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Protecting quality assurance documents from discovery: steps to help keep plaintiffs' attorneys away from sensitive quality-of-care information.

There is no guarantee that sensitive quality assurance (QA) documents, such as consultant reports about problems in a nursing home, will remain confidential in adversarial litigation. The law governing plaintiffs' access to such documents is not clearly established. This creates difficulties for nursing home employees involved in the QA process, because documents they create can later be used as admissions against the nursing home in a lawsuit.

Yet nursing homes can make it less likely that a plaintiff will have access to candid self-critical information found in sensitive QA documents. This article outlines procedures, which are based on California Evid. Code [section] 1157, that a facility in California can use to maximize the chances that a court will rule that sensitive QA documents remain protected from disclosure. Other states have similar laws. If you have a question about a particular document, you should contact a qualified attorney. This article focuses on QA committee documents, but the principles can be applied to other committees dedicated to ensuring quality of care, such as the pharmaceutical services committee or the infection control committee.

Protected Document Features

Protected documents have certain features, which are outlined below. A facility should mold its QA efforts to produce documents that meet these criteria. While these criteria might seem cumbersome (such as the requirement that a document be created by an entire quality committee), they arguably create an effective QA program. Given the increased likelihood that a document will be protected from disclosure to a plaintiff in litigation if it has the features described below, the cumbersome-ness might pay off in terms of reduced liability exposure. Incorporating these features into a document will not guarantee that a court will protect the document's confidentiality because the law governing these matters is not clearly established.

Here are general features of protected documents:

Protected documents are generated by a QA committee. The fact that a quality committee generates a document does not by itself give it protected status, but it is a factor courts may consider.

Protected documents contain analyses of quality of care. An analysis is a product of reviewing facts and is not the facts themselves. For example, census data and payroll data contain only facts, but by comparing them, one can come up with a conclusion as to whether there are enough staff members to care for the resident population. That conclusion, which is not found in the source data themselves, is an analysis.

[ILLUSTRATION OMITTED]

Protected documents contain evaluations of quality of care. Evaluations, like analyses, are based on source data but are not found in the data themselves. Thus, a quality committee might evaluate an employee's performance as being either good, bad, or somewhere in between. The evaluation could contain observations about which areas of an employee's performance are acceptable, which areas need improvement, and how to improve in these areas. Such conclusions not found in the source data themselves are evaluations.

Protected documents are not administrative documents. Administrative documents that reflect routine operations of a facility, such as a resident's medical records or a contract with a regular care provider, are not protected from disclosure to plaintiffs. Protected documents deal with distinct care issues that might arise or with the development of approaches to such issues. While a quality committee's task in this regard is ongoing, it is not a routine task, such as the matters reflected in records concerning a facility's daily operations.

Quality committee members, and not facility management or administrative staff, should be responsible for addressing quality issues so that the documents generated in connection with such issues will be from the quality committee and not be considered administrative documents.

Protected documents' purpose is to improve the quality of care rendered in the facility. The documents' purpose should be the same as the committee's purpose: to improve the quality of care rendered in the facility. Such a document may contain suggestions on how to improve care. It may also contain an analysis of a problem that helps the reader understand the problem's context and give suggestions on how to solve it. The purpose of a protected document is not simply to report facts, to describe the facility, or to memorialize care given to a resident. It is to give guidance on how to improve care in light of such facts.

Protected documents reflect a committee investigation. A protected document is prepared to address a specific problem in the quality of care and can contain the results of a committee's investigation into such a problem. A protected document may contain facts relating to the problem that will help the quality committee evaluate the problem and generate a response to it.

Procedures for Creating Documents

The documents in the categories listed below should be created using the procedures listed for each category. All of these document categories relate to documents whose protection under the law is uncertain. Quality committee meeting minutes are not addressed here because they are generally found to be protected.

Each of these documents should have a caption at the bottom indicating that it is a protected document, such as:
 THIS DOCUMENT HAS BEEN CREATED BY THE QUALITY ASSURANCE COMMITTEE
 FOR THE PURPOSE OF MONITORING AND EVALUATING THE QUALITY OF CARE IN
 THE FACILITY. IT IS PROTECTED FROM DISCOVERY BY EVID. CODE [section]
 1157 AND BY THE WORK PRODUCT PRIVILEGE.


