Colorado Medical Society

WHEREAS, the Constitution & Bylaws Committee reviewed RES-5-A, AM '04, and

WHEREAS, the Committee recommended that RES-5-A, AM '04, be not adopted, and

WHEREAS, the Committee recommended that Chapter VII should be further reviewed by legal counsel, and

WHEREAS, such review was conducted and Chapter VII was rewritten to comply with state and federal laws regarding peer review as well as streamline the process, therefore be it

RESOLVED, that Chapter VII of the Bylaws be amended by replacing the existing Chapter VII with the following:

CHAPTER VII – Professional Review / Judicial Department

Section 1. Objective:

Professional peer review seeks to further quality health care. To that end, CMS establishes this review process to permit review of grievances concerning CMS Members subject to the protections of Colorado’s Professional Review Act, C.R.S. §12-36.5-101, et. seq.

Section 2. Jurisdiction:

Professional review within CMS shall be limited to the qualifications, competence, or conduct of Members which affects or may affect adversely the health of patients, or which affects or may adversely affect membership in CMS or its component societies. Review shall not be conducted concerning a non-member, nor shall review concern any Member’s:

- Association or lack of association with a professional organization;

- Fees, advertising, or competitive acts;

- Association with, supervision of, delegation to, support for, training of, or participation in a private group practice with a particular class of health care practitioners;

- Participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service or other basis; or

- Conduct unrelated to qualifications, competence, or professional conduct.

Section 3. Review Committees and Participation:

Review committees shall undertake review in good faith and are authorized to take action or make recommendations:

- In the reasonable belief that such action or recommendation was in furtherance of quality health care;

- After a reasonable effort to obtain the facts;

- After notice and hearing procedures, which are reasonable under the circumstances; and

- In the reasonable belief that such action or recommendation was warranted by the facts.

A. CMS, Component, and Ad Hoc Grievance Review Committees (GRCs)

1. Authority. The CMS Board of Directors authorizes the CMS Grievance Review Committee, all Component Grievance Review Committees, and Ad Hoc Grievance Review Committees established by the CMS or Component GRCs, individually and collectively, to carry out professional review in substantial compliance with these bylaws.

2. Composition. GRCs shall consist of at least three (3) Members and are subject to composition, eligibility, and terms of office rules as follows:

a. CMS GRC: according to Chapter VI, §13 of these Bylaws.

b. Component GRC: as defined by each Component Society.

c. Ad Hoc GRC: as defined by the CMS or Component GRC establishing the Ad Hoc GRC.

B. Unified Grievance Review Committee (Unified GRC)

1. Authority. The Board of Directors authorizes the Unified GRC and its Members, individually and collectively, to conduct hearings and issue recommendations for action to the Council on Ethical and Judicial Affairs in substantial compliance with these bylaws.

2. Composition. The Unified GRC shall consist of the chair of the CMS GRC and the chairs of the Component GRCs.

C. Council on Ethical and Judicial Affairs (Judicial Council)

1. Authority. The Board of Directors authorizes the Judicial Council and its Members, individually and collectively, to conduct appeals from findings and recommendations of the Unified GRC and take final action in substantial compliance with these bylaws. The Judicial Council shall be the duly authorized governing board for the Colorado Medical Society and its Component Societies.

Between meetings of the full council, the Council’s Executive Committee is empowered to act on behalf of the full Council in matters of an urgent, non-controversial nature. Such actions shall be subject to confirmation, modification, or rescission by the full Council at its next meeting.

2. Composition: The Judicial Council shall be composed of Judicial Councilors, who shall be elected to represent the districts, as provided for Chapter X, §1 - 2 of these Bylaws. Each Judicial Councilor shall have been a member of the District elected to represent for at least one year preceding the election. Permanent relocation from that District shall automatically create a vacancy in the office.

The Chair, Vice-Chair, and any third council member shall constitute the "Executive Committee of the Judicial Council."

D. Disqualification from Participation

If any committee or council Member is in direct economic competition with the Member under review, has been involved in the circumstances underlying the review, has a close relationship with the complainant or affected Member, or otherwise has an interest in the outcome of the review, or has any other conflict, such Member may not participate on a review committee for such review.

