ࡱ>  bjbj tfl   4F (   d"3334D4"FT55L5(66666EEEEEEE$sG IE 66666E?  66E???6p 6 6E?6E??2E  2E65 zH"#39.2E2ElE0F2E!J<!J2E?z n    oral argument scheduled for october 4, 2002 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________________ No. 01-5294 _____________________________ PUBLIC CITIZEN, INC., Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellants. _____________________________ On Appeal from the United States District Court for the District of Columbia _____________________________ BRIEF AMICI CURIAE FOR THE AMERICAN HOSPITAL ASSOCIATION, THE FEDERATION OF AMERICAN HOSPITALS, AND THE AMERICAN MEDICAL ASSOCIATION IN SUPPORT OF APPELLANTS AND REVERSAL _____________________________ Darrel J. Grinstead Jeffrey D. Pariser Jenny R. Rubin Hogan & Hartson L.L.P. 555 Thirteenth St., N.W. Washington, D.C. 20004 Dated: May 17, 2002 (202) 637-5600 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), the undersigned counsel of record certifies as follows: A. Parties and Amici 1. All parties, intervenors, and amici appearing before the district court and in this court are listed in the Brief for Appellants. 2. Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1, amici curiae Association (AHA), American Medical Association (AMA), and Federation of s (FAH) state the following: AHA is a membership organization for hospitals. It has no parent companies, and there are no publicly-held companies that have a ten percent or greater interest in AHA. AMA is an Illinois non-profit corporation and association of physicians. It has no parent companies, and there are no publicly-held companies that have a ten percent or greater interest in AMA. FAH is a trade association of community hospitals and health systems. It has no parent companies, and there are no publicly-held companies that have a ten percent or greater interest in FAH. B. Rulings under Review A reference to the ruling at issue appears in the Brief for Appellants. C. Related Cases Amici curiae are unaware of any related cases. Respectfully submitted, HOGAN & HARTSON L.L.P. By: Darrel J. Grinstead Jeffrey D. Pariser Jenny R. Rubin Hogan & Hartson L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 Dated: May 17, 2002 (202)637-5600 Counsel for Amici Curiae In Support of Appellants TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASESi TABLE OF AUTHORITIESiv GLOSSARYvii INTEREST OF THE AMICI CURIAE1 INTRODUCTION5 ARGUMENT9 I. Peer Review Is Essential To Ensuring Quality Care10 II. Effective Peer Review Requires Confidentiality12 III. The District Courts Decision Permitting Release Of PRO Peer Review Results Is Not Consistent With The Peer Review Improvement Act And Will Prevent Effective PRO And Peer Review16 CONCLUSION18 EXHIBITS CERTIFICATES OF WORD COUNT AND SERVICE TABLE OF AUTHORITIES* Page CASES: Cameron v. New Hanover Mem'l Hosp., Inc., 293 S.E.2d 901 (N.C. Ct. App.), cert. denied, 297 S.E.2d 399 (N.C. 1982) 11-12 Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) 7-8 Huether v. District Court, 4 P.3d 1193 (Mont. 2000) 16 Laws v. Georgetown Univ. Hosp., 656 F. Supp. 824 (D.D.C. 1987) 13 McCall v. Henry Med. Ctr. Inc., 551 S.E.2d 739 (Ga. Ct. App. 2001) 11 Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996) 16 United States v. Harris Methodist Forth Worth, 970 F.2d 94 (5th Cir. 1992) 12-13 STATUTES: 42 U.S.C. 1320c 6, 16 42 U.S.C. 1320c-3(a) 5 42 U.S.C. 1320c-3(a)(14) 6-7 42 U.S.C. 1320c-9(a) 6 42 U.S.C. 1320c-9(c) 6 42 U.S.C. 1320c-9(d) 6 Haw. Rev. Stat. 671D-2 16 N.C. Gen. Stat. 131E-95 16 STATUTES: Tenn. Code Ann. 63-6-219(b)(1) 15-16 REGULATION: 42 C.F.R. 488.5 11 LEGISLATIVE MATERIALS: H.R. Rep. No. 99-727 (1986), reprinted in 1986 U.S.C.C.A.N. 3607 7 S. Rep. No. 97-494 (1982), reprinted in 1982 U.S.C.C.A.N. 781 12 OTHER AUTHORITIES: AHA, Patient Safety and Medical Error Reporting (2000) 11 AMA Policy H-340.901 13 AMA Policy H-375.989 13 AMA Policy H-375.997 10 Julie A. Braun et al., Recent Developments in Medicine and Law, 35 Tort & Ins. L.J. 487 (Winter 2000) 15 Committee on Quality of Health Care in Am., Institute of Medicine, To Err is Human: Building a Safer Health System (Linda T. Kohn et al. eds. 1999) 14, 15 Charles David Creech, Comment, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L. Rev. 179 (1988) 14 *Jeanne Darricades, Comment, Medical Peer Review: How is it Protected by the Health Care Quality Improvement Act of 1986?, 18 J. Contemp. L. 263 (1992) 9, 11, 13, 14 OTHER AUTHORITIES: Health Care Fin. Admin., HHS, 2001 HCFA Statistics (2001), at http://www.hcfa.gov/stats/01hcfastats.pdf 8 *Christopher S. Morter, Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting, 74 Va. L. Rev. 1115 (1988) 9-10 Peer Review Immunity Task Group, AHA, Immunity for Peer Review Participants in Hospitals: What Is It? Where Does It Come From? 9 (1989) 10 *Paul L. Scibetta, Note, Restructuring Hospital-Physician Relations: Patient Care Quality Depends on the Health of Hospital Peer