                                                                                                                           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Precedential or Non-Precedential: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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"PA Protection & Advocacy, Inc. v. Houstoun" (2000). 2000 Decisions. Paper 211.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/211


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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

                                 2
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.

                               3
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.

                               5
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

                               6
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

                               9