Any person who participates in any investigation or lower committee decision is disqualified as a member of the Unified GRC and Judicial Council concerning the same review; however, such person may be a witness.

Section 4. Confidentiality

Professional review is confidential. Disclosure of information obtained through professional review is not permitted except as provided for in these Bylaws.

Disclosure of review information to the CMS Executive Office, Credentials Committee, or a Component Society shall not violate confidentiality.

Records of the review committees are confidential and, with limited exceptions, are not subject to subpoena or discovery, are not admissible in any civil suit brought against a physician who is the subject of such records. Thus, all records, notes, minutes, recommendations, reports and proceedings of the review committees are confidential and are not open to the public. The complainant may not be provided any records of the review.

Section 5. Review Process:

A. Requests for Review and Initial Screening

1. Grievances/Requests for Review. Grievances must be in writing, submitted to or initiated by the CMS GRC or a Component GRC, and describe specific conduct supporting the grievance. Any person may submit a grievance and request review.

2. Screening and Acceptance for Review. The GRC shall evaluate the nature of the grievance to ensure jurisdiction. As part of this process, the GRC may, but is not required to interview the affected Member.

The GRC may decline to initiate review for any reason and will attempt to decline or accept a grievance for review within thirty (30) days of receipt.

Grievances sent on behalf of others should only be accepted for children or incompetent adults. Grievances originating in a hospital setting may be referred to a hospital peer review committee. Grievances pending before other entities may be declined as duplicative.

3. Deferral. If additional time or information is needed to decide whether to conduct a review, the GRC may defer action and establish a time for reconsideration.

4. Notification. If a grievance is not accepted for review, a letter to the complainant, copied to the affected Member, shall be sent notifying the complainant of the lack of jurisdiction or other reason for declining review.

If the grievance is accepted for review, a letter shall be sent notifying the complainant, and copied to the affected Member. Such letter should explain the confidential nature of the process. Such letter may also contain a standard form authorizing release of relevant patient records. Failure of a complainant to promptly return such release is sufficient cause to terminate the review. The notification to the affected member should also contain a copy of this Chapter VII of the Bylaws.

B. Investigation

Grievances accepted for review shall be investigated, either by the GRC itself or through an Ad Hoc GRC. Third parties and committee designees may be used in the investigation process.

1. Effort to Obtain Facts. The investigating GRC shall make a reasonable effort to obtain the facts, which shall include soliciting a written response from the affected Member. Such solicitation shall include a copy of the written grievance and appropriate releases.

The GRC’s effort to obtain the facts may also, but need not, include:

a. Interviewing the subject Member

b. Interviewing others

c. Evaluating records

d. Researching information

e. Obtaining outside evaluations

Each investigation will vary according to the type of complaint. Investigations may include, without limitation, such issues as allegations of substandard care, sexual misconduct, alteration of patient records, breach of confidentiality, discourteous service, withholding medical records, or impairment.

The GRC may impose reasonable deadlines for responses to requests for information from a complainant or the affected Member. Failure or refusal of a Member to cooperate with review proceedings is grounds for adverse action. Failure or refusal of a complainant to cooperate with review proceedings is grounds for terminating the review.

2. Report/Standards. The GRC shall make a report of its investigative findings based on the following standards:

a. AMA Principles of Medical Ethics;

b. Established CMS policy, and

c. Board of Medical Examiners' grounds for disciplinary action.

With respect to grievances alleging provision of care failing to meet generally accepted standards, the relevant inquiry is whether such care fell within the range of acceptable care that may be provided by a reasonably careful physician, having the knowledge and skill of physicians practicing in the same field of practice at the same time, under the same or similar circumstances.

3. Action. After making a reasonable effort to obtain the facts and upon reasonable belief that action is warranted by the facts and furthers the quality of health care, the GRC may:

a. Terminate further review and notify the affected Member of the committee's decision.

b. Issue a letter of concern, admonishment, or reprimand to the Member.

c. Recommend imposing conditions on, suspending, or revoking Society membership.