Each of these documents should also be kept in a single filing location along with all other QA documents (such as the QA policies and procedures, committee minutes, lists of committee members and their duties, etc.). The list below is not an exhaustive list of documents that can be protected--any documents that contain the features outlined above can be protected.

The procedures outlined below should be part of the committee's policies and procedures. For a sample document of policies and procedures relating to the documents discussed below, see figure 1.

Some of the procedures below call for the creation of draft documents before a final version is created. The format of these draft documents should make it easy for committee members to add comments. Thus, drafts should be double-space and have 1 1/2" margins.

Consultant reports. All consultants should be QA committee members (for an example of a letter offering a consultant a committee position, see figure 2). If a consultant already serves the facility or already serves on the committee, he/she should be made an integral part of the committee (for a sample letter explaining the QA process to someone who already has a relationship with a facility, see figure 3).

The entire committee should participate in the creation of consultant reports. The most efficient way to accomplish this is to have a consultant who is in charge of a specific area (such as a pharmacy consultant) circulate a draft report to the committee before a meeting. Each committee member should review the draft, comment on it, and return it to the consultant either before or during the committee meeting. The consultant should then incorporate everyone's comments into a document that reflects the entire committee's findings and that should be signed by all committee members.

For liability purposes, it is best not to generate consultant reports if they are not required by a regulation because a plaintiff may obtain access to them under the current uncertain status of the law. If a consultant report is generated, a facility should have a clear plan for destroying it at an appropriate time.

Incident reports. When an incident that should be memorialized in an incident report occurs, the witness to the incident should report it to a committee member. That committee member should describe the incident in the incident report and include any other information that might be helpful, such as an evaluation of the witness's or responsible party's actions, an analysis of how this incident may be related to other incidents, etc. That report should then be submitted to the quality committee and discussed by the committee, whose members may add more comments to the incident report, if necessary. Once the entire committee has had an opportunity to review and discuss the incident report and add any comments, each committee member should sign the report.

Employee disciplinary records. Employee disciplinary documents should be generated by a committee member and submitted to the entire committee in draft form. The committee should discuss the draft and write comments on it (a portion should be at the end of every draft where committee members may add their comments). Each draft disciplinary document should have a separate page on which each committee member may rate the performance of the employee in question on various criteria on a scale of 1 to 10 (such criteria can include overall evaluation, responsiveness to supervisor input, effort, and attitude).

The committee member in charge of preparing the draft disciplinary document should prepare a document that incorporates all committee members' comments. The document should be signed by the entire committee, and committee members' evaluation sheets should be attached.

Resident council minutes. A committee member should attend resident council meetings and take down their minutes. Each concern that is raised by the resident council should be placed in one column of the minutes. Those concerns should be presented to the committee, and next to each concern the committee's response should be entered. Then each committee member should sign the resident council meeting minutes. For an example of this document, see figure 4.

[FIGURE 4 OMITTED]

Conclusion

There are no guarantees that a nursing home's documents will be protected under the current unsettled state of the law. However, a facility can position itself to maximize the confidentiality of its sensitive documents by following the approach outlined above and thereby foster an effective QA program that candidly addresses quality issues.

Jonathan Van Ee, Esq., is an attorney at Ropers, Majeski Kohn & Bentley in San Jose, California, and has defended numerous nursing home cases. For more information, call (408) 947-4827. To send your comments to the author and editors, please e-mail van_ee1105@nursinghomesmagazine.com. To order reprints in quantities of 100 or more, call (866) 377-6454.

BY JONATHAN VAN EE, ESQ.
POLICIES AND PROCEDURES RELATING TO SENSITIVE INFORMATION

 The purpose of the following policies and procedures relating to
sensitive information is to increase the effectiveness of the Quality
Assurance Committee's efforts to improve the quality of care rendered in
the facility.