Review, 51 U. Pitt. L. Rev. 1025 (Summer 1990) 10-11, 13-14 GLOSSARY AHA Association AMA American Medical Association FAH Federation of s HHS United States Department of Health and Human Services JCAHO Joint Commission on Accreditation of Health Care Organizations PRO Peer Review Organization Provider An institutional healthcare deliverer oral argument scheduled for october 4, 2002 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________________ No. 01-5294 _____________________________ PUBLIC CITIZEN, INC., Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellants. _____________________________ On Appeal from the United States District Court for the District of Columbia _____________________________ BRIEF FOR AMICI CURIAE THE AMERICAN HOSPITAL ASSOCIATION, THE FEDERATION OF AMERICAN HOSPITALS, AND THE AMERICAN MEDICAL ASSOCIATION IN SUPPORT OF APPELLANTS AND REVERSAL _____________________________ Interest of the Amici Curiae Amicus Association ("AHA") is the largest national membership organization for hospitals in the United States. The AHA's mission is to promote high quality health care and health services through leadership and assistance to hospitals in meeting the health care needs of their communities. The AHA's membership includes approximately 5,000 hospitals, health systems, networks, and other providers of care throughout the United States. Amicus American Medical Association ("AMA"), an Illinois non-profit corporation, is an association of approximately 275,000 physicians who practice throughout the United States. The AMA was founded in 1847 to promote the science and art of medicine and the betterment of public health, and these remain its core purposes. Its members practice in all fields of medical specialization, and it is the largest medical society in the United States. Amicus Federation of s ("FAH") is a national trade association representing privately owned and managed community hospitals and health systems providing health care across the acute and post-acute spectrum. FAH member hospitals provide care for patients in both urban and rural America. FAH's principal objective is to foster the public good through the creation and delivery of quality health care for all people. FAH's members include corporations or other organizations involved in the delivery of health care services that share a common philosophy of providing high quality, affordable health care, through free enterprise. Amici AHA, AMA, and FAH and their members have long been involved in peer review activities and in the delivery of health care services to patients on a daily basis. In amicis extensive experience, effective peer review which requires that physicians evaluate the competence of other practitioners is essential to ensuring and improving quality health care for patients. This process can only work if physicians are willing to review each other and can engage in frank and candid exchanges with respect to the physician under review. Amici contend that the district court's ruling, which effectively abrogates the confidential nature of PRO proceedings, will have a significant adverse effect on the delivery of safe, quality health care to Medicare and Medicaid beneficiaries, as well as other patients, by limiting the ability of medical care providers to monitor and improve the delivery of care to patients throughout the United States. The interest of amici in this case is thus to maintain the benefits of peer review for the general public. The participation of amici in developing peer review processes, their work in obtaining recognition for the importance of the peer-review privilege, and the participation of members of these organizations in peer review proceedings, give amici a unique breadth of experience and extensive specific knowledge on the questions at issue. Undersigned counsel therefore submit that amicis factual perspective will be of great assistance to the Court in its resolution of the technical issues relating to the need for maintaining confidentiality in peer review proceedings, which is an essential aspect of this case. INTRODUCTION At issue in this appeal is whether the Secretary has permissibly construed the Peer Review Improvement Act (PRIA or the Act) in limiting the disclosure of peer review information to Medicare beneficiaries. The district courts ruling that the Act requires the disclosure of sensitive peer review information to beneficiaries is inconsistent with the Act, which reflects Congresss overriding concern that peer review information be maintained as confidential. Confidentiality is critical to the process, because it allows physicians to engage in the candid critique and evaluation of their peers essential to meaningful review. Affirmance of the district courts ruling would effectively eviscerate the institution of peer review in the Medicare context, because without the guarantee of confidentiality, physicians will