical issue may exist.119 In Baby Lucy, the unanticipated injury post-delivery indicates that an issue exists.120 Another example would be the sudden and unforeseen death of a patient. The event, however, does not have to be catastrophic in nature (e.g., the chipping of a patient's teeth during intubation, a patient falling off an exam table during a procedure, or a mild, unanticipated adverse reaction to medicine).121 Identification of a clinical risk also occurs as a result of the medical claims process.122 The identification occurs when an individual who believes he or she has been harmed files a claim with the servicing claims office.123 Notice of the claim should be quickly reported to the
Evaluation of the clinical risk begins with the
Once the peer review is complete, it is delivered to the RM for the RMC.132 The RM tracks, prioritizes, and schedules RMC meetings for all PCEs.133 The RMC is an impartial multidisciplinary group that includes a "represent[ative] from each clinical department/service, the RM, the HLJA, and other designated (ad hoc) participants, as needed."134 The RMC "review[s] the facts of the case, consider[s] [the] peer review findings and recommendations," and makes the same determinations as those required for the peer review.135 Additionally, those significantly involved may provide in-person information to the RMC.136 Each member of the committee, except for the RM, HLJA, and the chairperson (who only votes when there is a tie), casts a vote for each determination.137 Although applicable medical records and notice of the peer review is provided to those significantly involved, due process is considered inapplicable to the process.138
Once the RM committee makes its determinations and recommendations, the information is delivered through QA channels to the MTF commander for consideration.139 Additionally, where a provider does not meet SOC, the review is also delivered to the credentials committee for adverse privileging action.140 All of the information concerning a PCE is captured and maintained in an electronic system called "Centralized Credentials and Quality Assurance System (CCQAS)."141 Trends are reported to the ECMS and MEDCOM QM.142 If necessary, the information will be used to take action to prevent or mitigate future harm.143 The RM process and the information gathered likely remains protected with the changes to 10 U.S.C. § 1102.
In the
C.
Concurrent with the RMGT process and any resulting adverse privileging action, HLJAs must not lose sight of their additional roles and responsibilities that will likely arise with an adverse medical event. The eventual medical claim must be documented, reported, investigated, accurately maintained, and submitted to the
Any USARCS Claims Attorney (CA) and Claims Investigator assigned will need support in adjudicating the claim.145 This support is not limited to providing advice, context, command and stakeholder desires and concerns, medical records, witness statements, and ensuring that no QA information or documentation is included in the material provided.146 It also includes any aspect of local support that enables the CA to efficiently and effectively perform his job (e.g., work space at the medical facility, computer automation support, network access, coordination for local witness interviews, security badges, escorting around the facility, introductions to stakeholders, etc.).147
If the claim enters into litigation, the HLJA will also provide similar support activities as those noted for the CA to the assigned Litigation Judge Advocate and Assistant United States Attorney.148 Additionally, assistance with coordination for the appearance of witnesses from the MTF at depositions, hearings, or trials may be necessary.149
Further, the HLJA will be responsible for providing legal advice and oversight concerning any criminal prosecution or administrative action, to include separation, which may result from an adverse medical event.150 Lastly, requests for information and records from media and others will likely arise with an adverse medical event. Information released in response to requests requires careful review and analysis because it may include QA information, impact any claim or tort case that arises, and violate the Privacy Act or Health Insurance Portability and Accountability Act.151
IV. Conclusion
When 10 U.S.C. § 1102 was enacted, it mitigated these human imperfections by allowing frank and thorough assessment of the entire health care process. In turn, information collected could be used to improve the medical system.154 Unfortunately, the amendment likely narrows the protection afforded.
Additionally, the
1 U.S. DEP'T OF ARMY, REG. 40-68, CLINICAL QUALITY MANAGAGEMENT (
2 Rob Perez, Hospital Cases End Tragically,
3 Id.
4 See infra note 12 (providing a description of the responsibilities of the RMC).
5 See generally Perez, supra note 2.
6 See generally U.S. DEP'T OF ARMY, REG. 27-20, CLAIMS para. 2-2 (
7 See Perez, supra note 2; see also Professional Experiences, supra note 6. Beneficiary is defined as "[a]nyone eligible to receive health promotion, illness prevention, inpatient and outpatient health care and services within the military health system." AR 40-68, supra note 1, glossary, at 156.