 I. Policies and Procedures Governing All Classes of Documents
Containing Sensitive Information
 A. Committee record files. All committee records must be kept in a
single location.
 B. Caption. All committee records shall contain the following caption:
THIS DOCUMENT HAS BEEN CREATED BY THE QUALITY ASSURANCE COMMITTEE FOR
THE PURPOSE OF MONITORING AND EVALUATING THE QUALITY OF CARE IN THE
FACILITY. IT IS PROTECTED FROM DISCOVERY BY EVID. CODE [section] 1157
AND BY THE WORK PRODUCT PRIVILEGE.
 II. Specific Committee Records
 The committee shall evaluate, monitor, and investigate quality of care
in the facility with the following records:
 A. Consultant reports. All consultants must be members of the
committee, and the entire committee shall participate in the creation of
consultant reports. A consultant who is in charge of a specific area
(such as a pharmacy consultant) shall circulate a draft report to the
committee before a meeting. Each committee member shall review the
draft, comment on it, and return it to the consultant either before or
during the committee meeting. The consultant shall incorporate committee
members' comments into a final report, which shall be signed by all
committee members.
 B. Incident reports. When an incident that should be memorialized in
an incident report occurs, the witness to the incident shall report it
to the nearest committee member on duty. If no committee member is on
duty, then the witness shall describe the incident to the first
committee member that arrives at the facility.
 The committee member shall describe the incident in an incident report
and include any other information that may be helpful, such as an
evaluation of the witnesses' or responsible party's actions, an analysis
of how the incident may be related to other incidents, etc. That report
shall be submitted to the committee, which shall discuss the report and
add more comments to it, if necessary. Once the entire committee has had
an opportunity to review and discuss the incident report and add any
comments, each member of the committee shall sign the incident report.
 C. Employee disciplinary records. Employee disciplinary records shall
be generated by a committee member responsible for disciplinary matters
and be submitted to the entire committee in draft form. The committee
shall discuss the draft and may write any comments it might have on the
draft records. Each draft disciplinary document should have a separate
page on which each committee member may rate the performance of the
employee in question on various criteria on a scale of 1 to 10 (such
criteria can include overall evaluation, responsiveness to supervisor
input, effort, and attitude).
 The committee person in charge of preparing the draft disciplinary
document shall prepare a document that incorporates all committee
members' comments. The document shall be signed by the entire committee,
and the evaluation sheets shall be attached.
 D. Resident council minutes. A committee member shall attend resident
council meetings and take down their minutes. Each concern raised by
the resident council shall be placed in one column in the minutes. Those
concerns will be presented to the committee, and next to each concern
the committee's response shall be entered. Then each committee member
shall sign the resident council meeting minutes.
 E. Other documents. The committee may employ other documents, not
described above, in the furtherance of its mission to monitor, evaluate,
and improve quality of care.

Figure 1. A sample of a document discussing policies and procedures
relating to sensitive information in protected documents.

[date]

[name of sender]
Chairperson of the Quality Assurance Committee
[contact information of the nursing home]

[contact information of the consultant]

Dear Mr./Mrs./Ms. [consultant's last name]:

After a review of your qualifications, the Quality Assurance Committee
of [name of nursing home] has unanimously decided that you would be a
valuable part of the team, whose task it is to evaluate and monitor the
quality of care at our facility. Thus, in my capacity as a
representative of the committee, I hereby extend to you an offer to
become a member of the Quality Assurance Committee.

Our committee takes both an interdisciplinary approach and a team
approach to carrying out our task of monitoring and evaluating the
quality of care in our facility, and we are pleased to make an offer to
you to be a part of that effort. In addition to any duties that may be
established in the policies and procedures of our facility, as a member
of our team you will be expected to discuss quality-of-care issues with
the team and assist in the preparation of committee reports that
articulate the findings of the committee.

The compensation, the contract governing our relationship, and other
terms accompanying this offer are attached hereto as Exhibit A.

If you decide to accept this offer of employment, please sign below.

Very truly yours,

[signature]
[printed name]

____________ (signature)
____________ (write name)

Figure 2. A sample of a form letter offering a consultant a position on
the QA committee.

[date]

[name of sender]
Chairperson of the Quality Assurance Committee
[contact information of the nursing home]

[contact information of the addressee]

Dear Mr./Mrs./Ms. [addressee's last name]:

Thank you for your service on the Quality Assurance Committee. Please be
advised that in an effort to increase the effectiveness of the quality
assurance process in the facility, the committee has decided to adopt
the "Policies and Procedures Relating to Sensitive Information" that is
attached hereto as Exhibit A. Please read these new policies and
procedures and, if you have any questions, please submit them to the
committee.

Thank you once again for your service in the furtherance of this
facility's quality assurance efforts.

Very truly yours,

[signature]
[printed name]

Figure 3. A sample of a letter given to existing committee members when
new QA policies and procedures are implemented.
COPYRIGHT 2005 Vendome Group LLC
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2005, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Van Ee, Jonathan
Publication:Nursing Homes
Geographic Code:1USA
Date:Nov 1, 2005
Words:2687
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