decline to participate in the peer review process. Nothing in the Act requires this result. Indeed, the district courts ruling cannot be squared with the very purpose of the Act. Congress enacted PRIA in order to, inter alia, improve the quality of health care delivered to Medicare beneficiaries through the peer review process, 42 U.S.C. 1320c-3(a), and various provisions in the statute make plain that Congress recognized effective peer review requires that the highly sensitive information obtained during the process remain confidential. Thus, PRIA establishes monetary penalties for unauthorized disclosure of peer review organization (PRO) information, exempts PROs from the requirements of the Freedom of Information Act, and, critically, exempts PRO materials from subpoena or discovery in civil proceedings. 42 U.S.C. 1320c-9(a),(c),(d). Notably, Congress delegated to the Secretary the responsibility for determining (by regulation) the limited extent to which peer review materials would be subject to disclosure. PRIA specifically provides that [a]ny data or information acquired by any [PRO] in the exercise of its duties and functions shall be held in confidence and shall not be disclosed to any person except . . . 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. 42 U.S.C. 1320c-9(a)(emphasis added). Specifically at issue in this litigation is a 1986 amendment to PRIA which expanded the scope of peer review to require PROs to investigate all beneficiary complaints about the quality of care that they received. 42 U.S.C. 1320c-3(a)(14). The amendment further required the PRO to inform the [beneficiary] of the [PROs] final disposition of the complaint. Id. Importantly, in enacting this amendment, Congress did not limit, change, or even address the key provisions in the Act significantly limiting the disclosure of PRO information and delegating to the Secretary the determination of what, if any, peer review information to disclose. The district court, applying the first step in the Chevron analysis, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984), concluded that the final disposition language in 1320c-3(a)(14) clearly requires disclosure to beneficiaries of peer review information setting forth substantive determinations made about beneficiary complaints. This interpretation is inconsistent with both the Acts final disposition language itself and the myriad provisions in the Act that exempt from disclosure peer review information. Moreover, as the Secretarys Brief demonstrates, even if the Act is ambiguous (i.e., if it were arguable whether PRIA mandates disclosure of substantive peer review information beyond the final disposition of complaints), the district courts ruling was nonetheless in error because Chevron requires the court to defer to the Secretarys permissible construction of the statute. 467 U.S. at 843. The Secretarys decision that maintaining peer review confidentiality by providing limited disclosures to complaining beneficiaries is consistent with the statutory language of the Act and thus easily satisfies this Chevron step two analysis. The peer review scheme established in PRIA examines the quality of care provided in nearly every hospital in the United States. Moreover, Medicare peer review is an integral part of our nationwide system of peer review that includes internal provider medical review committees, medical societies, and third party payers, among others. The standards by which PRO peer review is conducted and the extent to which PRO information is maintained confidentially thus will influence other types of peer review and the willingness of physicians and providers to participate in it. In this brief, amici first demonstrate that peer review is essential to ensuring the provision of quality health care. Next, we explain that effective peer review requires confidentiality. Finally, we demonstrate that the district courts ruling negates confidentiality in the peer review context. If upheld, the district courts ruling would critically damage the peer review system mandated by Congress in PRIA. Absent confidentiality, peer review is unlikely to continue in its current robust form, if at all. Congress plainly did not intend this result in the Act. Moreover, the district courts holding overrides Congress decision to delegate to the Secretary the careful balancing of interests involved in peer review. The district courts decision that the Act clearly requires disclosure of peer review results to beneficiaries will reduce the effectiveness of medical peer review in all its forms, and should be reversed. ARGUMENT I. Peer Review Is Essential To Ensuring Quality Care. Medical peer review is the universally accepted process by which physicians evaluate the quality of care delivered by other practitioners and effect disciplinary actions against medical staff members when appropriate. Jeanne Darricades, Comment, Medical Peer Review: How