A Primer on PAMII

Congress has enacted several federal statutes to protect and advance the interests of those with mental illness or developmental disabilities, and of other mentally handicapped persons who do not meet the statutory criteria for being either mentally ill or developmentally disabled. These statutes were enacted partly in response to concerns about the mistreatment of the mentally handicapped in institutions, including both public and private hospitals, nursing homes, and correctional facilities. Not surprisingly, therefore, the agencies constituted to enforce these laws have been granted broad powers to monitor and investigate conditions in facilities that provide treatment and care for the mentally handicapped. In recent years, there has been significant litigation concerning the degree to which that investigatory authority includes a right of access to institutions' peer review and quality assurance records, which otherwise would be protected by state privilege statutes.

The Statutory Framework And History

Under the Protection and Advocacy for Mentally Ill Individuals Act (PAMII), 42 U.S.C. ' 1081 et seq., the Secretary of the Department of Health and Human Services makes allotments to “systems” designed to “protect and advocate the rights of individuals with mental illness.” Id. ' 10803. PAMII provides that these “Protection and Advocacy (P & A) Systems” “shall … have access to all records of” certain patients in hospitals and other health care facilities. Id. ' 10805(a)(4). This authority extends not only to the P & A Systems' “clients,” but in certain circumstances to non-clients with respect to whom complaints have been received, or with respect to whom there is probable cause to believe that abuse or neglect has occurred. Id. ' 10805(a)(4)(A) & (B). Courts have generally ruled, moreover, that the P & A Systems are the ultimate arbiters of whether probable cause exists. See Arizona Ctr. for Disability Law v. Allen, 197 F.R.D. 689, 693 (D. Ariz. 2000); Iowa Protection and Advocacy Services, Inc. v. Res-Care Premier, Inc., 2002 U.S. Dist. LEXIS 12942 (S.D. Iowa 2002). A system may even have access to the records of an incompetent individual whose guardian, conservator, or other representative objects, if there is a showing of “serious and immediate jeopardy” to the mentally ill person and the guardian, conservator, or representative has failed or refused to act on his or her behalf. Id. ' 10805(a)(4)(C). P & A Systems are afforded similar access to records under the Developmental Disability Assistance and Bill of Rights Act, 42 U.S.C. ' 15043(a)(2)(I), and under the Protection and Advocacy of Individual Rights Act, 29 U.S.C. ' 794e(f)(2). (The term “records” is defined in PAMII to include 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 occurring at such facilities that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.)

PAMII was originally enacted in 1986. Appropriations for the program expired in 1991, and were re-authorized that year. The House Report that accompanied the reauthorization stated that “it is the Committee's intent that the PAMII Act does not preempt state law regarding disclosures of peer review/medical review records relating to the proceedings of such committees.” Congress also authorized the Secretary of Health and Human Services to promulgate regulations to carry out the law. Pursuant to that authority, the Secretary of HHS promulgated regulations that provide, in part, that “information and individual records which shall be available to the P & A system under the Act shall include, but not be limited to … reports prepared … by or for the facility itself, that describe … injury occurring at the facility … [and] reports and records … prepared or maintained by the facility, in connection with such reports of incidents.” 42 C.F.R. ' 51.41(c)(2). The regulations further provide, however, that “nothing in this section is intended to preempt state law protecting records produced by medical care evaluation or peer review committees.” Id. '51.41(c)(4).

The Dispute over Federal Preemption

There have been a few federal decisions addressing conflicts between provisions of PAMII and state law, insofar as the issue of access to records is concerned. All have held that PAMII preempts state law to the extent they conflict. See, e.g., Office of Protection And Advocacy For Persons With Disabilities v. Armstrong, 2003 U.S. Dist. LEXIS 9500 (D.Conn. 2003) (PAMII preempts state's psychotherapist-patient privilege statute); Iowa Protection and Advocacy Services Inc. v. Rasmussen, 206 F. R. D. 630, 639 (S.D. Iowa 2002) (PAMII preempts statute making state agency's investigative report confidential); Advocacy Center v. Stalder, 128 F. Supp. 2nd 358, 366-67 (M.D. La. 1999); Oklahoma Disability Law Center Inc. v. Dillon Family & Youth Services Inc., 879 F. Supp. 1110, 1112 (N.D. Okla. 1995). This body of case law includes two federal appellate decisions that squarely address the tension between PAMII and state peer review and quality assurance privileges.