8 See S. REP. NO. 99-331, at 245-46 (1986); see also AR 40-68, supra note 1.
9 S. REP. NO. 99-331, at 245-46; see also 10 U.S.C.A. § 1102 (West 1986) (this is the original version that this article compares to a recent amendment).
10 S. REP. NO. 99-331, at 245-46; Professional Experiences, supra note 6. The term military treatment facility (MTF) will collectively refer to military medical center, hospital, and clinic. AR 40-68, supra note 1, glossary, at 164.
11 AR 40-68, supra note 1, para. 1-1. See generally 10 U.S.C.A. § 1102 This is the most current version that will be contrasted against the version cited in note 9.
12 See generally AR 40-68, supra note 1. The risk management committee is responsible for "provid[ing] impartial oversight and review of all PCEs and medical malpractice/disability claims management activities." Id. para. 13-3a, a(1).
13 10 U.S.C.A. § 1102 (West 2012); see also id. § 1102 (West 1986).
14 Major
16 See id.; see also S. REP. NO. 99-331, at 245--46 (1986). For example, absent protection, the following is a nonexclusive list of provisions that could possibly be used to obtain quality assurance information: (1) Requests for information under 5 U.S.C.A. § 552 (West 2009) (Freedom of Information Act (FOIA)), 5 U.S.C.A. § 552a (West 2010) (Privacy Act). (2) Applicable provisions of the FED. R. OF CIV. P. 26 (Duty to Disclose; General Provisions Governing Discovery), 30 (Depositions by Oral Examination), 31 (Depositions by Written Questions), 34 (Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes), and 45 (Subpoena). (3) Applicable provisions of the FED. R. OF CRIM. P. 16 (Discovery and Inspection) and 17 (Subpoena). Professional Experiences, supra note 6.
17 S. REP. NO. 99-331, at 245--46; see also Woodruff, supra note 14, at 5.
18 S. REP. NO. 99-331, at 245.
19 See AR 40-68, supra note 1, ch. 13; S. REP. NO. 99-331, at 245; see generally Woodruff, supra note 14.
20 See S. REP. NO. 99-331, at 245--46; see also Woodruff, supra note 14.
21 See 10 U.S.C.A. § 1102 (West 1986); see generally Woodruff, supra note 14.
22 See 10 U.S.C.A. § 1102 (West 1986); see also id. § 1102 (West 2012).
23 See generally AR 40-68, supra note 1; see generally U.S. DEP'T OF DEF., INSTR. 6025.13, MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN THE MILITARY HEALTH SYSTEM (MHS) (
24 10 U.S.C.A. § 1102(a) (West 2012) (emphasis added).
25 Id. § 1102(b). For exceptions to disclosure and testimony concerning quality assurance records see id. § 1102(c).
26 Id. § 1102(f); id. § 1102(g).
27 Id. § 1102(j)(1) (West 1986) (emphasis added).
28 Id. § 1102(j)(1) (West 2012) (emphasis added).
29 Id. § 1102(j)(4) (emphasis added).
30 Id. § 1102(j)(1), (4). Health care provider is defined as "any military or civilian health care professional who, under regulations of a military department, is granted clinical practice privileges to provide health care services in a military medical or dental treatment facility or who is licensed or certified to perform health care services by a governmental board or agency." Id. § 1102(j)(3).
31 See id. § 1102(j)(1) (West 1986). Id. § 1102(j)(4) (West 2012).
32 Id. § 1102(j)(4) (West 2012); see also id. § 1102(j).
33 Id. § 1102(j)(4).
34 Neither AR 40-68, supra note 1, nor the Rosalind Gagliano information papers reflect the definitional changes contained in 10 U.S.C.A. § 1102 (West 2012).
