
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC1320c-9]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                       CHAPTER 7--SOCIAL SECURITY
 
   SUBCHAPTER XI--GENERAL PROVISIONS, PEER REVIEW, AND ADMINISTRATIVE 
                             SIMPLIFICATION
 
 Part B--Peer Review of Utilization and Quality of Health Care Services
 
Sec. 1320c-9. Prohibition against disclosure of information


(a) Freedom of Information Act inapplicable; exceptions to nondisclosure

    An organization, in carrying out its functions under a contract 
entered into under this part, shall not be a Federal agency for purposes 
of the provisions of section 552 of title 5 (commonly referred to as the 
Freedom of Information Act). Any data or information acquired by any 
such organization in the exercise of its duties and functions shall be 
held in confidence and shall not be disclosed to any person except--
        (1) to the extent that may be necessary to carry out the 
    purposes of this part,
        (2) in such cases and under such circumstances as the Secretary 
    shall by regulations provide to assure adequate protection of the 
    rights and interests of patients, health care practitioners, or 
    providers of health care, or
        (3) in accordance with subsection (b) of this section.

(b) Disclosure of information permitted

    An organization having a contract with the Secretary under this part 
shall provide in accordance with procedures and safeguards established 
by the Secretary, data and information--
        (1) which may identify specific providers or practitioners as 
    may be necessary--
            (A) to assist Federal and State agencies recognized by the 
        Secretary as having responsibility for identifying and 
        investigating cases or patterns of fraud or abuse, which data 
        and information shall be provided by the peer review 
        organization to any such agency at the request of such agency 
        relating to a specific case or pattern;
            (B) to assist appropriate Federal and State agencies 
        recognized by the Secretary as having responsibility for 
        identifying cases or patterns involving risks to the public 
        health, which data and information shall be provided by the peer 
        review organization to any such agency--
                (i) at the discretion of the peer review organization, 
            at the request of such agency relating to a specific case or 
            pattern with respect to which such agency has made a 
            finding, or has a reasonable belief, that there may be a 
            substantial risk to the public health, or
                (ii) upon a finding by, or the reasonable belief of, the 
            peer review organization that there may be a substantial 
            risk to the public health;

            (C) to assist appropriate State agencies recognized by the 
        Secretary as having responsibility for licensing or 
        certification of providers or practitioners or to assist 
        national accreditation bodies acting pursuant to section 1395bb 
        of this title in accrediting providers for purposes of meeting 
        the conditions described in subchapter XVIII of this chapter, 
        which data and information shall be provided by the peer review 
        organization to any such agency or body at the request of such 
        agency or body relating to a specific case or to a possible 
        pattern of substandard care, but only to the extent that such 
        data and information are required by the agency or body to carry 
        out its respective function which is within the jurisdiction of 
        the agency or body under State law or under section 1395bb of 
        this title; and
            (D) to provide notice in accordance with section 1320c-
        3(a)(9)(B) of this title;

        (2) to assist the Secretary, and such Federal and State agencies 
    recognized by the Secretary as having health planning or related 
    responsibilities under Federal or State law (including health 
    systems agencies and State health planning and development 
    agencies), in carrying out appropriate health care planning and 
    related activities, which data and information shall be provided in 
    such format and manner as may be prescribed by the Secretary or 
    agreed upon by the responsible Federal and State agencies and such 
    organization, and shall be in the form of aggregate statistical data 
    (without explicitly identifying any individual) on a geographic, 
    institutional, or other basis reflecting the volume and frequency of 
    services furnished, as well as the demographic characteristics of 
    the population subject to review by such organization.

The penalty provided in subsection (c) of this section shall not apply 
to the disclosure of any information received under this subsection, 
except that such penalty shall apply to the disclosure (by the agency 
receiving such information) of any such information described in 
paragraph (1) unless such disclosure is made in a judicial, 
administrative, or other formal legal proceeding resulting from an 
investigation conducted by the agency receiving the information. An 
organization may require payment of a reasonable fee for providing 
information under this subsection in response to a request for such 
information.

(c) Penalties

    It shall be unlawful for any person to disclose any such information 
described in subsection (a) of this section other than for the purposes 
provided in subsections (a) and (b) of this section, and any person 
violating the provisions of this section shall, upon conviction, be 
fined not more than $1,000, and imprisoned for not more than 6 months, 
or both, and shall be required to pay the costs of prosecution.

(d) Subpoena and discovery proceedings regarding patient records

    No patient record in the possession of an organization having a 
contract with the Secretary under this part shall be subject to subpoena 
or discovery proceedings in a civil action. No document or other 
information produced by such an organization in connection with its 
deliberations in making determinations under section 1320c-3(a)(1)(B) or 
1320c-5(a)(2) of this title shall be subject to subpoena or discovery in 
any administrative or civil proceeding; except that such an organization 
shall provide, upon request of a practitioner or other person adversely 
affected by such a determination, a summary of the organization's 
findings and conclusions in making the determination.

(e) Organizations with contracts

    For purposes of this section and section 1320c-6 of this title, the 
term ``organization with a contract with the Secretary under this part'' 
includes an entity with a contract with the Secretary under section 
1320c-3(a)(4)(C) of this title.

(Aug. 14, 1935, ch. 531, title XI, Sec. 1160, as added Pub. L. 97-248, 
title I, Sec. 143, Sept. 3, 1982, 96 Stat. 391; amended Pub. L. 99-509, 
title IX, Sec. 9353(d)(1), Oct. 21, 1986, 100 Stat. 2047; Pub. L. 100-
203, title IV, Sec. 4039(h)(6), Dec. 22, 1987, as added Pub. L. 100-360, 
title IV, Sec. 411(e)(3), July 1, 1988, 102 Stat. 776; Pub. L. 101-508, 
title IV, Sec. 4205(d)(1)(B), (e)(1), Nov. 5, 1990, 104 Stat. 1388-113, 
1388-114; Pub. L. 103-432, title I, Sec. 156(b)(2)(B), (4), Oct. 31, 
1994, 108 Stat. 4441.)