In the first of these decisions, Pennsylvania Protection & Advocacy Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000), the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania P & A System was entitled to have access to peer review records. The court stated, in a nutshell, that its holding was that “[t]he interpretation of PAMII set forth in 42 C.F.R. ' 51.41(c)(4) does not represent a reasonable interpretation of the statute, and we must therefore reject it … As noted, PAMII requires that groups such as [the Pennsylvania Protection & Advocacy Organization] be given access to a defined category of records. Peer review reports either fall within that definition or they do not. The statutory language cannot reasonably be construed to encompass identical peer review reports in some states but not others. If Congress wished to achieve that result, it needed to enact different statutory language. It could not achieve that result, in the face of the statutory language it enacted, simply by inserting a passage in a committee report. Nor could that result be achieved by means of a regulation. We thus hold that PAMII requires that [a Protection & Advocacy] Organization … be given access to peer review reports such as those at issue here irrespective of state law. PAMII preempts any state law that gives a health care facility the right to withhold such records.” Id. at 427-28 (citations omitted).

Very recently, the U.S. Court of Appeals for the Tenth Circuit, largely adopting the analysis of the Third Circuit, reached the same result. Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003). The Tenth Circuit considered and rejected a series of interpretative arguments advanced by the Colorado Department of Human Services (CDHS), which sought to protect peer review and quality assurance records relating to a series of suicides at a CDHS facility. Concluding that peer review and quality assurance records are subject to disclosure under PAMII, the court went on to hold that PAMII preempts any state law to the contrary because it contains express preemption language, and the state and federal laws are at least potentially in actual conflict. In the only state appellate decision to date addressing the peer review preemption issue, Disabilities Rights Center Inc. v. Commissioner, New Hampshire Department of Corrections, 732 A.2d 1021 (N.H. 1999), the New Hampshire Supreme Court reached the opposite result. There, the court gave effect to the HHS regulations, and to the expression of Congressional intent that the Third and Tenth Circuits found immaterial. The court reasoned that it should narrowly interpret preemption language in a federal statute, and that “the historic police powers of the states [are] not to be superceded by [federal law] unless that was the clear and manifest purpose of Congress.” The court also found it “significant that PAMII and [the New Hampshire peer review statutes] serve a similar end.” Id. at 678. The court explained: “Both statutes benefit mentally ill individuals by fostering the improvement of services and conditions at medical and psychiatric care facilities. Were we to find preemption, the [psychiatric facility] would no longer be encouraged to engage in self-critical review and the mentally ill individuals receiving services there would no longer benefit from the improvements that flow from its quality assurance program. In this sense, preemption would create a result contrary to the basic congressional purpose that underlies PAMII. We are 'generally reluctant to infer preemption, and it would be particularly inappropriate to do so in this case because the basic purposes of [the state and federal statutes] are similar.'” Id. at 678-79 (quoting Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978)).

Applying Houstoun and Hammons

This body of case law, which weighs in favor of federal preemption, creates a challenge for any institution hoping to preserve meaningful peer review and other quality assurance processes. There are, however, several respects in which the Houston and Hammons cases are vulnerable to criticism.

First, it is significant that neither the Third Circuit nor the Tenth Circuit had to consider the preemption issue. The Pennsylvania and Colorado statutes at issue in those cases protected peer review and quality assurance records only from discovery and use as evidence in civil actions. In both cases, P & A systems sought the records for investigative purposes. Houstoun, 228 F.3d at 428; Hammons, 323 F.3d at 1273 n.13. Both courts simply could have said that PAMII requires disclosure and state law does not forbid it, so no preemption issue was presented. Thus, on the specific issue of preemption, both the Third and Tenth Circuit decisions are arguably dictum.

Second, and perhaps more importantly, both courts ignored or misconceived the state policies underlying peer review confidentiality statutes. Both courts made much of the fact that P & A Systems generally are required to “maintain the confidentiality of such records to the same extent as is required of the provider of such services.” 42 U.S.C. ' 10806(a). The agency may, however, disclose the records to the individual who is the subject of the information contained therein, unless “the mental health professional responsible for supervising the provision of mental health services to such individual has provided the system with a written determination that disclosure of such information to such individual would be detrimental to such individual's health.” 42 U.S.C. ' 10806(b)(1). In the event such a determination is made, there is a process for appeal of the decision denying disclosure to the patient.

