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U.S. Court In Colorado Says PAMII Act Does Not Pre-Empt Peer Review Privilege Under State Law


HLD, v. 30, n. 3 (March 2002)

U.S. Court In Colorado Says PAMII Act Does Not Pre-Empt Peer Review Privilege Under State Law

Plaintiff Center for Legal Advocacy (CLA), a patient protection and advocacy group for the mentally ill in Colorado, sought access to hospital records and documents related to four suicide deaths at the Colorado Mental Health Institute (CMHI). Pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (PAMII), 42 U.S.C. � 10801, CLA sought declaratory judgment and injunctive relief that it was legally entitled to certain hospital peer review materials. The Colorado Department of Human Services and CMHI (collectively defendants) turned over all other patient records but argued that state law prevented the disclosure of peer review documents. A federal Magistrate recommended a ruling in CLA's favor, concluding that PAMII disclosure requirements applied to the peer review materials and therefore pre-empted the state's confidentiality statutes. Defendants objected.

The U.S. District Court for the District of Colorado vacated the Magistrate's recommended ruling, holding that "PAMII does not preempt the Colorado peer review privilege." PAMII provides that "the term 'records' includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect and injury . . . and the steps taken to investigate such incidents and discharge planning records." 42 U.S.C. � 10806. The court rejected the Magistrate's conclusion that the broad definition of records in � 10806 encompassed the peer review materials at issue. In so holding, the court declined to follow the Third Circuit's decision in Pennsylvania Protection and Advocacy Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000), which found that "peer review disclosure was not limited by a Pennsylvania confidentiality law," and that a Department of Health and Human Services regulation exempting peer review records protected by state laws, 42 C.F.R. � 51.41(c), was an "unreasonable interpretation of [PAMII] unworthy of deference."

Instead, the court found compelling the New Hampshire Supreme Court's reasoning in Disabilities Rights Ctr., Inc. v. Commissioner, 732 A.2d 1021, which held that PAMII did not require the disclosure of hospital quality assurance records protected under state law. Citing PAMII's legislative history and the lack of express pre-emption language in the statute, the court concluded that "[i]n conferring the privilege, Colorado is not attempting to regulate an area where the federal government occupies the field." In the court's view, PAMII grants access to patient records, not hospital peer review materials, a distinction that "inexplicable eluded the Third Circuit in Houstoun." Accordingly, the court denied CLA's request for access to the peer review and quality assurance records.

Center for Legal Advocacy v. Hammons, No. 99-NY-1478-CB (D. Colo. Nov. 14, 2001) (8 pages).

Health Lawyers thanks Frederick Yu, of Sherman & Howard, in Denver, Colorado, for sending us a copy of this decision.

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