C. Hearings

1. Adverse Action/ Right to a Hearing. If the findings of any investigation result in a recommendation for adverse action including that Society membership be reduced, restricted, suspended, revoked or denied, the affected Member shall be entitled to a hearing before the Unified GRC.

Certain actions are not considered adverse and an affected Member is not entitled to a hearing or appeal including, without limitation, letters of concern, admonishment, or reprimand.

2. Notice of Adverse Action/Recommendation: When action is taken or a recommendation made that entitles a Member to a hearing, the Member shall promptly be given notice, which advises the Member of the following:

a. Action or recommendation and the underlying reasons;

b. Right to make a written request for a hearing within thirty (30) days of receipt of the notice;

c. Failure to submit a written request for a hearing within the specified time period constitutes a waiver of the right to a hearing and appeal in the matter and any other rights to which he/she may otherwise have been entitled;

d. Rights at a hearing as outlined in §4(e) below; and

e. After receipt of a timely request for a hearing, the Member will be notified of the date, time and place of the hearing.

3. Waiver. In the event a hearing is not requested in writing within the time set forth, the Member is deemed to have waived the right to such hearing and appellate review and to have accepted the action involved. Such action shall become effective immediately upon final approval by the Judicial Council.

4. Notice of Hearing and Statement: The Unified GRC shall schedule hearings and give the affected Member at least forty-five (45) days advance written notice of the hearing time, place, and date. The notice shall also include:

a. A description of the proposed action and underlying reasons;

b. A list of anticipated witnesses;

c. A statement of the standards allegedly violated and a concise statement of relevant facts underlying the recommendation or action;

d. A list of documents supporting the recommendation or action;

e. A list of hearing rights including, without limitation, the right to:

- Be present

- Be represented by counsel

- Offer evidence

- Have a record made of the proceedings, copies of which may be obtained by the Member upon payment of any reasonable charges associated with preparation

- Call, examine, and cross-examine witnesses

- Present relevant evidence as determined by the hearing officer

- Submit a written statement at the close of the hearing

- Receive the written recommendation of the Unified GRC, including a statement of the basis for recommendations

f. The right to a hearing and subsequent appeal is forfeited if the Member fails, without good cause, to appear.

This statement, the list of supporting documents, and other information may be amended or added to at any time, even during the hearing so long as the additional material is relevant, as determined by the hearing officer.

5. Extension. Either the GRC or the Member may request up to a thirty (30) day delay in commencement of the hearing. The Uniform GRC may grant such delay in its discretion and re-schedule the hearing as soon as practicable after any approved delay.

6. Hearing Procedure.

a. Hearings should be held as soon as possible after the required notification period. Convenience of the parties and witnesses should be considered but undue delays should not be permitted.

b. A hearing officer should be chosen from the Unified Grievance Review Committee to preside over the hearing.

c. The GRC or its representative should first offer evidence, followed by the affected Member, followed by a rebuttal. Such rebuttal may respond to the Member’s evidence, but may not introduce evidence on issues not previously raised by the GRC or Member.

d. At the hearing the Member and the GRC have the right

to:

- Be present

- Be represented by counsel or any other person

- Offer evidence

- Have a record made of the proceedings, copies of which may be obtained by the Member upon payment of any reasonable charges associated with preparation

- Call, examine, and cross-examine witnesses

- Present relevant evidence as determined by the hearing officer (whether or not it complies with technical rules of evidence)

- Submit a written statement at the close of the hearing

- Receive the written recommendation of the Unified GRC, including a statement of the basis for recommendations

e. The complainant is not entitled to attend the hearing except as needed to testify. Nor shall the complainant be provided any other records of the review.

7. Decision. Within thirty (30) days after the hearing, the Unified GRC should issue a written decision with findings and recommendations. Such decision shall indicate whether the allegations are established by a preponderance of the evidence and the basis for the finding. Such recommendations may include any, or a combination, of the following:

a. That no action be taken and review terminated

b. Issuing a letter of concern, admonishment, or reprimand to the Member

c. Recommend imposing conditions on Society membership including, without limitation:

- Participation in an Impaired Physician Program

- Completing a specific program of remedial education

d. Suspending, or revoking Society membership.

A copy of the written Decision and Recommendations shall be provided to the affected Member and the GRC.

