§1675. Confidentiality of medical quality assurance records; qualified immunity for participants

(a) Definitions

In this section:

(1) Health care provider

The term "health care provider" means any health care professional, including community health aides and practitioners certified under section 1616l of this title, who is-

(A) granted clinical practice privileges or employed to provide health care services at-

(i) an Indian health program; or

(ii) a health program of an urban Indian organization; and

(B) licensed or certified to perform health care services by a governmental board or agency or professional health care society or organization.

(2) Medical quality assurance program

The term "medical quality assurance program" means any activity carried out before, on, or after March 23, 2010, by or for any Indian health program or urban Indian organization to assess the quality of medical care, including activities conducted by or on behalf of individuals, Indian health program or urban Indian organization medical or dental treatment review committees, or other review bodies responsible for quality assurance, credentials, infection control, patient safety, patient care assessment (including treatment procedures, blood, drugs, and therapeutics), medical records, health resources management review, and identification and prevention of medical or dental incidents and risks.

(3) Medical quality assurance record

The term "medical quality assurance record" means the proceedings, records, minutes, and reports that-

(A) emanate from quality assurance program activities described in paragraph (2); and

(B) are produced or compiled by or for an Indian health program or urban Indian organization as part of a medical quality assurance program.

(b) Confidentiality of records

Medical quality assurance records created by or for any Indian health program or a health program of an urban Indian organization as part of a medical quality assurance program are confidential and privileged. Such records may not be disclosed to any person or entity, except as provided in subsection (d).

(c) Prohibition on disclosure and testimony

(1) In general

No part of any medical quality assurance record described in subsection (b) may be subject to discovery or admitted into evidence in any judicial or administrative proceeding, except as provided in subsection (d).

(2) Testimony

An individual who reviews or creates medical quality assurance records for any Indian health program or urban Indian organization who participates in any proceeding that reviews or creates such records may not be permitted or required to testify in any judicial or administrative proceeding with respect to such records or with respect to any finding, recommendation, evaluation, opinion, or action taken by such person or body in connection with such records except as provided in this section.

(d) Authorized disclosure and testimony

(1) In general

Subject to paragraph (2), a medical quality assurance record described in subsection (b) may be disclosed, and an individual referred to in subsection (c) may give testimony in connection with such a record, only as follows:

(A) To a Federal agency or private organization, if such medical quality assurance record or testimony is needed by such agency or organization to perform licensing or accreditation functions related to any Indian health program or to a health program of an urban Indian organization to perform monitoring, required by law, of such program or organization.

(B) To an administrative or judicial proceeding commenced by a present or former Indian health program or urban Indian organization provider concerning the termination, suspension, or limitation of clinical privileges of such health care provider.

(C) To a governmental board or agency or to a professional health care society or organization, if such medical quality assurance record or testimony is needed by such board, agency, society, or organization to perform licensing, credentialing, or the monitoring of professional standards with respect to any health care provider who is or was an employee of any Indian health program or urban Indian organization.

(D) To a hospital, medical center, or other institution that provides health care services, if such medical quality assurance record or testimony is needed by such institution to assess the professional qualifications of any health care provider who is or was an employee of any Indian health program or urban Indian organization and who has applied for or been granted authority or employment to provide health care services in or on behalf of such program or organization.

(E) To an officer, employee, or contractor of the Indian health program or urban Indian organization that created the records or for which the records were created. If ¹ that officer, employee, or contractor has a need for such record or testimony to perform official duties.

(F) To a criminal or civil law enforcement agency or instrumentality charged under applicable law with the protection of the public health or safety, if a qualified representative of such agency or instrumentality makes a written request that such record or testimony be provided for a purpose authorized by law.

(G) In an administrative or judicial proceeding commenced by a criminal or civil law enforcement agency or instrumentality referred to in subparagraph (F), but only with respect to the subject of such proceeding.

