Ask CHPSO

Ask CHPSO: Handling Requests for Disclosure of Patient Safety Work Product

We have recently become aware of requests of federal regulators to review patient safety work product (PSWP.) This is a good opportunity to remind CHPSO members of the parameters governing release of PSWP and additional resources that may be of use.  As you know, documents that a facility has identified as PSWP as part of their overall patient safety evaluation system policies and procedures are considered privileged under the Patient Safety Act.

PSWP, among other things, is not subject to a federal, state, local civil, tribal, criminal, or administrative subpoena or order. More specifically, PSWP is protected for review from Centers for Medicare and Medicaid Services (CMS) surveyors and other state and federal regulators.  Patient safety work product disclosed, even if impermissibly, will continue to be privileged and confidential.

In the event that a state or federal regulator, or other non-authorized entity makes a request to have PSWP disclosed to them, we offer the following for consideration:

  • Consult with your internal legal counsel regarding this request to understand the implications.
  • Remind the requesting entity that disclosure of PSWP is limited. Be prepared to share the facility policies and procedures outlining the patient safety evaluation system and seek to determine an alternative solution
  • Should a state or federal regulator make requests to review PSWP that they are prohibited from receiving under federal law as noted above, we encourage the facility to work with internal or external legal counsel. Escalate the issue to a supervisor for reconsideration and, if necessary, contact the state survey agency, CMS regional office or other applicable entity.

Many federal regulators and hospital staff continue to remain confused about the policies and procedures related to the release of PSWP.  It may be a good time to revisit your policies and procedures, as well as education of staff to ensure all concerned are aware of the federal protections.  If you have questions or wish to review draft policies and procedures, please don’t hesitate to contact us.

Resources

Establish a PSES https://www.chpso.org/establish-pses

PSES Policy Template https://www.chpso.org/post/pses-policy-template

Is our hospital required to document a PSES? https://www.chpso.org/ask-chpso/our-hospital-required-document-pses

Can we use our hospitals’ existing safety event policies for our PSES? https://www.chpso.org/ask-chpso/can-we-use-our-hospitals-existing-safety-event-policies-our-pses

How Long Should We Retain Patient Safety Work Product https://www.chpso.org/ask-chpso/how-long-should-we-retain-patient-safety-work-product

What is the difference between Patient Safety Work Product and 1157? https://www.chpso.org/ask-chpso/what-difference-patient-safety-work-product-pswp-1157

Impact of Recent Cases on Patient Safety Work Product https://www.chpso.org/post/legal-update-impact-recent-cases-patient-safety-work-product

“Ask CHPSO” is a regular column in the bimonthly Patient Safety News and is intended to provide answers to common inquiries. If you have a question, please contact us at (916) 552-2600 or info@chpso.org. All inquirers will remain anonymous.

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