42 U.S.C. § 11151 — Definitions

Page 8119 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11151 1 So in original. Probably should be followed by another closing parenthesis. (b) Confidentiality of information (1) In general Information reported under this subchapter is considered confidential and shall not be dis- closed (other than to the physician or practi- tioner involved) except with respect to profes- sional review activity, as necessary to carry out subsections (b) and (c) of section 11135 of this title (as specified in regulations by the Secretary), or in accordance with regulations of the Secretary promulgated pursuant to sub- section (a). Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure. Information reported under this subchapter that is in a form that does not permit the identification of any particular health care en- tity, physician, other health care practitioner, or patient shall not be considered confidential. The Secretary (or the agency designated under section 11134(b) of this title), on application by any person, shall prepare such information in such form and shall disclose such information in such form. (2) Penalty for violations Any person who violates paragraph (1) shall be subject to a civil money penalty of not more than $10,000 for each such violation in- volved. Such penalty shall be imposed and col- lected in the same manner as civil money pen- alties under subsection (a) of section 1320a–7a of this title are imposed and collected under that section. (3) Use of information Subject to paragraph (1), information pro- vided under section 11135 of this title and sub- section (a) is intended to be used solely with respect to activities in the furtherance of the quality of health care. (4) Fees The Secretary may establish or approve rea- sonable fees for the disclosure of information under this section or section 11136 of this title. The amount of such a fee may not exceed the costs of processing the requests for disclosure and of providing such information. Such fees shall be available to the Secretary (or, in the Secretary’s discretion, to the agency des- ignated under section 11134(b) of this title) to cover such costs. (c) Relief from liability for reporting No person or entity (including the agency des- ignated under section 11134(b) of this title) shall be held liable in any civil action with respect to any report made under this subchapter (includ- ing information provided under subsection (a) 1 without knowledge of the falsity of the informa- tion contained in the report. (d) Interpretation of information In interpreting information reported under this subchapter, a payment in settlement of a medical malpractice action or claim shall not be construed as creating a presumption that med- ical malpractice has occurred. (Pub. L. 99–660, title IV, § 427, Nov. 14, 1986, 100 Stat. 3791; Pub. L. 100–177, title IV, § 402(a), (b), Dec. 1, 1987, 101 Stat. 1007.) Editorial Notes AMENDMENTS 1987—Subsec. (b)(1). Pub. L. 100–177, § 402(a)(1), sub- stituted ‘‘as necessary to carry out subsections (b) and (c) of section 11135 of this title (as specified in regula- tions by the Secretary)’’ for ‘‘with respect to medical malpractice actions’’ and inserted at end ‘‘Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practi- tioner, or patient shall not be considered confidential. The Secretary (or the agency designated under section 11134(b) of this title), on application by any person, shall prepare such information in such form and shall disclose such information in such form.’’ Subsec. (b)(4). Pub. L. 100–177, § 402(b), added par. (4). Subsec. (c). Pub. L. 100–177, § 402(a)(2), inserted ‘‘(in- cluding the agency designated under section 11134(b) of this title)’’ after ‘‘entity’’ and ‘‘(including information provided under subsection (a)’’ after ‘‘subchapter’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Pub. L. 100–177, title IV, § 402(d), formerly § 402(c), Dec. 1, 1987, 101 Stat. 1007, as renumbered and amended by Pub. L. 101–239, title VI, § 6103(e)(6), Dec. 19, 1989, 103 Stat. 2208, provided that: ‘‘(1) IN GENERAL.—The amendments made by sub- sections (a) and (c) [amending this section and sections 1111 and 1115 of this title] shall become effective on No- vember 14, 1986. ‘‘(2) FEES.—The amendment made by subsection (b) [amending this section] shall become effective on the date of enactment of this Act [Dec. 1, 1987].’’ SUBCHAPTER III—DEFINITIONS AND REPORTS § 11151. Definitions In this chapter: (1) The term ‘‘adversely affecting’’ includes reducing, restricting, suspending, revoking, denying, or failing to renew clinical privileges or membership in a health care entity. (2) The term ‘‘Board of Medical Examiners’’ includes a body comparable to such a Board (as determined by the State) with responsi- bility for the licensing of physicians and also includes a subdivision of such a Board or body. (3) The term ‘‘clinical privileges’’ includes privileges, membership on the medical staff, and the other circumstances pertaining to the furnishing of medical care under which a phy- sician or other licensed health care practi- tioner is permitted to furnish such care by a health care entity. (4)(A) The term ‘‘health care entity’’ means— (i) a hospital that is licensed to provide health care services by the State in which it is located, (ii) an entity (including a health mainte- nance organization or group medical prac- tice) that provides health care services and that follows a formal peer review process for the purpose of furthering quality health care (as determined