First Regular Session

Sixty-first General Assembly

LLS NO. 97­0546.01 JAP SENATE BILL 97­157

STATE OF COLORADO

BY SENATOR Perlmutter;

also REPRESENTATIVE Snyder.

HEALTH, ENVIRONMENT,

WELFARE & INSTITUTIONS

A BILL FOR AN ACT

CONCERNING REPORTING OF INCIDENTS THAT OCCUR IN HEALTH CARE FACILITIES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Authorizes the department of public health and environment to require health care facilities to submit to the department reports of incidents that affect the health, safety, or welfare of residents or patients. Requires incident reports to be confidential; except that the department may release information included in incident reports under certain circumstances. Identifies summary reports as one circumstance under which incident reporting information may be released, and specifies the contents of a summary report. Exempts information concerning AIDS from the incident reporting provisions.

Makes conforming amendments with regard to information collected through the quality management program.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  25­1­107 (1) (l) (I), Colorado Revised Statutes, 1989 Repl. Vol., as amended, is amended to read:

25­1­107.  Powers and duties of the department ­ repeal. (1)  The department has, in addition to all other powers and duties imposed upon it by law, the following powers and duties:

(l) (I)  To annually license and to establish and enforce standards for the operation of general hospitals, hospital units as defined in section 25­3­101 (2), psychiatric hospitals, community clinics, rehabilitation centers, convalescent centers, community mental health centers, facilities for persons with developmental disabilities, habilitation centers for brain­damaged children, chiropractic centers and hospitals, maternity hospitals, nursing care facilities, residential care facilities, the pilot project rehabilitative nursing facility, hospice care, personal care boarding homes, dialysis treatment clinics, ambulatory surgical centers, birthing centers, and other facilities of a like nature, except those wholly owned and operated by any governmental unit or agency. In establishing and enforcing such standards and in addition to the required announced inspections, the department shall, within available appropriations, make additional inspections without prior notice to the facility. Such inspections shall be made only during the hours of 7 a.m. to 7 p.m. IN ADDITION TO INSPECTIONS, IN ENFORCING LICENSING STANDARDS, THE DEPARTMENT MAY REQUIRE EACH LICENSED FACILITY TO REPORT TO THE DEPARTMENT THE OCCURRENCE OF ANY INCIDENT THAT AFFECTS THE HEALTH, SAFETY, OR WELFARE OF RESIDENTS OR PATIENTS AT THE FACILITY IN ACCORDANCE WITH SECTION 25­3­104. The issuance, suspension, renewal, revocation, annulment, or modification of licenses shall be governed by the provisions of section 24­4­104, C.R.S., and section 25­3­102, and all licenses shall bear the date of issue and cover a twelve­month period. Nothing contained in this paragraph (l) shall be construed to prevent the department from adopting and enforcing, with respect to projects for which federal assistance has been obtained or shall be requested, such higher standards as may be required by applicable federal laws or regulations of federal agencies responsible for the administration of such federal laws.

SECTION 2.  25­3­104, Colorado Revised Statutes, 1989 Repl. Vol., as amended, is amended to read:

25­3­104.  Quarterly reports ­ incident reports. (1)  Any person, partnership, association, or corporation maintaining any hospital or other facility for the treatment or care of the sick or injured shall make a report to the department of public health and environment upon request but not more frequently than quarterly. The department of public health and environment shall have power to investigate and shall have free access to such facilities consistent with section 25­1­107 (1) (l).

(2) (a)  WITH RESPECT TO ENFORCING LICENSING STANDARDS, THE STATE BOARD OF HEALTH HAS THE AUTHORITY TO REQUIRE REPORTING, WITHOUT PATIENT CONSENT, OF THE OCCURRENCE OF ANY INCIDENT THAT AFFECTS THE HEALTH, SAFETY, OR WELFARE OF A PATIENT OR RESIDENT IN A FACILITY LICENSED PURSUANT TO THIS PART 1. THE RULES OF THE STATE BOARD OF HEALTH CONCERNING SUCH INCIDENT REPORTS SHALL SPECIFY THE CONTENTS OF INCIDENT REPORTS AND THE MANNER, TIME PERIOD, AND FORM IN WHICH INCIDENT REPORTS ARE TO BE MADE.

