10 U.S.C. § 1102 — Confidentiality of medical quality assur-

Page 1159 TITLE 10—ARMED FORCES § 1102 Subsec. (a). Pub. L. 103–160, § 714(a)(1), substituted ‘‘Capitation or DRG Method’’ for ‘‘DRGs’’ in heading and inserted ‘‘capitation or’’ before ‘‘diagnosis-related groups’’ in text. Subsec. (b). Pub. L. 103–160, § 714(a)(2), substituted ‘‘Capitation or diagnosis-related groups’’ for ‘‘Diag- nosis-related groups’’. Subsec. (c). Pub. L. 103–160, § 714(a)(3), substituted ‘‘may’’ for ‘‘shall’’ in two places in introductory provi- sions and added par. (4). 1988—Subsec. (c). Pub. L. 100–456 struck out ‘‘(1)’’ be- fore ‘‘Such regulations’’ in introductory provisions. Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 101–189, div. A, title VII, § 724, Nov. 29, 1989, 103 Stat. 1478, as amended by Pub. L. 102–190, div. A, title VII, § 719, Dec. 5, 1991, 105 Stat. 1404, provided that: ‘‘The regulations required by section 1101(a) of title 10, United States Code, to establish the use of diagnosis-re- lated groups as the primary criteria for the allocation of resources to health care facilities of the uniformed services shall be prescribed to take effect not later than October 1, 1993, in the case of outpatient treat- ments.’’ Pub. L. 99–661, div. A, title VII, § 701(d)(4), Nov. 14, 1986, 100 Stat. 3898, as amended by Pub. L. 100–180, div. A, title VII, § 724, Dec. 4, 1987, 101 Stat. 1116, provided that: ‘‘The Secretary of Defense shall prescribe regula- tions as required by section 1101(a) of such title (as added by subsection (a)(1)) to take effect— ‘‘(A) in the case of inpatient treatments, not later than October 1, 1988; and ‘‘(B) in the case of outpatient treatments, not later than October 1, 1989.’’ § 1102. Confidentiality of medical quality assur- ance records: qualified immunity for partici- pants (a) CONFIDENTIALITY OF RECORDS.—Medical quality assurance records created by or for the Department of Defense 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 sub- section (c). (b) PROHIBITION ON DISCLOSURE AND TESTI- MONY.—(1) No part of any medical quality assur- ance record described in subsection (a) may be subject to discovery or admitted into evidence in any judicial or administrative proceeding, ex- cept as provided in subsection (c). (2) A person who reviews or creates medical quality assurance records for the Department of Defense or 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, rec- ommendation, evaluation, opinion, or action taken by such person or body in connection with such records except as provided in this section. (c) AUTHORIZED DISCLOSURE AND TESTIMONY.— (1) Subject to paragraph (2), a medical quality assurance record described in subsection (a) may be disclosed, and a person referred to in sub- section (b) may give testimony in connection with such a record, only as follows: (A) To a Federal executive agency or private organization, if such medical quality assur- ance record or testimony is needed by such agency or organization to perform licensing or accreditation functions related to Department of Defense health care facilities or to perform monitoring, required by law, of Department of Defense health care facilities. (B) To an administrative or judicial pro- ceeding commenced by a present or former De- partment of Defense health care provider con- cerning the termination, suspension, or limi- tation of clinical privileges of such health care provider. (C) To a governmental board or agency or to a professional health care society or organiza- tion, 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 profes- sional standards with respect to any health care provider who is or was a member or an employee of the Department of Defense. (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 as- sess the professional qualifications of any health care provider who is or was a member or employee of the Department of Defense and who has applied for or been granted authority or employment to provide health care services in or on behalf of such institution. (E) To an officer, employee, or contractor of the Department of Defense who 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 ap- plicable 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 pro- ceeding commenced by a criminal or civil law enforcement agency or instrumentality re- ferred to in subparagraph (F), but only with respect to the subject of such proceeding. (2) With the exception of the subject of a qual- ity assurance action, the identity of any person receiving health care services from the Depart- ment of Defense or the identity of any other per- son associated with such department for pur- poses of a medical quality assurance program that is disclosed in a medical quality assurance record described in subsection (a) shall be de- leted from that record or document before any disclosure of such record is made outside the De- partment of Defense. Such requirement does not apply to the release of information pursuant to section 552a of title 5. (d) DISCLOSURE FOR CERTAIN PURPOSES.—(1) Nothing in this section shall be construed as au- thorizing or requiring the withholding from any person or entity aggregate statistical informa- tion regarding the results of Department of De- fense medical quality assurance programs. (2) Nothing in this section shall be construed as authority to withhold any medical quality as- surance record from a committee of either House of Congress, any joint committee of Con- gress, or the Comptroller General if such record pertains to any matter within their respective jurisdictions. (e) PROHIBITION ON DISCLOSURE OF RECORD OR TESTIMONY.