under regulations of the Sec- retary), and Page 8120 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11152 (iii) subject to subparagraph (B), a profes- sional society (or committee thereof) of phy- sicians or other licensed health care practi- tioners that follows a formal peer review process for the purpose of furthering quality health care (as determined under regulations of the Secretary). (B) The term ‘‘health care entity’’ does not include a professional society (or committee thereof) if, within the previous 5 years, the so- ciety has been found by the Federal Trade Commission or any court to have engaged in any anti-competitive practice which had the effect of restricting the practice of licensed health care practitioners. (5) The term ‘‘hospital’’ means an entity de- scribed in paragraphs (1) and (7) of section 1395x(e) of this title. (6) The terms ‘‘licensed health care practi- tioner’’ and ‘‘practitioner’’ mean, with respect to a State, an individual (other than a physi- cian) who is licensed or otherwise authorized by the State to provide health care services. (7) The term ‘‘medical malpractice action or claim’’ means a written claim or demand for payment based on a health care provider’s fur- nishing (or failure to furnish) health care serv- ices, and includes the filing of a cause of ac- tion, based on the law of tort, brought in any court of any State or the United States seek- ing monetary damages. (8) The term ‘‘physician’’ means a doctor of medicine or osteopathy or a doctor of dental surgery or medical dentistry legally author- ized to practice medicine and surgery or den- tistry by a State (or any individual who, with- out authority holds himself or herself out to be so authorized). (9) The term ‘‘professional review action’’ means an action or recommendation of a pro- fessional review body which is taken or made in the conduct of professional review activity, which is based on the competence or profes- sional conduct of an individual physician (which conduct affects or could affect ad- versely the health or welfare of a patient or patients), and which affects (or may affect) ad- versely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a pro- fessional review body not to take an action or make a recommendation described in the pre- vious sentence and also includes professional review activities relating to a professional re- view action. In this chapter, an action is not considered to be based on the competence or professional conduct of a physician if the ac- tion is primarily based on— (A) the physician’s association, or lack of association, with a professional society or association, (B) the physician’s fees or the physician’s advertising or engaging in other competitive acts intended to solicit or retain business, (C) the physician’s participation in prepaid group health plans, salaried employment, or any other manner of delivering health serv- ices whether on a fee-for-service or other basis, (D) a physician’s association with, super- vision of, delegation of authority to, support for, training of, or participation in a private group practice with, a member or members of a particular class of health care practi- tioner or professional, or (E) any other matter that does not relate to the competence or professional conduct of a physician. (10) The term ‘‘professional review activity’’ means an activity of a health care entity with respect to an individual physician— (A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity, (B) to determine the scope or conditions of such privileges or membership, or (C) to change or modify such privileges or membership. (11) The term ‘‘professional review body’’ means a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the gov- erning body in a professional review activity. (12) The term ‘‘Secretary’’ means the Sec- retary of Health and Human Services. (13) The term ‘‘State’’ means the 50 States, the District of Columbia, Puerto Rico, the Vir- gin Islands, Guam, American Samoa, and the Northern Mariana Islands. (14) The term ‘‘State licensing board’’ means, with respect to a physician or health care provider in a State, the agency of the State which is primarily responsible for the li- censing of the physician or provider to furnish health care services. (Pub. L. 99–660, title IV, § 431, Nov. 14, 1986, 100 Stat. 3792.) § 11152. Reports and memoranda of under- standing (a) Annual reports to Congress The Secretary shall report to Congress, annu- ally during the three years after November 14, 1986, on the implementation of this chapter. (b) Memoranda of understanding The Secretary of Health and Human Services shall seek to enter into memoranda of under- standing with the Secretary of Defense and the Administrator of Veterans’ Affairs to apply the provisions of subchapter II of this chapter to hospitals and other facilities and health care providers under the jurisdiction of the Secretary or Administrator, respectively. The Secretary shall report to Congress, not later than two years after November 14, 1986, on any such memoranda and on the cooperation among such officials in establishing such memoranda. (c) Memorandum of understanding with Drug Enforcement Administration The Secretary of Health and Human Services shall seek to enter into a memorandum of un- derstanding with the Administrator of Drug En- forcement relating to providing for the report- ing by the Administrator to the Secretary of in- formation respecting physicians and other prac- titioners whose registration to dispense con- trolled substances has been suspended or re-