is it Protected by the Health Care Quality Improvement Act of 1986?, 18 J. Contemp. L. 263, 263 (1992) (hereinafter "Medical Peer Review"); see Christopher S. Morter, Note, The Health Care Quality Improvement Act of 1986: Will Physicians Find Peer Review More Inviting, 74 Va. L. Rev. 1115, 1117 (1988) (hereinafter Health Care Quality Improvement Act of 1986). Peer review is an organized effort to evaluate and analyze medical care services . . . and to assure the quality and appropriateness of these services so as to maintain and improve the quality of medical care. AMA Policy H-375.997. Peer review thus enhances the quality of patient care through effective supervision of health care professionals [and] elimination from the health care system of those who should not practice." Peer Review Immunity Task Group, AHA, Immunity for Peer Review Participants in Hospitals: What Is It? Where Does it Come From? 9 (1989). On an individual level, the identification of practitioners with quality of care problems permits peer review panels to aid lagging physicians in improving the quality of the services they deliver before their care becomes dangerous. In more serious cases, peer reviewers can prevent individuals from continuing to deliver services at all. Paul L. Scibetta, Note, Restructuring Hospital-Physician Relations: Patient Care Quality Depends on the Health of Hospital Peer Review, 51 U. Pitt. L. Rev. 1025, 1033 (Summer 1990) (hereinafter Restructuring Hospital-Physician Relations). From a systems-level perspective, peer review enables health care providers to identify structural or systemic problems that may increase the likelihood of medical errors. AHA, Patient Safety and Medical Error Reporting 2 (2000). The importance of peer review in improving the quality of health care services has long been recognized by the Joint Commission on the Accreditation of Healthcare Organizations ("JCAHO"), the leading hospital accreditation body in the United States. For years JCAHO has issued accreditation standards that require hospitals to establish medical staff committees to conduct peer review to improve the quality of care provided to the public. Medical Peer Review, supra, at 269. JCAHO charges such committees with monitor[ing] and evaluat[ing] the quality and appropriateness of patient care and clinical performance, and resolv[ing] identified problems. Id. (internal citations omitted). Courts have also recognized that peer review is critical to the protection and improvement of patient care. See McCall v. Henry Med. Ctr. Inc., 551 S.E.2d 739, 742 (Ga. Ct. App. 2001) (The ultimate purpose of the peer review law is to improve the delivery of medical care to the patient.); Cameron v. New Hanover Mem'l Hosp., Inc., 293 S.E.2d 901, 922 (N.C. Ct. App. 1982) (where "[h]uman lives are at stake . . . [t]he evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers"), cert. denied, 297 S.E.2d 399 (N.C. 1982). II. Effective Peer Review Requires Confidentiality. As Congress noted when initially enacting the PRO program, [w]here physicians are willing to work cooperatively, [peer review] can do much to prevent unnecessary services and thereby minimize risks to patients. . .S. Rep. No. 97-494, at 41 (1982), reprinted in 1982 U.S.C.C.A.N. 781, 817. However, such cooperation in fully and fairly evaluating a peers quality of care requires that reviewing physicians have the ability freely to discuss and, if necessary, to criticize the actions taken by their colleagues in other words, to maintain a frank, candid exchange of ideas. If committee members fail to candidly evaluate their colleagues, poor-quality care will go uncorrected, and incompetent or impaired physicians will be allowed to continue practicing. Indeed, federal courts in this Circuit and elsewhere have explicitly recognized that the public interest lies in encouraging and maintaining confidential peer review proceedings. E.g., United States v. Harris Methodist Fort Worth, 970 F.2d 94, 103 (5th Cir. 1992) ("[P]eer review materials are sensitive and inherently confidential, and protecting that confidentiality serves an important public interest"); Laws v. Georgetown Univ. Hosp., 656 F. Supp. 824, 826 (D.D.C. 1987) ("[T]his Court recognizes an overwhelming public interest in promoting improvement in health care through the mechanism of staff peer review"). Amici and their members also have adopted policies emphasizing the importance of ensuring confidentiality of peer review proceedings. For instance, the AMA believes that for peer review to be effective, peer review data must be kept confidential. AMA Policy H-375.989. Further, the language used in PRO correspondence with beneficiaries should be properly worded to ensure that the patient/physician relationship is not jeopardized; and . . . PROs should be required to receive affirmative physician consent before patients are notified of PRO review determinations. AMA Policy