35 See Woodruff, supra note 14, at 7.
36 See In re
37 Cole v. McNaughton, 742 F. Supp. 587 (
38 See E.E.O.C. v. Med-Nat'l., Inc., 186 F.R.D. 609 (
39 No congressional reasoning for the changes could be found using various legislative databases to include THOMAS, U.S.C.C.A.N., LexisNexis, ProQuest Congressional, and ProQuest Legislative Insight.
40 See S. REP. NO. 99-331, at 245 (1986); see also Professional Experiences, supra note 6.
41 AR 40-68, supra note 1, summary.
42 Credentialing is defined as "[t]he process of obtaining, assessing, and verifying the qualifications of a health care provider to render beneficiary care/service in or for a health care organization." Id. glossary, at 159. Further, privileging is defined as "[t]he process whereby the privileging authority, upon recommendation from the credentials committee, grants to individuals the authority and responsibility for making independent decisions to diagnosis, initiate, alter, or terminate a regimen of medical or dental care." Id. glossary, at 167. Appendix A (Non-Adverse Standard Credentialing and Privileging Flow Chart) contains a flow chart of the standard credentialing and privileging process.
43 See generally AR 40-68, supra note 1.
44 "Health care practitioners who function independently to initiate, alter, or terminate a regimen of medical care must be privileged." Id. para. 9-2a.
45 Id. paras. 8-3a and 9-2a.
46 See generally id. ch. 7 (outlining the specific requirements for each type of privileged provider).
47 Id. paras. 8-1, 8-2, 8-6, and app, F. Additionally, the "professional credentials substantiate relevant education, training, and experience; current competence and judgment; and the ability to carry out the duties and responsibilities of the assigned position or, for the privileged provider, to perform the privileges requested." Id. para. 8-1.
48 Id. para. 8-2, 8-6. Primary source verification is defined as "the process utilized to authenticate the accuracy of a specific credential or qualification as reported by an individual health care provider or professional. The primary source is the institution, agency, or body that is the original source of the credential or qualification." Id. glossary, at 167.
49 Id. para. 8-3a, b. The remainder of this article will focus entirely upon privileged providers.
50 Id. para. 8-3b(2).
51 Id. para. 8-3. The provider activity file is considered an "extension of the PCF." Id. glossary, at 168.
52 Id. para. 8-3.
53 Id. para. 8-3 and glossary, at 168. The definition of providers' credentials file contains a non-exclusive list of information to be captured by the provider activity file. Id. sec. II. The Provider Activity File (PAF) specific content requirements are located in appendix E. Id. app. E.
54 Id. para. 8-3.
55 Id. para. 8-3(2)(c).
56 10. U.S.C.A. § 1102(j)(4) (West 2012) (emphasis added).
57 Id.
58 Id. § 1102(j)(3), (4).
59 See AR 27-40, supra note 6, para. 7-7b; see also U.S. DEP'T OF ARMY, REG. 340-21, THE ARMY PRIVACY PROGRAM para. 3-1k (
60 AR 40-68, supra note 1, para. 8-4a.
61 Id.
62 Id. paras. 8-4b, 8-5a(3). A commander of a MTF can be a non-healthcare provider. The changes to 10 U.S.C. § 1102 make it possible, although unlikely, that a situation could arise where a non-health care provider makes a decision concerning privileging that may not constitute a "peer review." An example is where a commander who is a non-health care provider is notified by law enforcement concerning an issue that calls into question a provider's ability to perform medical services. As a result, the commander decides to immediately restrict the provider's privileges. Id. para. 10-2. The recording of this decision would likely be placed into the provider activity file. Id. para. 8-3b(2)(c). Arguably, this decision would not fall within the new scope of 10 U.S.C. § 1102 because it was not assessed by a health care provider. See 10 U.S.C.A. § 1102(j)(4) (West 2012); see also Professional Experiences, supra note 6.
63 AR 40-68, supra note 1, paras. 8-4 to 8-5. The Executive of the Medical Staff is defined as "[a] group, comprised of physicians and other members in leadership positions within the organization, that is responsible for activities related to self-governance of the medical staff and [professional impairment] of the professional services provided by individuals with clinical privileges . . . ." Id. glossary, at 160.