—A person or entity having posses- Page 1160 TITLE 10—ARMED FORCES § 1103 sion of or access to a record or testimony de- scribed by this section may not disclose the con- tents of such record or testimony in any manner or for any purpose except as provided in this sec- tion. (f) EXEMPTION FROM FREEDOM OF INFORMATION ACT.—Medical quality assurance records de- scribed in subsection (a) may not be made avail- able to any person under section 552 of title 5. (g) LIMITATION ON CIVIL LIABILITY.—A person who participates in or provides information to a person or body that reviews or creates medical quality assurance records described in sub- section (a) 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 profes- sional standards at the time the medical quality assurance program activity took place. (h) APPLICATION TO INFORMATION IN CERTAIN OTHER RECORDS.—Nothing in this section shall be construed as limiting access to the informa- tion 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 qual- ity assurance program. (i) REGULATIONS.—The Secretary of Defense shall prescribe regulations to implement this section. (j) DEFINITIONS.—In this section: (1) The term ‘‘medical quality assurance pro- gram’’ means any peer review activity carried out before, on, or after November 14, 1986 by or for the Department of Defense to assess the quality of medical care, including activities conducted by individuals, military medical or dental treatment facility committees, or other review bodies responsible for quality assur- ance, credentials, infection control, patient care assessment (including treatment proce- dures, blood, drugs, and therapeutics), medical records, health resources management review and identification and prevention of medical or dental incidents and risks. (2) The term ‘‘medical quality assurance record’’ means the proceedings, records, min- utes, and reports that emanate from quality assurance program activities described in paragraph (1) and are produced or compiled by the Department of Defense as part of a med- ical quality assurance program. (3) The term ‘‘health care provider’’ means any military or civilian health care profes- sional who, under regulations of a military de- partment, is granted clinical practice privi- leges to provide health care services in a mili- tary medical or dental treatment facility or who is licensed or certified to perform health care services by a governmental board or agency or professional health care society or organization. (4) The term ‘‘peer review’’ means any as- sessment of the quality of medical care carried out by a health care professional, including any such assessment of professional perform- ance, any patient safety program root cause analysis or report, or any similar activity de- scribed in regulations prescribed by the Sec- retary under subsection (i). (k) PENALTY.—Any person who willfully dis- closes a medical quality assurance record other than as provided in this section, knowing that such record is a medical quality assurance record, shall be fined not more than $3,000 in the case of a first offense and not more than $20,000 in the case of a subsequent offense. (Added Pub. L. 99–661, div. A, title VII, § 705(a)[(1)], Nov. 14, 1986, 100 Stat. 3902; amended Pub. L. 100–180, div. A, title XII, § 1231(5), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 101–189, div. A, title VI, § 653(f), Nov. 29, 1989, 103 Stat. 1463; Pub. L. 108–375, div. A, title X, § 1084(c)(2), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 112–81, div. A, title VII, § 714(a), Dec. 31, 2011, 125 Stat. 1476.) Editorial Notes AMENDMENTS 2011—Subsec. (j)(1). Pub. L. 112–81, § 714(a)(1), sub- stituted ‘‘any peer review activity carried out’’ for ‘‘any activity carried out’’. Subsec. (j)(4). Pub. L. 112–81, § 714(a)(2), added par. (4). 2004—Subsec. (d)(2). Pub. L. 108–375 substituted ‘‘Comptroller General’’ for ‘‘General Accounting Of- fice’’. 1989—Subsec. (j)(1). Pub. L. 101–189 substituted ‘‘No- vember 14, 1986’’ for ‘‘the date of the enactment of this section’’. 1987—Subsec. (c)(2). Pub. L. 100–180 struck out ‘‘, United States Code’’ after ‘‘title 5’’ in second sen- tence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 112–81, div. A, title VII, § 714(b), Dec. 31, 2011, 125 Stat. 1477, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall take ef- fect on January 1, 2012.’’ EFFECTIVE DATE Pub. L. 99–661, div. A, title VII, § 705(b), Nov. 14, 1986, 100 Stat. 3904, provided that: ‘‘Section 1102 of title 10, United States Code, as added by subsection (a), shall apply to all records created before, on, or after the date of the enactment of this Act [Nov. 14, 1986] by or for the Department of Defense as part of a medical quality as- surance program.’’ § 1103. Contracts for medical and dental care: State and local preemption (a) OCCURRENCE OF PREEMPTION.—A law or reg- ulation of a State or local government relating to health insurance, prepaid health plans, or other health care delivery or financing methods shall not apply to any contract entered into pur- suant to this chapter by the Secretary of De- fense or the administering Secretaries to the ex- tent that the Secretary of Defense or the admin- istering Secretaries determine that— (1) the State or local law or regulation is in- consistent with a specific provision of the con- tract or a regulation promulgated by the Sec- retary of Defense or the administering Secre- taries pursuant to this chapter; or (2) the preemption of the State or local law or regulation is necessary to implement or ad- minister the provisions of the contract or to achieve any other important Federal interest. (b) EFFECT OF PREEMPTION.—In the case of the preemption under subsection (a) of a State or