H-340.901. Despite the recognized importance of such candid discussions in addressing problems and enhancing the quality of medical care, many physicians are reluctant to participate actively in the peer review process. Medical Peer Review, supra, at 270. The most serious disincentive to participation in peer review is the fear that participation will lead to a lawsuit against the reviewer personally. Restructuring Hospital-Physician Relations, supra, at 1033-34. This fear arises out of the flood of lawsuits brought over the past two decades by physicians allegedly harmed through peer review proceedings, involving antitrust, defamation, and discrimination claims, and a host of tort and contract claims. Medical Peer Review, supra, at 271-72. In the case of federal antitrust and civil rights claims, the risk of liability for treble or punitive damages or attorneys fees has accentuated the already strong desire to avoid activities that may give rise to such suits. Id. Physicians may also fear that as will be the case here unless the district courts decision is reversed malpractice plaintiffs will obtain peer review materials, thereby making physicians unwitting witnesses in legal actions against their peers. See Charles David Creech, Comment, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L. Rev. 179, 179 (1988). Thus, the possibility of litigation can significantly influence the behavior of physicians and other health care providers. Committee on Quality of Health Care in Am., Institute of Medicine, To Err is Human: Building a Safer Health System 94 (Linda T. Kohn et al. eds. 1999). In an environment without confidentiality protections for information disclosed or discussed during the peer review process, physicians and other providers are likely to decline to participate in peer review at all, out of fear that information they provide may later be used against them or their colleagues. Id. As a result, the medical profession will lose the opportunity to discuss the circumstances leading to medical errors or near-errors and to learn how to prevent such mistakes in the future. Id. at 94-95. Further, as noted, [p]rotecting [peer review] information encourages disclosure of problems and a proactive approach to correcting problems before serious harm occurs. Id. at 95. In response to physicians concerns that disclosure of peer review information will embroil them in litigation by reviewed physicians or malpractice plaintiffs, every state and the District of Columbia now provides some confidentiality protections for peer review information just as Congress did in the PRO context. Julie A. Braun et al., Recent Developments in Medicine and Law, 35 Tort & Ins. L.J. 487, 529-30 (Winter 2000). These statutes are designed to encourage physicians to engage in medical peer review and thereby ensure that the medical profession maintains its high quality standards. See, e.g., Tenn. Code Ann. 63-6-219(b)(1) ([I]t is the stated policy of Tennessee to encourage committees made up of Tennessees licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers professional conduct, competence, and ability to practice medicine. Tennessee further recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.); see also Haw. Rev. Stat. 671D-2 (purpose of this chapter is to provide incentives and protection for physicians engaging in effective professional peer review); N.C. Gen. Stat. 131E-95 (protecting the confidentiality of medical review proceedings and granting immunity to medical review participants). In interpreting and applying these state-created privileges, courts have repeatedly recognized that maintaining confidentiality in peer-review proceedings is critical to ensuring quality health care. E.g., Huether v. District Court, 4 P.3d 1193, 1195 (Mont. 2000); Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 3 (Tex. 1996). III. The District Courts Decision Requiring Release Of Peer Review Results Is Not Consistent With The Peer Review Improvement Act And Will Prevent Effective PRO And Peer Review. PRIA requires that all hospitals participating in the Medicare program engage in PRO review for the purpose of evaluating the appropriateness and quality of care delivered to Medicare beneficiaries. 