Legal Discovery and QAPI: A Tale of Two Risks

September 12, 2017 | Aging Services Risk, Quality, & Safety Guidance

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A shift from quality assessment and assurance (QAA) to quality assurance and performance improvement (QAPI) is becoming a Centers for Medicare and Medicaid Services (CMS) regulatory reality for providers in the aging services continuum, affecting both home health and nursing centers. This new regulatory focus calls for a renewed discussion about how aging services providers may appropriately invoke privilege from discovery to protect quality improvement “work product" from disclosure in litigation. Why? Because the Federal Nursing Home Reform Act and its implementing regulations for QAPI programs for nursing facilities provide protection from disclosure as follows: “A state or the Secretary may not require disclosure of the records of a QAPI committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this section" (42 USC § 1396rbB; 42 CFR 483.75o).

The implementation of QAPI involves tools and methods through which providers identify, examine, assess, and candidly evaluate adverse events and quality of care, with the goal of taking action to mitigate harm and improve systems and processes. These activities are grounded on the premise that internal investigation and critical evaluation are essential processes for mitigating harm and improving quality of care.

The conduct of litigation involves a procedural tool referred to as “discovery" through which parties to a lawsuit may seek to “discover" information and material that are not privileged and that are relevant to the subject matter of the litigation. Discovery is grounded on the premise that litigation is a truth-seeking process that culminates in dispute resolution. Nonprivileged information discovered in litigation is not automatically “admissible" as evidence in a court of law. Judges apply a jurisdiction's rules of evidence to determine what is admissible and for what purposes jurors may consider the evidence.

The processes and goals of QAPI and litigation discovery create a juxtaposition of two very real but seemingly opposing provider risks: harm to the organization if “problems" are discovered and QAPI information is used against the provider in litigation, versus harm to the organization from failure to act to prevent reoccurring incidents with common root causes. One result of these seemingly competing risks is that a fear of the first can inhibit practices that help to mitigate the second. Failure to operationalize QAPI practices also presents the risks associated with regulatory noncompliance for aging services providers participating in the Medicare and Medicaid programs. Effective management and mitigation of these risks are important for the persons served by provider organizations as well as for the organizations themselves.

American jurisprudence attempts to reconcile these important competing social interests by providing certain legal privileges from discovery. A privilege that protects quality improvement “work product" from discovery, for example, encourages providers to conduct thorough investigations, perform candid analyses,...

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