Year: 2017

December 21, 2017

Posted on by hortyspringer

QUESTION:        Is suspicion of alcohol or drug use while on hospital premises reason enough for Administration or medical staff leadership to act?

ANSWER:            First, you need a game plan.  By that, we mean a physician health/wellness policy.  Many hospitals and medical staffs have a separate policy dealing with such issues, including substance abuse.  These policies routinely provide for drug or alcohol screens when there is a suspicion of impairment, who may request them and the consequences if the physician declines.

Suspicion is reason enough to act.  In accordance with the policy, anyone should be able to report a concern – any practitioner, employee, patient, family member, or any other individual.  The concern should be reported to the Chief of Staff, Chief Medical Officer (“CMO”), or another medical staff leader, who will then refer it to the committee handling the matter (e.g., either a “Leadership Council” of experienced leaders or a physician health committee), which will assume primary responsibility for an issue.

Individuals filing a report do not need to have “proof,” but should describe the facts that form the basis for their suspicion, such as an odor of alcohol, problems with judgment or speech, diminished motor skills, behavior changes and mood swings, and unexplained drowsiness or inattentiveness, among other things.

If the physician is providing services at the hospital, or is expected to provide services in the very near future (e.g., a few hours) such that the committee would not have time to meet prior to the physician’s provision of services, the Chief of Staff, CMO, or other medical staff leader should be required to immediately and personally assess the physician, who may be required to submit to a blood, hair, or urine test, or other appropriate evaluation, to determine his or her ability to safely practice.  If the physician refuses, that should result in the automatic relinquishment of the physician’s clinical privileges pending review of the matter by the committee.

Another option is to ask the physician to voluntarily refrain from exercising his or her clinical privileges or agree to conditions on his or her practice while the matter is being reviewed.  If the physician agrees to voluntarily refrain from exercising his or her privileges, his or her patients may be assigned to another individual with appropriate clinical privileges.  If the physician does not agree, a precautionary suspension may be considered in accordance with the Credentials or Health/Wellness Policy.

For more on practitioner health and wellness, join Linda Haddad and Phil Zarone for

“Something Smells Fishy Around Here…”
January 9, 2018

– the first of our Grand Rounds 2018 series – “Crisis!!!  Now What?”

December 14, 2017

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws require, as a threshold eligibility criterion, that an individual be board certified or become board certified within five years of joining the medical staff.  A long-time medical staff member, about whom we have no quality concerns, recently allowed his board certification to expire.  We notified him that he needs to recertify or will not be eligible to apply for renewal of appointment at the end of his current term.  He said that he does not read the Bylaws that way and since he was board certified within five years of joining the medical staff, he satisfied the threshold criterion related to board certification.  Is he right?  We’ve always enforced the board certification requirement as requiring current certification.

ANSWER:            Board certification has certainly become a contentious issue lately.  There is no universal best practice regarding whether to require recertification or maintenance of certification – but what is important is that the Medical Staff Bylaws and related documents (such as the Credentials Policy, if you use one) be clear regarding what is required, so that no medical staff member will be caught off guard and the leadership will not have to spend its time engaged in disputes over interpretation.

The intention in your Bylaws language is clear to me (and probably everyone else who works in medical staff leadership and credentialing).  When the Bylaws language was drafted, it was clearly meant to require current board certification by members, but to create an exception for those who are new to the organization, to give them time to “get up to speed” with your requirements.  From a technical standpoint, however, any medical staff member could argue that he or she only needs to meet one of the requirements set forth in the applicable threshold criterion.  That is, they either need to be board certified OR achieve certification within five years.  Clearly, the physician at issue in your case is taking advantage of the way the provision was drafted to argue that he has satisfied the second requirement and, in turn, has fulfilled the certification requirement indefinitely (without any need to recertify or maintain certification).

So, can you enforce the requirement that individuals be currently board certified based on your existing language?  The answer is not entirely certain.  If you have a set precedent of consistently interpreting your Bylaws language as requiring certification that is current – and applying the five year exception provision only to new members of the medical staff – there is a good chance that you can take the position that the Bylaws language requires current certification.  Nevertheless, because collegiality, transparency, and fairness are important in credentialing, it may make sense to at least consider whether the current situation can be dealt with in a way that pleases everyone.  Could a one-time waiver be granted, thus allowing the physician whose certification has lapsed one additional appointment term to recertify?  Doing so may keep the peace while the leadership works to adopt Bylaws language that clarifies this matter for everyone.