42 U.S.C. 1320c. Nearly every hospital in the United States participates in Medicare, and PROs review the medical services delivered in all such hospitals. PROs thereby play an integral role in the nations system of peer review and in improving the quality of medical care around the country; when PRO review operates effectively and efficiently, PROs contribute to improving the level of health care delivered to Medicare beneficiaries and others alike. Likewise, to the extent that the effectiveness of PRO proceedings is hampered by the disclosure of PRO information, the overall quality improvement efforts of the nations health care system will be adversely affected. Once courts hold that PRO peer review results previously believed to be confidential can be made public as the district court has done here the community of physician reviewers will diminish rapidly, if not fade away entirely. Release of the PRO peer review results sought in this case will discourage physicians from engaging in peer review and limit the effectiveness of any peer review that is conducted, because few, if any, physicians will be able to engage in the candid evaluation of their colleagues necessary to useful review. As a result, the professions ability to monitor and improve the delivery of health care will be diminished. Recognizing the important role that PROs play in the nations quality improvement and peer review activities, the Secretary has exercised his authority to balance the relevant interests in access to PRO information by establishing a regulatory scheme that ensures the information shared and discussed in the peer review process will be maintained confidentially. Without this important protection, the robust exchange of information necessary to effective peer review will dissipate, rendering PRO proceedings unable to achieve their important purpose of ensuring quality health care for all patients. The district court erred when it eviscerated the peer review protections established in PRIA, and its decision threatens quality improvement efforts around the country. CONCLUSION For the foregoing reasons, amici curiae AHA, AMA, and FHA respectfully request that the judgment of the district court be reversed and the case remanded with instructions to enter judgment for appellants. Respectfully submitted, HOGAN & HARTSON L.L.P. By: Darrel J. Grinstead, D.C. Bar #064022 Jeffrey D. Pariser, D.C. Bar #462085 Jenny R. Rubin, D.C. Bar #473290 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 Counsel for Amici Curiae Association, American Medical Association, and Dated: May 17, 2002 Federation of s CERTIFICATE OF WORD COUNT Pursuant to Fed. R. App. P. 32(a)(7)(C), Circuit Rule 32(a), and the briefing order in this case, I hereby certify that the foregoing Brief for Amici Curiae the Association, the American Medical Association, and the Federation of s in Support of Appellants and Reversal contains 3488 words. ________________________ Jeffrey Pariser CERTIFICATE OF SERVICE I hereby certify that on May 17, 2002, two copies of the foregoing Brief for Amici Curiae the Association, the American Medical Association, and the Federation of s in Support of Appellants and Reversal were served by first class mail, postage prepaid, on the following counsel: Roscoe C. Howard, Jr. R. Craig Lawrence G. Michael Harvey United States Attorneys Judiciary Center Building 555 Fourth Street, N.W. Washington, DC 20001 Attorneys for Defendant Alison M. Zieve Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009 Robert W. Goodson Carr Goodson 1667 K Street, N.W., Suite 1100 Washington, DC 20006 Thomas W. Kirby Jason P. Cronic Wiley, Rein & Fielding LLP 1776 K Street, N.W. Washington, DC 20006 Attorneys for Plaintiff Gill Deford Center for Medicare Advocacy P.O. Box 350 Willimantic, CT 06226 Vicki Gottlich Center for Medicare Advocacy, Inc. 1101 Vermont Avenue, N.W. Suite 1001 Washington, D.C. 20005 Attorneys for Amicus Curiae ________________________ Jeffrey Pariser * Authorities on which we chiefly rely are marked with asterisks.  The American Medical Association files this brief as a member of The Litigation Center of the American Medical Association and the State Medical Societies. The Litigation Center was formed in 1995 as a coalition of the AMA and nonprofit state medical societies to represent the views of organized medicine in the courts. Forty-nine state medical societies are members of the Litigation Center.  PRIA mandates that the Secretary contract with private PROs to provide peer review services. 42 U.S.C. 1320c.  Prior to 1986, the investigation of beneficiary complaints was a discretionary function of PROs. H.R. Rep. No. 99-727, at 457 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3854.  Medicare-funded hospital care accounts for approximately 31% of health care spending in the United States. Health Care Fin. Admin., HHS, 2001 HCFA Statistics 28 (2001), at  HYPERLINK "http://www.hcfa.gov/stats/01hcfastats.pdf" http://www.hcfa.gov/stats/01hcfastats.pdf.  For the Courts convenience, amici have provided with this Brief an appendix of secondary authorities cited herein.  All AMA policies referenced herein can be located at  HYPERLINK "http://www.ama-assn.org/ama/pub/category/2982.html" http://www.ama-assn.org/ama/pub/category/2982.html and were last visited on May 15, 2002.  Although JCAHO is a non-governmental organization, JCAHO accreditation generally deems a hospital or other health care provider eligible for participation in the Medicare program. 42 C.F.R. 488.5; see also Medical Peer Review, supra, at 268. 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