In Houstoun, the Third Circuit reasoned that because the Pennsylvania statute was intended only to keep peer review reports “out of the hands of lawyers involved in civil litigation,” and the P & A agency could disclose only to the client/patient, the disclosure mandated by PAMII did not offend state policy. Houstoun, 228 F.3d at 428-29. The court did not consider whether disclosure to the P & A system's client would be likely to result in a second disclosure to the client's lawyer, defeating the purpose of the state confidentiality statute. In Hammons, the Tenth Circuit addressed the issue explicitly, but still avoided it. There, the defendants argued that PAMII's “confidentiality” provision did nothing to alleviate the harm caused by the disclosure of peer review records, since the P & A system was “obligated to reveal peer review records to patients under certain circumstances,” and had “never denied any such obligations.” Hammons, 323 F.3d at 1271 n.10 & 1273 n.13. The court simply responded that that issue was “not before [it].” Thus, the court refused to consider the cost of disclosing peer review records to patients and their families – specifically, how disclosure might undermine state health care policy favoring self-critical analysis by health care institutions and practitioners.

Conclusion

As similar cases wind their way through the courts, hospitals and other facilities providing care for mentally ill and handicapped patients should be prepared to argue that the Third and Tenth Circuits gave insufficient attention to the policies underlying state peer review statutes and their relationship to the policies underlying federal statutory law. The New Hampshire Supreme Court correctly recognized that state peer review statutes, by fostering self-critical analysis in a confidential setting, advance the goal of improving care — the very same goal advanced by the federal laws that give P & A systems access to patients' records. At the very least, courts should be encouraged to give serious consideration to the congruity between state health care policy, as it is reflected in state laws making peer review and quality assurance activities confidential, and the federal policy underlying PAMII. Ignoring the cost of disclosure, as the Houstoun and Hammons courts have done, both skews the preemption analysis and heightens the risk that health care providers will be inhibited from engaging in the robust self-criticism that is essential to improving quality of care.

Congress has enacted several federal statutes to protect and advance the interests of those with mental illness or developmental disabilities, and of other mentally handicapped persons who do not meet the statutory criteria for being either mentally ill or developmentally disabled. These statutes were enacted partly in response to concerns about the mistreatment of the mentally handicapped in institutions, including both public and private hospitals, nursing homes, and correctional facilities. Not surprisingly, therefore, the agencies constituted to enforce these laws have been granted broad powers to monitor and investigate conditions in facilities that provide treatment and care for the mentally handicapped. In recent years, there has been significant litigation concerning the degree to which that investigatory authority includes a right of access to institutions' peer review and quality assurance records, which otherwise would be protected by state privilege statutes.

The Statutory Framework And History

Under the Protection and Advocacy for Mentally Ill Individuals Act (PAMII), 42 U.S.C. ' 1081 et seq., the Secretary of the Department of Health and Human Services makes allotments to “systems” designed to “protect and advocate the rights of individuals with mental illness.” Id. ' 10803. PAMII provides that these “Protection and Advocacy (P & A) Systems” “shall … have access to all records of” certain patients in hospitals and other health care facilities. Id. ' 10805(a)(4). This authority extends not only to the P & A Systems' “clients,” but in certain circumstances to non-clients with respect to whom complaints have been received, or with respect to whom there is probable cause to believe that abuse or neglect has occurred. Id. ' 10805(a)(4)(A) & (B). Courts have generally ruled, moreover, that the P & A Systems are the ultimate arbiters of whether probable cause exists. See Arizona Ctr. for Disability Law v. Allen , 197 F.R.D. 689, 693 (D. Ariz. 2000); Iowa Protection and Advocacy Services, Inc. v. Res-Care Premier, Inc., 2002 U.S. Dist. LEXIS 12942 (S.D. Iowa 2002). A system may even have access to the records of an incompetent individual whose guardian, conservator, or other representative objects, if there is a showing of “serious and immediate jeopardy” to the mentally ill person and the guardian, conservator, or representative has failed or refused to act on his or her behalf. Id. ' 10805(a)(4)(C). P & A Systems are afforded similar access to records under the Developmental Disability Assistance and Bill of Rights Act, 42 U.S.C. ' 15043(a)(2)(I), and under the Protection and Advocacy of Individual Rights Act, 29 U.S.C. ' 794e(f)(2). (The term “records” is defined in PAMII to include 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 occurring at such facilities that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.)