To that end, at this point, it would be wise to update the language of the Medical Staff Bylaws to more clearly state any requirements for recertification and/or maintenance of certification and to specify how lapses will be managed (immediately or at reappointment, for example).  Further, most hospitals and medical staffs have, in recent years, moved away from Bylaws language requiring certification within a number of years after joining the medical staff.  Consider instead adopting language stating that if an individual is not certified, but completed his or her training within the past [X number] of years, he or she will be eligible, but must become certified prior to that deadline or will become ineligible for renewal thereafter.

December 7, 2017

Posted on by hortyspringer

QUESTION:          An applicant answered “no” in response to a question on our application as to whether he ever resigned clinical privileges while under or in return for not conducting an investigation.  There was a report in the NPDB from another hospital stating that he surrendered privileges while under investigation.  We advised him that pursuant to our credentialing policy, processing of his application would stop.  His lawyer has written a letter stating that he was filing suit against that hospital based on allegations that the investigation was initiated in retaliation for whistleblowing and that it is unfair to stop processing the application.  Must we process the application?

ANSWER:            No.  When the physician signed the application, he agreed to be bound by your bylaws and credentialing policy.  A signature on an application constitutes a representation that the information provided was accurate.  Even in the absence of clear language in bylaws or a credentialing policy that a misstatement or omission is grounds to stop the processing, an application would be deemed incomplete.  Due diligence would require extensive commitment of resources; it would be very difficult to assess the allegation (and essentially second-guess what that other hospital did).  That’s why having such language that processing will stop is helpful.  Allegations that a peer review process was based on retaliation for whistleblowing are becoming increasingly common.  And, the proper way for the physician to have responded would have been “yes,” with an explanation.

 

November 30, 2017

Posted on by hortyspringer

QUESTION:        Is McRib really back?

ANSWER:            You bet it is! (for a limited time only, of course)

And so is Horty Springer’s Physician-Hospital Contracts Clinic — back by popular demand!

Join Henry Casale and Dan Mulholland in Austin in March for the latest legal developments affecting hospital-physician financial arrangements — and a Whole Lot More. But hurry. Just like that saucy sandwich we all love, the Contracts Clinic only comes around every couple of years. Don’t Miss It!

November 16, 2017

Posted on by hortyspringer

QUESTION:        I took the minutes at committee meetings for years, and if there was any doubt as to what someone said, my minutes would give a word-for-word accounting of the discussion.  We just hired someone new to take the minutes, and I was shocked at the small amount of information recorded.  What should be in the minutes?

ANSWER:            The most important thing that minutes should do is record the actions taken at a meeting, but not the discussions that took place.  There are “Do’s” and “Don’ts” for meetings, and we’ll start with the “Do’s.”

Do:            write down the name of the committee that is meeting, the date of the meeting, who is in attendance, and who is absent; list if there are any guests or visitors at the meeting; note the time the meeting was called to order, who called it to order, and the time it was adjourned; note whether it is a regular or special meeting of the committee; note, if it is a special meeting, that notice was given to the committee members and the way notice was given; note whether a quorum was present; note whether the previous minutes were read and approved; note the result of the votes, for example, 7–1 to suspend the physician’s privileges.  This is the most important “Do” since the vote is the committee’s action.

Don’t        record the details of any discussion.  This is the most important “Don’t.”  Sometimes, in the heat of the moment, someone may say something that they do not mean, that can be misinterpreted, or was meant as a joke, but looks sinister in black and white.  If it is recorded in the minutes, it is there forever, and may turn up again – in front of a jury.  There is not really a need to record the details of a discussion.  What is important is the vote, the committee’s action.

But, with every rule, there is an exception.  The exception here is “Do put details of a discussion in if it helps” and it helps when a committee makes an adverse recommendation regarding a physician.  In that case, the minutes could be your best friend.  The details would allow the committee to record the objective reasons for taking action.  The reasons can be explained, but, comments should not be attributed to any one individual.

Don’t        record how each member voted, unless a committee member wants a dissent recorded.

Don’t        record who made motions and who seconded them or who said what to someone else or record personal remarks unrelated to the committee’s business.

November 9, 2017

Posted on by hortyspringer

QUESTION:        Our Bylaws Committee would like to know more about exclusive contracts.  Specifically, we want to know where the hospital board gets the authority to enter into an exclusive contract.  Does this come from the medical staff bylaws or from somewhere else?

