New PSWP narrows providers’ definition of privileged information
Recent guidance issued by the U.S. Department of Health and Human Services (HHS) seeking to clarify patient safety work product (PSWP) privilege under the Patient Safety Act has instead stoked conflicting opinions among organizations representing healthcare providers as to how the provision should be interpreted.
In May, HHS published guidance outlining which information a provider reports to a Patient Safety Organization (PSO) falls under the Act’s federal privilege protections, which are designed to shield providers from legal action. While HHS said most providers engage with PSOs to further patient safety, some could be misusing the Act to circumvent federal or state regulatory reporting obligations.
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In some instances, providers may be maintaining required records only in a patient safety evaluation system (PSES) and then refusing to disclose the records, asserting the records in their PSES fulfill the applicable regulatory requirements while maintaining that the records are privileged and confidential PSWP.
Others may be developing records to meet obligations outside of the PSES, placing a duplicate copy of the required record in the PSES, and then destroying the original and refusing to disclose the remaining copy of the information, asserting the copy is confidential and privileged.
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“I think essentially what HHS tried to do is clarify that not every document submitted to a PSO is automatically protected,” says Julie Chicoine, JD, general counsel for the Texas Hospital Association. “In my opinion, HHS reiterated what was already established in the law.”