January 22, 2010





SENATE BILL No. 254

_____


DIGEST OF SB 254 (Updated January 20, 2010 12:57 pm - DI 104)



Citations Affected: IC 16-28.

Synopsis: Voluntary audits by health facilities. Provides that a voluntary health facility audit report is privileged and inadmissible as evidence in a civil or administrative action except in specified circumstances. States that a voluntary health facility audit report is admissible in a criminal proceeding.

Effective: July 1, 2010.





Mishler




    January 11, 2010, read first time and referred to Committee on Health and Provider Services.
    January 21, 2010, reported favorably _ Do Pass.






January 22, 2010

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 254



    A BILL FOR AN ACT to amend the Indiana Code concerning health.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 16-28-15; (10)SB0254.1.1. -->     SECTION 1. IC 16-28-15 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]:
     Chapter 15. Voluntary Health Facility Audit Reports
    Sec. 1. This chapter applies to a health facility licensed under IC 16-28-2.
    Sec. 2. As used in this chapter, "health facility audit report" means a voluntary internal evaluation conducted by an owner or operator of a health facility, or an employee or independent contractor on behalf of the owner or operator, concerning:
        (1) a health facility;
        (2) an activity at a health facility that is regulated by IC 16-28-2 or by administrative rules adopted under the authority of IC 16-28-2; or
        (3) a management system related to a health facility or an activity at a health facility;
that is designed to identify and prevent violations of laws, rules,

and regulations and improve compliance with laws.
    Sec. 3. (a) Except as provided in subsection (b), a health facility audit report is privileged and inadmissible as evidence in a civil or administrative legal action, including an enforcement action under IC 16-28-4 or IC 16-28-5.

     (b) A health facility audit report is not considered privileged in any of the following circumstances:
        (1) A criminal investigation or proceeding.
        (2) A civil or administrative hearing if the court determines that the health facility audit report was first issued after January 1, 2010, and either of the following applies:
            (A) The privilege is asserted for a fraudulent purpose.
            (B) The material is subject to the privilege, and the material shows evidence of noncompliance with:
                (i) this title or a rule adopted by the department under this title; or
                (ii) a federal law or regulation;
            and the person claiming the privilege did not promptly initiate and diligently pursue appropriate efforts to achieve compliance with the law, regulation, or rule.
        (3) An owner or operator of a health facility that prepared the health facility audit report or caused the report to be prepared waives the privilege of the health facility audit report.
    (c) The privilege described in this section does not apply to the following:
        (1) Documents, communications data, reports, or other information that must be collected, developed, maintained, reported, or otherwise made available to the state department under this title, a rule or standard adopted under this title, or any other federal, state, or local law, permit, or order.
        (2) Information obtained by observation, sampling, or monitoring by a regulatory agency.
        (3) Information obtained from a source independent of the health facility audit report.
However, the state department may not adopt an administrative rule for the purpose of qualifying the information under this subsection and circumventing the privilege established in this chapter.
    (d) A health facility audit report is admissible in a criminal proceeding. However, if the state department or a prosecuting attorney obtains, reviews, or uses a health facility audit report in

a criminal proceeding, the administrative or civil privilege created by this chapter is not waived or eliminated.
     Sec. 4. (a) A party asserting the privilege described in section 3 of this chapter has the burden of proving:
        (1) that the privilege applies; and
        (2) that the party made an appropriate effort to achieve compliance with a law, regulation, or rule if the evidence indicates that the party was in noncompliance with a law, regulation, or rule.
    (b) A party seeking disclosure of material in a health facility audit report under section 3(b)(2)(A) of this chapter has the burden of proving that the privilege is being asserted for a fraudulent purpose.
    Sec. 5. (a) A party that submits a health facility audit report to the state department waives any privilege that would otherwise be available under this chapter.

     (b) If the state department determines that a health facility audit report or part of the health facility audit report may not be disclosed to the public under IC 5-14-3-4(a), the health facility audit report or part of the report may not be disclosed by a public agency unless access to the health facility audit report is required by:
        (1) state law;
        (2) federal law; or
        (3) a court;
in accordance with IC 5-14-3-4(a).
    Sec. 6. If a court determines that a health facility audit report is admissible under section 3 or 4 of this chapter, the court may compel disclosure of only the parts of the health facility audit report that are relevant to the issues in dispute in the proceeding.
    Sec. 7. The parties to a legal action may at any time stipulate for an order to be entered in court that directs whether specific information contained in a health facility audit report is subject to privilege under this chapter.
    Sec. 8. The privilege described in this chapter does not limit, waive, or abrogate the scope or nature of any other statutory or common law privilege, including the following:
        (1) The work product doctrine.
        (2) The attorney-client privilege.