(b)  THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT SHALL INVESTIGATE ANY INCIDENT REPORT RECEIVED PURSUANT TO THIS SUBSECTION (2) UPON DETERMINING THAT AN INVESTIGATION IS NECESSARY FOR PROTECTION OF THE PUBLIC HEALTH AND SAFETY. WHEN INVESTIGATING AN INCIDENT REPORT, AUTHORIZED PERSONNEL OF THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT MAY, WITHOUT PATIENT CONSENT, INSPECT, HAVE ACCESS TO, AND OBTAIN INFORMATION FROM PERTINENT PATIENT MEDICAL, CORONER, AND LABORATORY RECORDS IN THE CUSTODY OF THE FACILITY AT WHICH THE INCIDENT OCCURRED OR IN THE CUSTODY OF ANY MEDICAL PRACTITIONER OR OTHER FACILITY INVOLVED IN THE INCIDENT, WHICH RECORDS ARE RELEVANT AND NECESSARY TO THE INVESTIGATION. REVIEW AND INSPECTION OF RECORDS SHALL BE CONDUCTED AT REASONABLE TIMES AND WITH SUCH NOTICE AS IS REASONABLE UNDER THE CIRCUMSTANCES. UNDER NO CIRCUMSTANCES MAY PERSONNEL OF THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT HAVE ACCESS PURSUANT TO THIS SUBSECTION (2) TO ANY MEDICAL RECORD THAT IS NOT PERTINENT, RELEVANT, OR NECESSARY TO THE PUBLIC HEALTH INVESTIGATION.

(c)  ANY REPORT OR DISCLOSURE OF RECORDS MADE IN GOOD FAITH PURSUANT TO THIS SUBSECTION (2) SHALL NOT CONSTITUTE LIBEL OR SLANDER OR A VIOLATION OF ANY RIGHT OF PRIVACY OR PRIVILEGED COMMUNICATION.

(d)  INCIDENT REPORTS AND RECORDS RESULTING FROM THE INVESTIGATION OF INCIDENT REPORTS HELD BY THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT SHALL BE STRICTLY CONFIDENTIAL. SUCH REPORTS AND RECORDS SHALL NOT BE RELEASED, SHARED WITH ANY AGENCY OR INSTITUTION, OR MADE PUBLIC, WHETHER UPON SUBPOENA, SEARCH WARRANT, DISCOVERY PROCEEDINGS, OR OTHERWISE, EXCEPT UNDER ANY OF THE FOLLOWING CIRCUMSTANCES:

(I)  THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT MAY PUBLICLY RELEASE QUARTERLY SUMMARY REPORTS OF THE INCIDENTS REPORTED BY EACH FACILITY. SUMMARY REPORTS SHALL INCLUDE ONLY AGGREGATE, NONIDENTIFYING INFORMATION CONCERNING THE TYPES OF INCIDENTS OCCURRING, THE NUMBER OF OCCURRENCES OF EACH TYPE OF INCIDENT, THE ACTIONS TAKEN BY THE FACILITY IN RESPONSE TO THE OCCURRENCE OF INCIDENTS, THE NUMBER AND TYPE OF INCIDENTS INVESTIGATED BY THE DEPARTMENT, IF ANY, AND THE ACTIONS TAKEN BY THE DEPARTMENT FOLLOWING INVESTIGATION OF INCIDENTS OR A DETERMINATION THAT NO INVESTIGATION IS NECESSARY.

(II)  THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT MAY RELEASE A SUMMARY OF AN INVESTIGATION OF A SPECIFIC INCIDENT REPORT IF THE DEPARTMENT DETERMINES THAT SUCH RELEASE IS NECESSARY FOR THE CONTROL, INVESTIGATION, AND PREVENTION OF CONDITIONS THAT ARE DANGEROUS TO THE PUBLIC HEALTH; EXCEPT THAT EVERY EFFORT SHALL BE MADE TO LIMIT DISCLOSURE OF PERSONAL IDENTIFYING INFORMATION TO THE MINIMAL AMOUNT NECESSARY TO ACCOMPLISH THE PUBLIC HEALTH PURPOSE;

(III)  THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT MAY RELEASE A COPY OF AN INCIDENT REPORT TO THE PATIENT OR RESIDENT WHO IS THE SUBJECT OF THE INCIDENT REPORT WITH WRITTEN AUTHORIZATION FROM SUCH PERSON.