64 Id. para. 8-5b.
65 Id. para. 8-5b(2). Appointment to the medical staff is a separate but concurrent process to credentialing and privileging. Id. para. 9-5. Appointment to the medical staff generally "reflects the provider's relationship with the medical/dental staff and the degree to which the provider participates in medical/dental staff surveillance and review as well as quality improvement activities related to the governance of the medical/dental staff." Id. As a practice tip, think of appointed members of the medical staff as fully qualified providers that generally work full time at the MTF and who can admit a patient for inpatient services. Professional Experiences, supra note 6.
66 AR 40-68, supra note 1, para. 8-5b(4). Health Law Judge Advocates are usually present only when an adverse credentialing action is conducted. Professional Experiences, supra note 6. According to AR 27-20, supra note 6, para. 2-3e, the HLJA performing as the claims attorney should not advise on credentialing actions involving the claim due to a potential for conflict of interest. As a practical matter, the availability of personnel and resources may prohibit this prudent measure. Professional Experiences, supra note 6.
67 See AR 40-68, supra note 1, ch. 9 and para. 9-4b(3).
68 Id. para. 9-1a. There are three types of privileges-regular, temporary, and supervised. Id. para. 9-3.
69 Id. para. 9-1a.
70 Id. para. 10-4b.
71 See generally id. chs. 9, 10.
72 See id. para. 14. The credentials (a license, certification, etc.) of a provider may be affected by submitting information concerning a finalized adverse event or activity to a state regulatory agency, one of the national agencies, or clearinghouses. Id.
73 See id. para. 9-1b.
74 Id.
75 Id. para. 9-1b and ch. 10.
76 Id. para. 9-1a, b.
77 Id. paras. 9-1b, 10-6a, b.
78 Id. para. 10-6a, b.
79 See generally id. chs. 9, 10.
80 Id.
81 See id. para. 9-4.
82 Id. para. 10-1. A detailed examination of the adverse clinical privileging process is beyond the scope of this article. Those seeking additional information should consult, Lieutenant Colonel
83 AR 40-68, supra note 1, para. 10-1.
84 See id. paras. 10-3, 10-4. Some of the types of other legal actions that may occur include: officer separation proceedings; command-directed mental health examinations; involuntary mental health referral and commitment proceedings; actions taken in accordance with the Uniform Code of Military Justice; federal lawsuits (due process proceedings); concurrent criminal and administrative investigations of all types; and Equal Opportunity complaints, etc. Professional Experiences, supra note 6.
85 Professional Experiences, supra note 6.
86 See AR 40-68, supra note 1, para. 10-3a; Professional Experiences, supra note 6. Defects in due process will delay the adverse privileging process and lead to due process challenges in the federal courts. There are legal firms and attorneys experienced in challenging military privileging actions. A due process violation can be a sound basis for challenge. Id.
87 AR 40-68, supra note 1, para. 10-6d (directing use of Clinical Quality Management Quality Assurance Investigation); Professional Experiences, supra note 6.
88 AR 40-68, supra note 1, para. 10-6d, e(1).
89 Id. para. 10-6e.
90 Id. para. 10-6e(c), f(1).
91 Id. para. 10-6f(1)(c), (d).
92 Id. para.10-6f(5).
93 Id. para.10-6f(6).
94 Id. para. 10-6f(6), (7).
95 Id. para. 10-6f(7)(c).
96 Id. paras. 10-7-10-8.
97 Id. The stated time limitations, prohibition of attorney participation, and the overall hearing process may be used as a basis for challenging the proceeding in federal court. The HLJA should research and determine whether the MTF is strictly adhering to the published rules and, if not, assist in correcting deficiencies. Professional Experiences, supra note 6.