ANSWER:            Under the general principles of corporate law, hospital boards are afforded broad discretion in how they manage the hospital’s business affairs, including the ability to enter into exclusive contracts.  These general principles are reflected in laws at the federal and state levels, as well as in the standards of various health care accreditation bodies.  Consequently, the board’s authority to enter into an exclusive contract is bestowed by law, not by the medical staff bylaws.

Courts often view exclusive contract decisions as “quasi-legislative” actions, in contrast to an “adjudicatory” action aimed at a particular physician (which might give rise to a hearing).  So long as the hospital board acts rationally when it undertakes these quasi-legislative actions, courts are likely to defer to the board’s business judgment.

Although the medical staff bylaws are not the source of this authority, they may affect the process and consequences of entering into an exclusive contract.  For example, the bylaws (or credentials policy) may outline a process for the Medical Executive Committee to review and comment on the clinical performance and service implications of the proposed exclusive contract.  This review-and-comment process is limited solely to the clinical performance aspects of the contract; the actual terms of the arrangement (especially financial terms relating to remuneration) would not be disclosed to the Medical Executive Committee.

It is also important to see how the medical staff bylaws frame the issue of medical staff privileges.  The definition of medical staff privileges is relevant when assessing whether the exclusive contract arrangement will entitle the affected practitioners to any kind of hearing.  When you are drafting bylaws, we do not recommend that you give hearings to physicians affected by the exclusive contract.  Entering into this kind of contract is a managerial business decision – it is not a judgment about a particular practitioner’s competence or professionalism.

Most state laws (and most courts) recognize these core principles, but there are some exceptions.  Be sure to check the laws of your state before proceeding with an exclusive arrangement.

If you’d like more information on these issues, you should join us for our November 30 audio conference on Exclusive Contracts: New Challenges, New Opportunities.  Henry Casale and Josh Hodges will share best practices for entering into an exclusive contract, including recommendations on drafting the agreement and tips on avoiding common pitfalls.  More information will be available on our website in the near future.

November 2, 2017

Posted on by hortyspringer

QUESTION:        We have several clinical departments that have either weak chairs or chairs who are there entirely by “default.” These individuals are relied upon to perform a really important role.  How can we get stronger leaders interested?

ANSWER:            In many hospitals, it has been traditional to rotate the department chair position so that everyone gets his or her turn.  However, not every physician, quite frankly, has an aptitude for, or interest in, medical staff leadership.

One answer might be to develop stronger qualifications for serving in medical staff leadership roles, including officers and department chairs, and to provide for compensation for department chairs.  Another question to ask is if there are too many departments.  Consider consolidating departments.  By having fewer positions to fill, you then have a larger pool of qualified people who want to serve.

Finally, many hospitals are facing this very issue and are tackling it head on by incorporating an affirmative “succession development” process.  In these facilities, a small core group of medical staff leaders has an ongoing responsibility for identifying individuals who seem to show an aptitude for leadership and cultivating those skills – beginning with committee appointments and then moving them forward in the leadership track.

 

October 26, 2017

Posted on by hortyspringer

QUESTION:        Can a hospital require visitors for a patient in isolation who has an infection resistant to antibiotics (e.g., C. diff) to use personal protective equipment while visiting the patient to limit the risk of spreading the infectious disease?

ANSWER:            The short answer is that there is no prohibition on such a requirement.  However, the requirement, and the reasons for the requirement, should be specified in hospital policies.

CMS requires “a hospital [to] have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital may need to place on such rights and the reasons for the clinical restriction or limitation.”  CMS’s guidance on this requirement specifically recognizes “infection control issues” as a circumstance in which a clinically necessary or reasonable restriction may be imposed.

The CMS rules also require hospitals to establish “an active program for the prevention, control, and investigation of infections and communicable diseases.”  According to CMS’s guidance, a hospital’s infection control program must address “[m]itigation of risks associated with patient infections present upon admission” and include “[a]ppropriate use of personal protective equipment including gowns, gloves, masks and eye protection devices.”

State hospital licensing regulations which address the issue are generally consistent with the CMS rules.  As an example, the Arizona Hospital Licensing Regulations instruct that hospitals are required to have “[p]olicies and procedures…[t]o prevent or minimize, identify, report, and investigate infections and communicable diseases that include:…iv. Using personal protective equipment such as gowns, masks, or face protection….”