(2) Identity of participants

With the exception of the subject of a quality assurance action, the identity of any person receiving health care services from any Indian health program or urban Indian organization or the identity of any other person associated with such program or organization for purposes of a medical quality assurance program that is disclosed in a medical quality assurance record described in subsection (b) shall be deleted from that record or document before any disclosure of such record is made outside such program or organization.

(e) Disclosure for certain purposes

(1) In general

Nothing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of any Indian health program or urban Indian organization's medical quality assurance programs.

(2) Withholding from Congress

Nothing in this section shall be construed as authority to withhold any medical quality assurance record from a committee of either House of Congress, any joint committee of Congress, or the Government Accountability Office if such record pertains to any matter within their respective jurisdictions.

(f) Prohibition on disclosure of record or testimony

An individual or entity having possession of or access to a record or testimony described by this section may not disclose the contents of such record or testimony in any manner or for any purpose except as provided in this section.

(g) Exemption from Freedom of Information Act

Medical quality assurance records described in subsection (b) may not be made available to any person under section 552 of title 5.

(h) Limitation on civil liability

An individual who participates in or provides information to a person or body that reviews or creates medical quality assurance records described in subsection (b) shall not be civilly liable for such participation or for providing such information if the participation or provision of information was in good faith based on prevailing professional standards at the time the medical quality assurance program activity took place.

(i) Application to information in certain other records

Nothing in this section shall be construed as limiting access to the information in a record created and maintained outside a medical quality assurance program, including a patient's medical records, on the grounds that the information was presented during meetings of a review body that are part of a medical quality assurance program.

(j) Regulations

The Secretary, acting through the Service, shall promulgate regulations pursuant to section 1672 of this title.

(k) Continued protection

Disclosure under subsection (d) does not permit redisclosure except to the extent such further disclosure is authorized under subsection (d) or is otherwise authorized to be disclosed under this section.

(l) Inconsistencies

To the extent that the protections under part C of title IX of the Public Health Service Act (42 U.S.C. 229b–21 et seq.) [42 U.S.C. 299b–21 et seq.] (as amended by the Patient Safety and Quality Improvement Act of 2005 (Public Law 109–41; 119 Stat. 424)) and this section are inconsistent, the provisions of whichever is more protective shall control.

(m) Relationship to other law

This section shall continue in force and effect, except as otherwise specifically provided in any Federal law enacted after March 23, 2010.

(Pub. L. 94–437, title VIII, §805, as added Pub. L. 111–148, title X, §10221(a), Mar. 23, 2010, 124 Stat. 935 .)

Editorial Notes

References in Text

The Public Health Service Act, referred to in subsec. (l), is act July 1, 1944, ch. 373, 58 Stat. 682 . Part C of title IX of the Act is classified generally to part C (§299b–21 et seq.) of subchapter VII of chapter 6A of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables.

Codification

Section 805 of Pub. L. 94–437 is based on section 191 of title I of S. 1790, One Hundred Eleventh Congress, as reported by the Committee on Indian Affairs of the Senate in Dec. 2009, which was enacted into law by section 10221(a) of Pub. L. 111–148.

Prior Provisions

A prior section 1675, Pub. L. 94–437, title VIII, §805, formerly title VII, §705, Sept. 30, 1976, 90 Stat. 1414 ; renumbered title VIII, §805, Pub. L. 102–573, title VII, §701(a), (b), Oct. 29, 1992, 106 Stat. 4572 , provided that funds appropriated pursuant to this chapter were to remain available until expended, prior to repeal by Pub. L. 111–148, title X, §10221(a), Mar. 23, 2010, 124 Stat. 935 . The repeal is based on section 101(b)(11) of title I of S. 1790, One Hundred Eleventh Congress, as reported by the Committee on Indian Affairs of the Senate in Dec. 2009, which was enacted into law by section 10221(a) of Pub. L. 111–148.

¹ So in original. Probably should be "were created, if".