98 AR 40-68, supra note 1, para. 10-8f.
99 Id.
100 Id. para. 10-9a.
101 Id. para. 10-9b.
102 Professional Experiences, supra note 6.
103 Id. para. 10-9c(2)-10-9c(3).
104 Id. para. 10-10a.
105 See id. para. 10-10. Practice Tip: Any deviation from mandated rules or procedures may be used as a basis for making a due process challenge in federal court even if the deviation was made to accommodate the subject bringing the claim. Professional Experiences, supra note 6.
106 AR 40-68, supra note 1, para. 10-10a to 10-10d.
107 Id. para. 10-10 to 10-10b.
108 Id. para. 10-10c, 10-10d to 10-10f.
109 Id. para. 10-10d to 10-10f.
110 Id. para.10-10f to 10-10g.
111 See id. chs. 9, 10.
112 Id. para. 9-1a.
113 See id. para. 13-1. Appendix B (Standard Risk Management Flow Chart with Collateral Matters) is a flow chart of the risk management process.
114 Id. para. 13-3c(2).
115 See id. para. 13-4.
116 Id. para.13-1.
117 See id. ch. 13 and para. 13-2.
118 See generally id. chs. 12, 13.
119 See id. para. 13-4.
120 Id.; see also Perez, supra note 2.
121 AR 40-68, supra note 1, para. 13-5b(8).
122 Id. para. 13-6a; see also AR 27-20, supra note 6, para. 2-9e to 2-9f;
123 The servicing medical claims office will usually be a function of the MTF Command JA (CJA) or at the servicing
124 Professional Experiences, supra note 6.
125 AR 40-68, supra note 1, paras. 13-1, 13-4.
126 Id. para. 13-2c(1), 13-2d(1).
127 Id. para. 13-2c(1).
128 Id. para. 13-4.
129 Id. para. 13-5a to 13-5b. Generally, only extremely competent and experienced peers are selected for this review. Professional Experiences, supra note 6.
130 AR 40-68, supra note 1, para. 13-5a, 13-5b(5), 13-5(6)(a). Standard of care is defined as "health care diagnostic or treatment judgments and actions of a provider/professional generally accepted in the health care discipline or specialty involved as reasonable, prudent, and appropriate." Id. glossary, at 170.
131 Id. para. 13-5b(5).
132 See id. paras. 13-2, 13-3b.
133 Id. paras. 13-2c(3), 13-4, 13-4b.
134 Id. para. 13-3a, 13-3a(1).
135 Id. para. 13-3b.
136 Id. para. 13-5b(3).
137 Id. para. 13-3a(1) to 13-3a(3).
138 Id. para. 13-5b(3), 13-5(3)(d).
139 Id. para. 13-3c(1).
140 Id. para. 13-3c(2).
141 Id. paras. 1-4j(7)(k), 13-4d.
142 Id. paras. 13-2c(6), 13-2e.
143 Id. para. 13-4.
144 Professional Experiences, supra note 6; see AR 27-20, supra note 6, paras. 2-2, 2-3, 2-9 to 2-12, 2-22; see also
145 See generally Professional Experiences, supra note 6; AR 27-20, supra note 6, paras. 2-1, 2-3c, 2-22a.
146 Professional Experiences, supra note 6; see generally
147 Professional Experiences, supra note 6.
148 Id.
149 Id.; see generally AR 27-40, supra note 6, paras. 7-1 to 7-7, 7-12 to 7- 13, 7-15; see also
150 Professional Experiences, supra note 6; see AR 40-68, supra note 1, paras. 2(d)(b), 10-3a, 10-4, 10-12 to 10-13, 11-2 to 11-5, 12-4c(3), (4), app.
151 See DA PAM. 27-162, supra note 6, paras. 1-18, 2-7h, 2-34i; see also AR 27-40, supra note 6, paras. 7-7, 7-14; 42 U.S.C. §§ 1320d-6 (2010).
152 See S. REP. NO. 99-331, at 245--46 (1986).
153 See id.
154 AR 40-68, supra note 1, para. 13-4.
Major
(
Copyright: | (c) 2013 Superintendent of Documents |
Wordcount: | 7909 |
Hospitals take privacy seriously
Advisor News
Annuity News
Health/Employee Benefits News
Life Insurance News