A BILL TO BE ENTITLED
AN ACT to abolish current prohibitions against discovery of information and materials obtained in peer review proceedings for certain health care providers.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 90‑14(a)(5) reads as rewritten:
"(5)	Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals, or any other type of material or by reason of any physical or mental abnormality. The Board is empowered and authorized to require a physician licensed by it to submit to a mental or physical examination by physicians designated by the Board before or after charges may be presented against the physician, and the results of the examination shall be admissible in evidence in a hearing before the Board and is subject to discovery in a civil action."
SECTION 2.  G.S. 90‑14(d) reads as rewritten:
"(d)	The Board and its members and staff may release confidential or nonpublic information to any health care licensure board in this State or another state about the issuance, denial, annulment, suspension, or revocation of a license, or the voluntary surrender of a license by a Board‑licensed physician, including the reasons for the action, or an investigative report made by the Board. The Board shall notify the physician within 60 days after the information is transmitted. A summary of the information that is being transmitted shall be furnished to the physician. If the physician requests, in writing, within 30 days after being notified that such information has been transmitted, he shall be furnished a copy of all information so transmitted. The notice or copies of the information may be provided if the information relates to an ongoing criminal investigation by any law‑enforcement agency, or authorized Department of Health and Human Services personnel with enforcement or investigative responsibilities, and the notice or copies of the information is subject to discovery in a civil action."
SECTION 3.  G.S. 90‑21.22 reads as rewritten:
"§ 90‑21.22.  Peer review agreements.
(a)	The North Carolina Medical Board may, under rules adopted by the Board in compliance with Chapter 150B of the General Statutes, enter into agreements with the North Carolina Medical Society and its local medical society components, and with the North Carolina Academy of Physician Assistants for the purpose of conducting peer review activities. Peer review activities to be covered by such agreements shall include investigation, review, and evaluation of records, reports, complaints, litigation and other information about the practices and practice patterns of physicians licensed by the Board, and of physician assistants approved by the Board, and shall include programs for impaired physicians and impaired physician assistants. Agreements between the Academy and the Board shall be limited to programs for impaired physicians and physician assistants and shall not include any other peer review activities.
(b)	Peer review agreements shall include provisions for the society and for the Academy to receive relevant information from the Board and other sources, conduct the investigation and review in an expeditious manner,  make reports of investigations and evaluations to the Board, and to do other related activities for promoting a coordinated and effective peer review process. Peer review agreements shall include provisions assuring due process. Peer review agreements shall not include provisions that prohibit the discovery in a civil action of information or materials obtained from peer review activities.
(c)	Each society that enters a peer review agreement with the Board shall establish and maintain a program for impaired physicians licensed by the Board. The Academy, after entering a peer review agreement with the Board, shall either enter an agreement with the North Carolina Medical Society for the inclusion of physician assistants in the Society's program for impaired physicians, or shall establish and maintain the Academy's own program for impaired physician assistants. The purpose of the programs shall be to identify, review, and evaluate the ability of those physicians and physician assistants to function in their professional capacity and to provide programs for treatment and rehabilitation. The Board may provide funds for the administration of impaired physician and impaired physician assistant programs and shall adopt rules with provisions for definitions of impairment; guidelines for program elements; procedures for receipt and use of information of suspected impairment; procedures for intervention and referral; monitoring treatment, rehabilitation, post‑treatment support and performance; reports of individual cases to the Board; and periodic reporting of statistical information.
(d)	Upon investigation and review of a physician licensed by the Board, or a physician assistant approved by the Board, or upon receipt of a complaint or other information, a society that enters a peer review agreement with the Board, or the Academy if it has a peer review agreement with the Board, as appropriate, shall report immediately to the Board detailed information about any physician or physician assistant licensed or approved by the Board if:
(1)	The physician or physician assistant constitutes an imminent danger to the public or to himself;
(2)	The physician or physician assistant refuses to cooperate with the program, refuses to submit to treatment, or is still impaired after treatment and exhibits professional incompetence; or
(3)	It reasonably appears that there are other grounds for disciplinary action.
(e)	Any confidential patient information  acquired, created, or used in good faith by the Academy or a society pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. Any other nonpublic information acquired, created, or used in good faith by the Academy or a society pursuant to this section is subject to discovery or subpoena in a civil case. A person participating in good faith in the peer review or impaired physician or impaired physician assistant programs of this section may be required in a civil case to disclose any information acquired or opinions, recommendations, or evaluations acquired or developed solely in the course of participating in any agreements pursuant to this section.
(f)	Peer review activities conducted in good faith pursuant to any agreement under this section shall not be grounds for civil action under the laws of this State and are deemed to be State directed and sanctioned and shall constitute State action for the purposes of application of antitrust laws."
SECTION 4.  G.S. 90‑21.22A(c) reads as rewritten:  
"(c)	The proceedings of a medical review or quality assurance committee, the records and materials it produces, and the materials it considers shall  not be considered public records within the meaning of G.S. 132‑1, 131E‑309, or 58‑2‑100. The proceedings of a medical review or quality assurance committee, the records and materials it produces, and the materials it considers is subject to discovery or introduction into evidence in any civil action against a provider of health care services who directly provides services and is licensed under this Chapter, a PSO licensed under Article 17 of Chapter 131E of the General Statutes, an ambulatory surgical facility licensed under Chapter 131E of the General Statutes, or a hospital licensed under Chapter 122C or Chapter 131E of the General Statutes or that is owned or operated by the State, which civil action results from matters that are the subject of evaluation and review by the committee. A person who was in attendance at a meeting of the committee may be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or its members. However, any confidential patient information acquired, created, or used in good faith by the committee shall remain confidential and shall not be subject to discovery or subpoena in a civil action, and no person who was in attendance at a meeting of the committee shall be required to testify in any civil action as to any evidence or other matters that would reveal confidential patient information. Documents otherwise available as public records within the meaning of G.S. 132‑1 do not lose their status as public records merely because they were presented or considered during proceedings of the committee. A member of the committee may testify in a civil action and may be asked about the person's testimony before the committee or any opinions formed as a result of the committee hearings."