PAMII was originally enacted in 1986. Appropriations for the program expired in 1991, and were re-authorized that year. The House Report that accompanied the reauthorization stated that “it is the Committee's intent that the PAMII Act does not preempt state law regarding disclosures of peer review/medical review records relating to the proceedings of such committees.” Congress also authorized the Secretary of Health and Human Services to promulgate regulations to carry out the law. Pursuant to that authority, the Secretary of HHS promulgated regulations that provide, in part, that “information and individual records which shall be available to the P & A system under the Act shall include, but not be limited to … reports prepared … by or for the facility itself, that describe … injury occurring at the facility … [and] reports and records … prepared or maintained by the facility, in connection with such reports of incidents.” 42 C.F.R. ' 51.41(c)(2). The regulations further provide, however, that “nothing in this section is intended to preempt state law protecting records produced by medical care evaluation or peer review committees.” Id. '51.41(c)(4).

The Dispute over Federal Preemption

There have been a few federal decisions addressing conflicts between provisions of PAMII and state law, insofar as the issue of access to records is concerned. All have held that PAMII preempts state law to the extent they conflict. See, e.g., Office of Protection And Advocacy For Persons With Disabilities v. Armstrong, 2003 U.S. Dist. LEXIS 9500 (D.Conn. 2003) (PAMII preempts state's psychotherapist-patient privilege statute); Iowa Protection and Advocacy Services Inc. v. Rasmussen , 206 F. R. D. 630, 639 (S.D. Iowa 2002) (PAMII preempts statute making state agency's investigative report confidential); Advocacy Center v. Stalder , 128 F. Supp. 2nd 358, 366-67 (M.D. La. 1999); Oklahoma Disability Law Center Inc. v. Dillon Family & Youth Services Inc. , 879 F. Supp. 1110, 1112 (N.D. Okla. 1995). This body of case law includes two federal appellate decisions that squarely address the tension between PAMII and state peer review and quality assurance privileges.

In the first of these decisions, Pennsylvania Protection & Advocacy Inc. v. Houstoun , 228 F.3d 423 (3rd Cir. 2000), the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania P & A System was entitled to have access to peer review records. The court stated, in a nutshell, that its holding was that “[t]he interpretation of PAMII set forth in 42 C.F.R. ' 51.41(c)(4) does not represent a reasonable interpretation of the statute, and we must therefore reject it … As noted, PAMII requires that groups such as [the Pennsylvania Protection & Advocacy Organization] be given access to a defined category of records. Peer review reports either fall within that definition or they do not. The statutory language cannot reasonably be construed to encompass identical peer review reports in some states but not others. If Congress wished to achieve that result, it needed to enact different statutory language. It could not achieve that result, in the face of the statutory language it enacted, simply by inserting a passage in a committee report. Nor could that result be achieved by means of a regulation. We thus hold that PAMII requires that [a Protection & Advocacy] Organization … be given access to peer review reports such as those at issue here irrespective of state law. PAMII preempts any state law that gives a health care facility the right to withhold such records.” Id. at 427-28 (citations omitted).

Very recently, the U.S. Court of Appeals for the Tenth Circuit, largely adopting the analysis of the Third Circuit, reached the same result. Center for Legal Advocacy v. Hammons , 323 F.3d 1262 (10th Cir. 2003). The Tenth Circuit considered and rejected a series of interpretative arguments advanced by the Colorado Department of Human Services (CDHS), which sought to protect peer review and quality assurance records relating to a series of suicides at a CDHS facility. Concluding that peer review and quality assurance records are subject to disclosure under PAMII, the court went on to hold that PAMII preempts any state law to the contrary because it contains express preemption language, and the state and federal laws are at least potentially in actual conflict. In the only state appellate decision to date addressing the peer review preemption issue, Disabilities Rights Center Inc. v. Commissioner , New Hampshire Department of Corrections, 732 A.2d 1021 (N.H. 1999), the New Hampshire Supreme Court reached the opposite result. There, the court gave effect to the HHS regulations, and to the expression of Congressional intent that the Third and Tenth Circuits found immaterial. The court reasoned that it should narrowly interpret preemption language in a federal statute, and that “the historic police powers of the states [are] not to be superceded by [federal law] unless that was the clear and manifest purpose of Congress.” The court also found it “significant that PAMII and [the New Hampshire peer review statutes] serve a similar end.” Id. at 678. The court explained: “Both statutes benefit mentally ill individuals by fostering the improvement of services and conditions at medical and psychiatric care facilities. Were we to find preemption, the [psychiatric facility] would no longer be encouraged to engage in self-critical review and the mentally ill individuals receiving services there would no longer benefit from the improvements that flow from its quality assurance program. In this sense, preemption would create a result contrary to the basic congressional purpose that underlies PAMII. We are 'generally reluctant to infer preemption, and it would be particularly inappropriate to do so in this case because the basic purposes of [the state and federal statutes] are similar.'” Id. at 678-79 (quoting Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978)).

