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
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.