SECTION 5.  G.S. 90‑85.41 reads as rewritten:
"§ 90‑85.41.  Board agreements with special peer review organizations for impaired pharmacy personnel.
(a)	The North Carolina Board of Pharmacy may, under rules adopted by the Board in compliance with Chapter 150B of the General Statutes, enter into agreements with special impaired pharmacy personnel peer review organizations. Peer review activities to be covered by such agreements shall include investigation, review and evaluation of records, reports, complaints, litigation, and other information about the practices and practice patterns of pharmacy personnel licensed or registered by the Board, as such matters may relate to impaired pharmacy personnel. Special impaired pharmacy personnel peer review organizations may include a statewide supervisory committee and various regional and local components or subgroups.
(b)	Agreements authorized under this section shall include provisions for the impaired pharmacy personnel peer review organizations to receive relevant information from the Board and other sources, conduct any investigation, review, and evaluation in an expeditious manner,  make reports of investigations and evaluations to the Board, and to do other related activities for operating and promoting a coordinated and effective peer review process. The agreements shall include provisions assuring basic due process for pharmacy personnel that become involved. The agreements shall not include provisions that prohibit the discovery in a civil action of information or materials obtained from peer review activities.
(c)	The impaired pharmacy personnel peer review organizations that enter into agreements with the Board shall establish and maintain a program for impaired pharmacy personnel licensed or registered by the Board for the purpose of identifying, reviewing, and evaluating the ability of those pharmacists to function as pharmacists, and pharmacy technicians to function as pharmacy technicians, and to provide programs for treatment and rehabilitation. The Board may provide funds for the administration of these impaired pharmacy personnel peer review programs. The Board shall adopt rules to apply to the operation of impaired pharmacy personnel peer review programs, with provisions for: (i) definitions of impairment; (ii) guidelines for program elements; (iii) procedures for receipt and use of information of suspected impairment; (iv) procedures for intervention and referral; (v) arrangements for monitoring treatment, rehabilitation, post treatment support, and performance; and (vi) reports of individual cases to the Board; (vii) periodic reporting of statistical information.
(d)	Upon investigation and review of a pharmacist licensed by the Board, or a pharmacy technician registered with the Board, or upon receipt of a complaint or other information, an impaired pharmacy personnel peer review organization that enters into a peer review agreement with the Board shall report immediately to the Board detailed information about any pharmacist licensed or pharmacy technician registered by the Board, if:
(1)	The pharmacist or pharmacy technician constitutes an imminent danger to the public or himself or herself.
(2)	The pharmacist or pharmacy technician refuses to cooperate with the program, refuses to submit to treatment, or is still impaired after treatment and exhibits professional incompetence.
(3)	It reasonably appears that there are other grounds for disciplinary action.
(e)	Any confidential patient information  acquired, created, or used in good faith by an impaired pharmacy personnel peer review organization pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. Any other nonpublic information acquired, created, or used in good faith by an impaired pharmacy personnel peer review organization pursuant to this section is subject to discovery or subpoena in a civil case. A person participating in good faith in an impaired pharmacy personnel peer review program developed under this section may be required in a civil case to disclose any information (including opinions, recommendations, or evaluations) acquired or developed solely in the course of participating in the program.
(f)	Impaired pharmacy personnel peer review activities conducted in good faith pursuant to any program developed under this section shall not be grounds for civil action under the laws of this State, and the activities are deemed to be State directed and sanctioned and shall constitute "State action" for the purposes of application of antitrust laws."
SECTION 6.  G.S. 131E‑95 reads as rewritten:
"§ 131E‑95.  Medical review committee.
(a)	A member of a duly appointed medical review committee who acts without malice or fraud shall not be subject to liability for damages in any civil action on account of any act, statement or proceeding undertaken, made, or performed within the scope of the functions of the committee.
(b)	The proceedings of a medical review committee, the records and materials it produces and the materials it considers are not public records within the meaning of G.S. 132‑1, " 'Public records' defined",  but are subject to discovery or introduction into evidence in any civil action against a hospital, an ambulatory surgical facility licensed under Chapter 131E of the General Statutes, or a provider of professional health services which results from matters which are the subject of evaluation and review by the committee. A person who was in attendance at a meeting of the committee may be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or its members.  However, any confidential patient information acquired, created, or used in good faith by the medical review committee shall remain confidential and shall not be subject to discovery or subpoena in a civil action, and no person who was in attendance at a meeting of the committee shall be required to testify in any civil action as to any evidence or other matters that would reveal confidential patient information. Documents otherwise available as public records within the meaning of G.S. 132‑1 do not lose their status as public records merely because they were presented or considered during proceedings of the committee. A member of the committee or a person who testifies before the committee may testify in a civil action and may be asked about the person's testimony before the committee or any opinions formed as a result of the committee hearings.
(c)	Information that is confidential and is not subject to discovery or use in civil actions under this section may be released to a professional standards review organization that performs any accreditation or certification including the Joint Commission on Accreditation of Healthcare Organizations. Information released under this subsection shall be limited to that which is reasonably necessary and relevant to the standards review organization's determination to grant or continue accreditation or certification. Information released under this subsection retains its confidentiality and is not subject to discovery or use in any civil actions as provided under this section, and the standards review organization shall keep the information confidential subject to this section."
SECTION 7.  This act becomes effective October 1, 2005, and applies to actions filed on or after that date.