D. Appeal / Final Action

The Judicial Council shall consider any proper appeal of a Unified GRC action or recommendation and take final action; or if such appeal has been waived, take final action.

1. Right to Appeal. The affected Member and the GRC shall have the right to file a written appeal of the findings and recommendations of the Unified GRC Decision within forty five (45) days after such Decision was issued, stating the basis for such appeal.

Appeal is limited to the issues raised in the hearing. The Judicial Council shall not consider arguments and evidence that were not presented at the hearing unless there is good reason for the failure to present them earlier.

2. Waiver of Appeal. In the event a written appeal is not submitted within the time set forth, the parties are deemed to have waived the right to such appellate review and to have accepted the findings and recommendation outlined in the Unified GRC Decision. Such action shall become effective immediately upon final approval by the Judicial Council.

3. Appellate Procedure.

a. Oral argument shall be set by the Judicial Council as soon as possible after receipt of the written appeal.

b. The appealing party shall present its argument first, followed by the opposing party, followed by a rebuttal. Such rebuttal may respond to the opposing party’s argument, but may not introduce issues not previously raised.

c. On appeal, the Member and the GRC have the right to:

- Appear before the Judicial Council

- Be represented by counsel or any other person

- Offer oral argument on the record

- Submit written statements.

4. Standard.

The Judicial Council acts in good faith when it relies upon the findings and recommendations of grievance review committees, unless the Council or a Member has knowledge concerning the review in question, which would cause reliance to be unwarranted.

5. Final Action. The Judicial Council shall issue a written opinion stating and explaining the basis for its decision to accept, reject or modify the Unified GRC Decision.

The decision need not be unanimous, and a Member who disagrees with the majority may draft a minority opinion to accompany the majority's binding opinion.

Final action by the Judicial Council may include:

a. Determination that no action be taken

b. Issuing a letter of concern, admonishment, or reprimand

c. Impose conditions on Society membership including, without limitation:

- Participation in an Impaired Physician Program

- Completing a specific program of remedial education

d. Suspending, or revoking Society membership.

A copy of the Final Action shall be provided to the affected Member, the GRC, and the Unified GRC.

E. Reporting

1. Board of Medical Examiners. The final action of the Judicial Council shall be reported to the Colorado Board of Medical Examiners. Additionally, the following adverse review actions must be reported to the Board within twenty (20) days after such adverse action is taken:

a. Review action adversely affecting membership in the Colorado Medical Society or in one of its component societies;

b. Surrender of membership privileges:

- While the Member is under investigation by the CMS or one of its Component Societies, relating to qualifications, competence or professional conduct, or

- In return for not conducting such an investigation or proceeding.

Such report must include the Member’s name, the reasons for the action, and other information required by the Board. Such report is subject to an ongoing duty to supplement.

The Board may request, and is entitled to subpoena, a complete record of all review proceedings, including, but not limited to, the findings, recommendations and actions taken.

2. National Practitioner Data Bank. The Colorado Board of Medical Examiners is required to report to any known instances of a health care entity's failure to report to the NPDB.

3. Sanctions. CMS is subject to sanction by the Department of Health and Human Services for failure to properly report.

F. Record Retention

Complete files shall be retained by the Society in accordance with the following:

1. If the grievance is rejected or referred to another entity at the screening stage, the society shall retain the file for 90 days.

2. If, after investigation, the GRC determines that no action is warranted, the file shall be retained for 90 days.

3. If the GRC issues a letter of concern, admonition or reprimand, such letter shall be maintained for ten (10) years, the remainder of the file may be disposed within ninety (90) days.

4. If, after a hearing before the Unified GRC, the committee recommends that no disciplinary action be taken and that no sanctions be imposed against the physician, the file shall be retained for three (3) years.

5. If an appeal is conducted before the Judicial Council and the Council determines that the Unified GRC's recommendation for disciplinary action or sanctions be rejected and that no action be taken against the physician, the file shall be retained for three (3) years.

6. If a complaint proceeds through appeal to the Judicial Council, resulting in an adverse finding, the file shall be retained for ten years.

FISCAL IMPACT: None