The literature on the subject supports the opinion that a requirement for visitors to don personal protective equipment while visiting patients in isolation is “clinically necessary” or a “reasonable restriction.”  For example, a July 2015 article (“Precautions Guidelines for Hospital Visitors”) in the American Journal of Nursing cited recommendations from the Society for Healthcare Epidemiology of America.  According to the article:

For visitors’ protection, the authors recommend contact precautions (gowns and gloves) when enteric pathogens, such as Clostridium difficile or norovirus, or extensively drug-resistant pathogens, such as Klebsiella pneumoniae carbapenemase, are not widely prevalent in the community or when their prevalence is unknown.  Those visiting multiple patients should follow contact isolation precautions and use personal protective equipment.

In conclusion, there is no prohibition on requiring personal protective equipment for visitors of patients in isolation.  This would likely be considered a “clinically necessary” and/or “reasonable restriction” on visitation and part of a hospital’s “infection control program.”  The hospital’s policies and procedures should explicitly spell out this requirement, when it applies, and the reasons for it.

October 19, 2017

Posted on by hortyspringer

QUESTION:        The hospital across town is very lax with its on-call schedule. Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient. Our physicians feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

ANSWER:            Yes. Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer. A lateral transfer occurs where the same services are provided at both the sending hospital and the receiving hospital. Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.” However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.” Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient. This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).

This requirement has put hospitals across the country, and their on-call physicians, in a difficult position. Essentially, this requirement can make on-call physicians at Hospital B (the receiving hospital) responsible not only for Hospital B’s ED patients, but also potentially for many of Hospital A’s (the sending Hospital) ED patients. That could be because Hospital A doesn’t have the needed specialist on its medical staff or because Hospital A has a less rigorous call schedule than Hospital B.

To learn more about this issue, please join Phil Zarone and Ian Donaldson on November 7, 2017 for an audio conference on “On-Call and EMTALA Policies.” For more information, click here.

October 12, 2017

Posted on by hortyspringer

QUESTION:        Our hospital operates an emergency room and has an inpatient behavioral health unit.  Our emergency room has evaluated a patient with mental illness on numerous occasions, typically on “emergency certificates” under our state law.  In the past, this particular patient has been violent and assaultive toward staff in the emergency room.  Under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), are we permitted to refuse to admit this patient to our behavioral health unit the next time he comes to the emergency room with a psychiatric emergency?

ANSWER:            That’s a very good question, and for any individual hospital, the best answer probably comes from its CMS Regional Office.  Each Regional Office has EMTALA “jurisdiction” over its region.  It is the Regional Office that determines whether there has been an EMTALA violation or not if a complaint is received.

Under EMTALA, the hospital is required to perform a medical screening examination on the patient when he is brought to the emergency room to determine if the patient has an emergency medical condition.  The definition of “emergency medical condition” under EMTALA includes a psychiatric emergency medical condition.

If the patient has a psychiatric emergency medical condition, the EMTALA duty on the hospital is to stabilize that emergency medical condition if the hospital has the capacity and the capability to do so.  Because this hospital has a behavioral health unit, it has the services and resources to stabilize a psychiatric emergency medical condition.  (That’s assuming the behavioral health unit has an available bed.)

Many hospitals do not have forensic units, nor are they staffed to address violent psychiatric patients.  The EMTALA regulations state that a hospital is to provide stabilizing treatment within the capabilities of the staff and facilities available at the hospital.  Thus, there is an EMTALA argument to make that treating a violent psychiatric patient does not come within the capabilities of a hospital’s behavioral health unit.

However, in our discussions with one CMS Regional Office, a representative informed us that the Regional Office expects all behavioral health units to be able to handle a certain level of violence in a psychiatric patient.  If a complaint was ever brought about the rejection of a patient with a psychiatric emergency medical condition, the Regional Office would have its own psychiatrist review and determine whether the violence level of the patient exceeded the behavioral health unit’s capabilities and resources.  If the Regional Office psychiatrist felt that the behavioral health unit could have managed the patient, there would be an EMTALA violation.

Notwithstanding the EMTALA implications of the situation, the most important consideration is the safety of the staff of the hospital and the patient.  A more proactive approach might be useful in which representatives from the hospital (including its security staff) sit down to discuss a method to handle violent patients in general.  The development of this method may be assisted by involving the local police, especially if the circumstances involve a patient or patients who have been assaultive in the past and/or have threatened to assault hospital staff in the future.

This is a very difficult issue, but a well-defined plan or policy that includes input from all those potentially involved would help in understanding the issue, achieving buy-in, complying with the law, and, most importantly, protecting staff and patients.

For more information on this topic, join Susan Lapenta and Phil Zarone on November 7, 2017 for the On-Call and EMTALA Policies audio conference (part of the Horty, Springer & Mattern Grand Rounds audio conference series).