(e)  THE AUTHORITY TO REQUIRE INCIDENT REPORTS PURSUANT TO THIS SUBSECTION (2) IS IN ADDITION TO THE AUTHORITY GRANTED TO THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT IN SECTION 25­1­122 TO REQUIRE REPORTS OF CERTAIN DISEASES AND CONDITIONS.

(f)  NOTHING IN THIS SUBSECTION (2) SHALL BE CONSTRUED TO APPLY TO CASES OF AIDS, HIV­RELATED ILLNESS, OR HIV INFECTION, WHICH SHALL BE GOVERNED SOLELY BY THE REPORTING REQUIREMENTS SET FORTH IN PART 14 OF ARTICLE 4 OF THIS TITLE.

SECTION 3.  25­3­109 (1), (3), (7), (8), and (11), Colorado Revised Statutes, 1989 Repl. Vol., as amended, are amended to read:

25­3­109.  Quality management functions ­ confidentiality and immunity. (1)  The general assembly hereby finds and declares that the implementation of quality management functions to evaluate and improve patient and resident care is essential to the operation of health care facilities licensed or certified by the department of public health and environment pursuant to section 25­1­107 (1) (l). For this purpose, it is necessary that the collection of information and data by such licensed or certified health care facilities be reasonably unfettered so a complete and thorough evaluation and improvement of the quality of patient and resident care can be accomplished. To this end, quality management information relating to the evaluation or improvement of the quality of health care services shall be confidential, EXCEPT AS PROVIDED IN SUBSECTION (3) OF THIS SECTION, and persons performing such functions shall be granted qualified immunity. It is the intent of the general assembly that nothing in this section revise, amend, or alter article 36 or part 1 of article 36.5 of title 12, C.R.S.

(3)  Except as otherwise provided in this section, any records, reports, or other information of a licensed or certified health care facility which THAT are part of a quality management program designed to identify, evaluate, and reduce the risk of patient or resident injury associated with care or to improve the quality of patient care shall be confidential information; except that such information shall be subject to any THE right of inspection or AND investigation as otherwise provided by law by GRANTED TO the department of public health and environment or other appropriate regulatory agency PURSUANT TO SECTIONS 25­1­122 AND 25­3­104 OR ANY RIGHT OF INSPECTION OTHERWISE GRANTED BY LAW TO AN APPROPRIATE REGULATORY AGENCY HAVING JURISDICTION FOR DISCIPLINARY OR LICENSING SANCTIONS.

(7)  Nothing in this section shall limit the department of public health and environment from

(a)  In response to an inquiry regarding a specific situation, confirming, without identifying a health care professional, that it has obtained a report concerning quality management information or that an investigation is pending;

(b)  disclosing information to a regulatory agency having jurisdiction to investigate the information; however, such information disclosed to a regulatory agency shall remain confidential.

(c)  Releasing a summary report of its findings after an investigation is completed or the department determines no investigation is warranted;

(d)  Releasing a summary report, notwithstanding its pending investigation, if it determines that such release is necessary for the immediate protection of the public health and safety.

(8)  A Summary report REPORTS, AS DESCRIBED IN SECTION 25­3­104 (2) (d) (I), may not identify a health care professional. Prior to releasing a ANY summary report, which AS DESCRIBED IN SECTION 25­3­104 (2) (d) (I), THAT contains information identifying a health care facility, the department of public health and environment shall notify the health care facility, and the facility shall be allowed a reasonable time to comment. If immediate release of information is necessary and prior oral notification cannot be given, notification shall be given as soon as reasonably possible and shall state why prior notice could not be given.

(11)  Nothing in this section shall be construed to limit admissibility into evidence of a summary report.

SECTION 4.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.