                            Prior Provisions

    A prior section 1320c-9, act Aug. 14, 1935, ch. 531, title XI, 
Sec. 1160, as added Oct. 30, 1972, Pub. L. 92-603, title II, 
Sec. 249F(b), 86 Stat. 1438; amended Oct. 25, 1977, Pub. L. 95-142, 
Sec. 5(e), (o)(3), 91 Stat. 1189, 1191; Aug. 13, 1981, Pub. L. 97-35, 
title XXI, Sec. 2113(g), 95 Stat. 795, enumerated obligations of health 
care practitioners and providers of health care services, prior to the 
general revision of this part by Pub. L. 97-248.


                               Amendments

    1994--Subsec. (b)(1)(D). Pub. L. 103-432, Sec. 156(b)(2)(B), amended 
subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: 
``to provide notice to the State medical board in accordance with 
section 1320c-3(a)(9)(B) of this title when the organization submits a 
report and recommendations to the Secretary under section 1320c-5(b)(1) 
of this title with respect to a physician whom the board is responsible 
for licensing;''.
    Subsec. (d). Pub. L. 103-432, Sec. 156(b)(4), which directed 
amendment of subsec. (d) by substituting ``subpoena'' for ``subpena'', 
was executed by making the substitution in two places to reflect the 
probable intent of Congress.
    1990--Subsec. (b)(1)(D). Pub. L. 101-508, Sec. 4205(d)(1)(B), added 
subpar. (D).
    Subsec. (d). Pub. L. 101-508, Sec. 4205(e)(1), inserted at end ``No 
document or other information produced by such an organization in 
connection with its deliberations in making determinations under section 
1320c-3(a)(1)(B) or 1320c-5(a)(2) of this title shall be subject to 
subpena or discovery in any administrative or civil proceeding; except 
that such an organization shall provide, upon request of a practitioner 
or other person adversely affected by such a determination, a summary of 
the organization's findings and conclusions in making the 
determination.''
    1988--Subsec. (e). Pub. L. 100-360 added Pub. L. 100-203, 
Sec. 4039(h)(6), see 1987 Amendment note below.
    1987--Subsec. (e). Pub. L. 100-203, Sec. 4039(h)(6), as added by 
Pub. L. 100-360, added subsec. (e).
    1986--Subsec. (b)(1)(C). Pub. L. 99-509 amended subpar. (C) 
generally. Prior to amendment, subpar. (C) read as follows: ``to assist 
appropriate State agencies recognized by the Secretary as having 
responsibility for licensing or certification of providers or 
practitioners, which data and information shall be provided by the peer 
review organization to any such agency at the request of such agency 
relating to a specific case, but only to the extent that such data and 
information is required by the agency in carrying out a function which 
is within the jurisdiction of such agency under State law; and''.


                    Effective Date of 1994 Amendment

    Section 156(b)(6) of Pub. L. 103-432 provided that:
    ``(A) Except as provided in subparagraph (B), the amendments made by 
this subsection [amending this section, sections 1320c-3 and 1320c-5 of 
this title, and provisions set out as notes under this section and 
section 1320c-5 of this title] shall take effect as if included in the 
enactment of OBRA-1990 [Pub. L. 101-508].
    ``(B) The amendments made by paragraph (2) [amending this section 
and section 1320c-3 of this title] (relating to the requirement on 
reporting of information to State boards) shall take effect on the date 
of the enactment of this Act [Oct. 31, 1994].''


                    Effective Date of 1990 Amendment

    Amendment by section 4205(d)(1)(B) of Pub. L. 101-508 applicable to 
notices of proposed sanctions issued more than 60 days after Nov. 5, 
1990, see section 4205(d)(1)(C) of Pub. L. 101-508, set out as a note 
under section 1320c-3 of this title.
    Section 4205(e)(2) of Pub. L. 101-508, as amended by Pub. L. 103-
432, title I, Sec. 156(b)(5), Oct. 31, 1994, 108 Stat. 4441, provided 
that: ``The amendment made by paragraph (1) [amending this section] 
shall apply to proceedings as of the date of the enactment of this Act 
[Nov. 5, 1990].''


                    Effective Date of 1988 Amendment

    Except as specifically provided in section 411 of Pub. L. 100-360, 
amendment by Pub. L. 100-360, as it relates to a provision in the 
Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203, effective as 
if included in the enactment of that provision in Pub. L. 100-203, see 
section 411(a) of Pub. L. 100-360, set out as a Reference to OBRA; 
Effective Date note under section 106 of Title 1, General Provisions.


                    Effective Date of 1986 Amendment

    Section 9353(d)(2) of Pub. L. 99-509 provided that: ``The amendments 
made by paragraph (1) [amending this section] shall apply to requests 
for data and information made on and after the end of the 6-month period 
beginning on the date of the enactment of this Act [Oct. 21, 1986].''


                   Freedom of Information Act Request

    Pub. L. 96-499, title IX, Sec. 928, Dec. 5, 1980, 94 Stat. 2630, 
provided that: ``No Professional Standards Review Organization 
designated (conditionally or otherwise) under part B of title XI of the 
Social Security Act [this part] shall be required to make available any 
records pursuant to a request made under section 552 of title 5, United 
States Code, until the later of (1) one year after the date of entry of 
a final court order requiring that such records be made available, or 
(2) the last date of the Congress during which the court order was 
entered.''

                  Section Referred to in Other Sections

    This section is referred to in sections 1320c-3, 1395y, 1395rr of 
this title.