Applying Houstoun and Hammons

This body of case law, which weighs in favor of federal preemption, creates a challenge for any institution hoping to preserve meaningful peer review and other quality assurance processes. There are, however, several respects in which the Houston and Hammons cases are vulnerable to criticism.

First, it is significant that neither the Third Circuit nor the Tenth Circuit had to consider the preemption issue. The Pennsylvania and Colorado statutes at issue in those cases protected peer review and quality assurance records only from discovery and use as evidence in civil actions. In both cases, P & A systems sought the records for investigative purposes. Houstoun, 228 F.3d at 428; Hammons, 323 F.3d at 1273 n.13. Both courts simply could have said that PAMII requires disclosure and state law does not forbid it, so no preemption issue was presented. Thus, on the specific issue of preemption, both the Third and Tenth Circuit decisions are arguably dictum.

Second, and perhaps more importantly, both courts ignored or misconceived the state policies underlying peer review confidentiality statutes. Both courts made much of the fact that P & A Systems generally are required to “maintain the confidentiality of such records to the same extent as is required of the provider of such services.” 42 U.S.C. ' 10806(a). The agency may, however, disclose the records to the individual who is the subject of the information contained therein, unless “the mental health professional responsible for supervising the provision of mental health services to such individual has provided the system with a written determination that disclosure of such information to such individual would be detrimental to such individual's health.” 42 U.S.C. ' 10806(b)(1). In the event such a determination is made, there is a process for appeal of the decision denying disclosure to the patient.

In Houstoun, the Third Circuit reasoned that because the Pennsylvania statute was intended only to keep peer review reports “out of the hands of lawyers involved in civil litigation,” and the P & A agency could disclose only to the client/patient, the disclosure mandated by PAMII did not offend state policy. Houstoun, 228 F.3d at 428-29. The court did not consider whether disclosure to the P & A system's client would be likely to result in a second disclosure to the client's lawyer, defeating the purpose of the state confidentiality statute. In Hammons, the Tenth Circuit addressed the issue explicitly, but still avoided it. There, the defendants argued that PAMII's “confidentiality” provision did nothing to alleviate the harm caused by the disclosure of peer review records, since the P & A system was “obligated to reveal peer review records to patients under certain circumstances,” and had “never denied any such obligations.” Hammons, 323 F.3d at 1271 n.10 & 1273 n.13. The court simply responded that that issue was “not before [it].” Thus, the court refused to consider the cost of disclosing peer review records to patients and their families – specifically, how disclosure might undermine state health care policy favoring self-critical analysis by health care institutions and practitioners.

Conclusion

As similar cases wind their way through the courts, hospitals and other facilities providing care for mentally ill and handicapped patients should be prepared to argue that the Third and Tenth Circuits gave insufficient attention to the policies underlying state peer review statutes and their relationship to the policies underlying federal statutory law. The New Hampshire Supreme Court correctly recognized that state peer review statutes, by fostering self-critical analysis in a confidential setting, advance the goal of improving care — the very same goal advanced by the federal laws that give P & A systems access to patients' records. At the very least, courts should be encouraged to give serious consideration to the congruity between state health care policy, as it is reflected in state laws making peer review and quality assurance activities confidential, and the federal policy underlying PAMII. Ignoring the cost of disclosure, as the Houstoun and Hammons courts have done, both skews the preemption analysis and heightens the risk that health care providers will be inhibited from engaging in the robust self-criticism that is essential to improving quality of care.