Pennsylvania Protection & Advocacy, Inc. v. Houstoun

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

10-3-2000

PA Protection & Advocacy, Inc. v. Houstoun

Precedential or Non-Precedential:

Docket 99-1969

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Recommended Citation

"PA Protection & Advocacy, Inc. v. Houstoun" (2000). 2000 Decisions. Paper 211.

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Filed October 3, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1969

PENNSYLVANIA PROTECTION & ADVOCACY, INC.

v.

FEATHER HOUSTOUN, IN HER OFFICIAL CAPACITY

AS SECRETARY OF THE DEPARTMENT OF PUBLIC

WELFARE OF THE COMMONWEALTH

OF PENNSYLVANIA;

CHARLES CURIE, IN HIS OFFICIAL CAPACITY AS

DEPUTY SECRETARY OF THE OFFICE OF MENTAL

HEALTH OF THE DEPARTMENT OF PUBLIC WELFARE

OF THE COMMONWEALTH OF PENNSYLVANIA;

GREGORY M. SMITH, IN HIS OFFICIAL CAPACITY

AS THE SUPERINTENDENT OF ALLENTOWN

STATE HOSPITAL,

Appellants

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 98-cv-04180)

District Court Judge: J. Curtis Joyner

Argued May 23, 2000

Before: ALITO and RENDELL, Circuit Judges, and DUHE,

Senior Circuit Judge.*

_________________________________________________________________

* The Honorable John M. Duhe, Jr., United States Court of Appeals for

the Fifth Circuit, sitting by designation.

(Opinion Filed: October 3, 2000)

James M. Sheehan, General Counsel

John A. Kane, Chief Counsel

Howard Ulan, Senior Asst. Counsel

(argued)

Department of Public Welfare

Office of Legal Counsel

3rd Floor West Health and Welfare

Building

Harrisburg, PA 17120

Attorneys for Appellants

David M. Allen

Schuyler, Roche & Zwirner

130 East Randolph Street

Suite 3800

Chicago, IL 60601

Attorney for Amicus-Appellant

Mark J. Murphy (argued)

Disabilities Law Project

1901 Law & Finance Building

429 Fourth Avenue

Pittsburgh, PA 15219

Ilene W. Shane

Robin Resnick

Disabilities Law Project

801 Arch Street, Suite 610

Philadelphia, PA 19107-2421

Attorneys for Appellee

S. Paul Prior

New Jersey Protection & Advocacy,

Inc.

210 South Broad Street, 3rd Floor

Trenton, NJ 08608

Attorney for Amicus-Appellee

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OPINION OF THE COURT

ALITO, Circuit Judge:

In 1986, Congress enacted the Protection and Advocacy

for Mentally Ill Individuals Act (PAMII), Pub. L. No. 99-319,

100 Stat. 478 (codified at 42 U.S.C. SS 10801-10905). The

Act provides funding for the states to establish independent

organizations (referred to in the Act as "eligible systems")

that monitor and protect the rights of the mentally ill. See

42 U.S.C. S 10803. These organizations are intended to

"investigate incidents of abuse and neglect of individuals

with mental illness" and to take appropriate action to

"protect and advocate the rights of such individuals."

42 U.S.C. S 10801(b). Congress found that funding was

needed for such organizations because the mentally ill were

vulnerable to abuse, injury, and neglect and because the

states' response to these problems was often inadequate.

See 42 U.S.C. S 10801(a).

Pennsylvania Protection & Advocacy, Inc. (PP & A) is a

Pennsylvania non-profit corporation that is qualified as an

"eligible system" under PAMII. Dolores L. attempted suicide

while a mental patient at Allentown (Pennsylvania) State

Hospital and, she died five days later. In accordance with

Allentown State Hospital policy and requirements of the

Joint Commission on the Accreditation of Healthcare

Organizations, the supervisor of the hospital appointed two

peer review committees to evaluate the circumstances of

Dolores L.'s death. These committees produced reports

(peer review reports) intended to identify any mistakes that

were made and that could have been avoided and any

changes that could be made in the hospital's policy or

practices so as to reduce the likelihood of similar events in

the future. PP & A requested Dolores L.'s records, but the

hospital refused to turn over the peer review reports. PP &

A then filed this action against the responsible

Pennsylvania officials (the Commonwealth) to challenge the

refusal to permit access to the peer review reports. The

District Court held that the reports must be disclosed. We

affirm.

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I.

The first issue in this case is whether the peer review

reports fall within the scope of S 10805 of PAMII, which

provides that an organization such as PP & A shall,"in

accordance with section 10806 of this title, have access to

all records of . . . any individual who is a client of the"

advocacy organization. 42 U.S.C. S 10805(a)(4)(A)(emphasis

added). The District Court held that the peer review reports

fall within this language, and we agree.

The peer review reports certainly constitute "records" in

the ordinary sense of the term, and they also fall squarely

within the definition provided in Section 10806 of the Act,

which states:

[T]he term "records" includes reports prepared by any

staff of a facility rendering care and treatment or

reports prepared by an agency charged with

investigating reports of incidents of abuse, neglect, and

injury occurring at such facility that describe incidents

of abuse, neglect, and injury occurring at such facility

and the steps taken to investigate such incidents . . . .

42 U.S.C. S 10806(b)(3)(A).1

The plain language of this definition encompasses the

peer review reports at issue here, since they are clearly

"reports prepared by . . . staff of a facility rendering care

and treatment." Id. Allentown State Hospital is "a facility

rendering care and treatment," and the reports were

prepared by committees composed of members of the

hospital's "staff."2 See J.A. 21a-23a. Therefore, the

_________________________________________________________________

1. We note that the definition of "records" is preceded in the statute by

the language: "As used in this section[i.e., S 10806]." 42 U.S.C.

S 10806(b)(3)(A) (emphasis added). Nevertheless, it is clear that the

definition of "records" in S 10806 controls the types of records to which

PA & A "shall have access" under S 10805 because S 10805 provides that

an eligible system "shall . . . in accordance with section 10806 of this

title, have access to" certain records. 42 U.S.C. S 10805(a)(4) (emphasis

added). In addition, S 10806, which is entitled "Access to records,"

provides that "[a]n eligible system shall have access to the type of

records described in subparagraph (A) [the definition of "records" in

S 10806]." 42 U.S.C. S 10806(b)(3)(B) (emphasis added).

2. The peer review reports may also constitute"reports prepared by an

agency charged with investigating reports of incidents of abuse, neglect,

4

definition of "records" encompasses Dolores L.'s peer review

reports.

The Commonwealth asserts that S 10806(b)(3)(A) requires

the disclosure of "incident reports," but not peer review

reports. Appellant Br. at 7-8 ("Unlike incident reports,

which are descriptive in nature, peer review reports involve

high-order inferences evolving from professional analysis

and evaluation . . . ."). However, the Commonwealth does

not explain how this distinction fits the language of the

statute; nor does the Commonwealth cite authority that

supports its construction. The only authority that the

Commonwealth offers, Atkins v. Pottstown Memorial Medical

Center, 634 A.2d 258 (Pa. Super. Ct. 1993), is inapposite.

In Atkins, the court merely held that incident reports are

not shielded by the Pennsylvania statute that protects peer

review reports from discovery. See id. at 260. Neither Atkins

nor the statute that the court interpreted in Atkins has

anything to do with PAMII.

The Commonwealth also asserts that a peer review report

is not a record "of any individual" because the record

belongs to the hospital. Appellant Br. at 7. However, the

preposition "of " may be used to show connection or

association, as well as ownership, see Random House

Dictionary of the English Language 999 (1967), and it seems

clear that the term is used in the former sense here.

Presumably, many, if not all, of Allentown State Hospital's

other records concerning Dolores L. are just as much its

property as the peer review reports, but there is no doubt

_________________________________________________________________

and injury occurring at such facility that describe[an] incident[ ] of

abuse, neglect, [or] injury occurring at such facility and the steps taken

to investigate such incident[ ]." 42 U.S.C. S 10806(b)(3)(A). Dolores L.'s

peer review reports plainly describe, at a minimum, an "incident[ ] of . .

.

injury," namely, a suicide attempt, "and the steps taken to investigate

such [an] incident[ ]." Id. Moreover, the peer review committees were

indisputably "charged with investigating [a] report[ ] of [an] incident[ ]

of

abuse, neglect, [or] injury occurring at [the] facility." Id. Whether

these

committees composed of hospital staff are "agencies" within the meaning

of the statutory definition is debatable, but we need not decide that

question here, since it is apparent that the peer review reports fall

within

the portion of the statutory definition discussed in text.

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that PAMII was meant to require the hospital to give PP &

A access to those records, as the hospital did. Accordingly,

we hold that a peer review report is a "record[ ] of . . . an[ ]

individual" under PAMII. 42 U.S.C. S 10805(a)(4). Thus,

under this provision, PP & A was entitled to have"access"

to these records. Id.

II.

The Commonwealth argues that, even if the peer review

reports are "records of . . . [an] individual" under PAMII,

PAMII does not require that PP & A be given access to those

records because, according to the Commonwealth,

Pennsylvania restricts the disclosure of peer review reports.

There is nothing in the text of PAMII, however, that

supports the Commonwealth's contention that this federal

statute does not require disclosure of peer review reports

that are protected under state law. Indeed, there is not even

any mention of peer review reports in the legislative history

that accompanied the initial passage of the Act in 1986. See

S. Rep. No. 99-109 (1985), reprinted in 1986 U.S.C.C.A.N.

1361; H.R. Conf. Rep. No. 99-576, reprinted in 1986

U.S.C.C.A.N. 1377.

The Commonwealth relies, however, on subsequent

legislative history and a regulation issued to implement

PAMII. Appropriations for PAMII expired in 1991 and were

re-authorized that year. See Protection and Advocacy for

Mentally Ill Individuals Amendments Act of 1991, Pub. L.

No. 102-173, 105 Stat. 1217 (Amending Act). The House

Report that accompanied the re-authorization stated that

"[i]t is the Committee's intent that the PAMII Act does not

preempt State law regarding disclosure of peer

review/medical review records relating to the proceedings of

such committees." H.R. Rep. No. 102-319, reprinted in 1991

U.S.C.C.A.N. 777, 782.

When Congress re-authorized PAMII, it provided that"the

Secretary [of Health and Human Services] shall promulgate

final regulations to carry out this title." Amending Act, S 9.

Pursuant to this authority, 42 C.F.R. S 51.41(c) (1999)

provides that "[i]nformation and individual records . . .

which shall be available to the P&A system under the Act

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shall include, but not be limited to . . . [r]eports prepared

. . . by or for the facility itself, that describe .. . injury

occurring at the facility . . . [and] [r]eports and records, . . .

prepared or maintained by the facility, in connection with

such reports of incidents." 42 C.F.R. S 51.41(c)(2). The

regulation goes on to provide that "nothing in this section

is intended to preempt State law protecting records

produced by medical care evaluation or peer review

committees." Id. S 51.41(c)(4)

The interpretation of PAMII set out in 42 C.F.R.

S 51.41(c)(4) does not represent a reasonable interpretation

of the statute, and we must therefore reject it. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843-44 (1984). As noted, PAMII requires that

groups such as PP & A be given access to a defined

category of records. Peer review reports either fall within

that definition or they do not. The statutory language

cannot reasonably be construed to encompass identical

peer review reports in some states but not others. If

Congress wished to achieve that result, it needed to enact

different statutory language. It could not achieve that

result, in the face of the statutory language it enacted,

simply by inserting a passage in a committee report. Nor

could that result be achieved by means of a regulation.

We thus hold that PAMII requires that an organization

such a PP & A be given access to peer review reports such

as those at issue here irrespective of state law. PAMII

preempts any state law that gives a healthcare facility the

right to withhold such records. See, e.g., Pacific Gas and

Elec. Co. v. State Energy Resources Conservation and

Development Comm'y, 461 U.S. 190, 204 (1983); Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43

(1963).

III.

Although PAMII would preempt a Pennsylvania law that

prohibited the disclosure of the peer review reports to PP &

A, we note that there is no conflict between state and

federal law here because Pennsylvania law does not forbid

such disclosure. See Pa. Stat. Ann. tit. 63S 425.4 (West

7

1996). Section 425.4 merely provides that "[t]he

proceedings and records of a review committee shall be held

in confidence and shall not be subject to discovery or

introduction into evidence in any civil action ." Id. (emphasis

added) Here, PP & A is seeking the peer review reports in

order to fulfill the advocacy and investigatory purposes of

PAMII with regard to Dolores L.'s death. PP & A is not

seeking to discover the reports or to introduce them into

evidence in a civil action.

Pennsylvania's requirement that a peer review report"be

held in confidence" also does not prevent disclosure of the

reports to PP & A. Id. The statute does not say who is

required to keep the report in confidence, and the statute

has not been interpreted to preclude reports from being

shared with persons outside of a peer review committee.

See Hayes v. Mercy Health Corp., 739 A.2d 114, 117-19

(Pa. 1999) (holding that peer review committee materials

are not privileged from disclosure to a doctor mounting an

internal challenge to a peer review committee's disciplinary

recommendation). There is nothing in the Pennsylvania

statute to support the inference that a peer review report

must be kept "in confidence" from a state's independent

advocacy organization. To the contrary, the inference to be

drawn from the Pennsylvania statute's reference to a"civil

action" is that the statute requires that peer review reports

be kept out of the hands of lawyers involved in civil

litigation. See id. at 118 ("Thus, the intent of the legislature,

as revealed by the plain language of [the Pennsylvania

statute] and confirmed by its legislative history, was to

prevent the disclosure of peer review information to outside

parties seeking to hold professional health care providers

liable for negligence . . . .").

In addition, PAMII imposes a duty of confidentiality on

the advocacy organizations themselves. See 42 U.S.C.

S 10806(a) ("An eligible system which, pursuant to [PAMII],

has access to records which, under . . . State law, are

required to be maintained in a confidential manner by a

provider of mental health services, shall, except as provided

in subsection (b) of this section,3 maintain the

_________________________________________________________________

3. Section 10806(b) provides for disclosure of records to the patient. In

a civil action, the patient would still be precluded, by the same

Pennsylvania statute, from discovering the report or from offering it into

evidence. See Pa. Stat. Ann. tit. 63 S 425.4.

8

confidentiality of such records to the same extent as is

required of the provider of such services." (emphasis

added)); Robbins v. Budke, 739 F. Supp. 1479, 1488

(D.N.M. 1990) (noting that PAMII requires that an advocacy

organization maintain confidentiality of records to the same

degree as the health care provider). Since PAMII requires

advocacy organizations themselves to maintain the

confidentiality of peer review reports, disclosure of peer

review reports to advocacy organizations is not precluded

by the Pennsylvania statute.

IV.

For the reasons explained above, the judgment of the

District Court is affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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