QUESTION: If you won $220 million on last night’s Powerball drawing, would you still buy a ticket for tomorrow’s $282 million Mega Millions jackpot?
ANSWER: If you answered yes, you’re a greed-head. If no, you’re a cheapskate. And if you thought this was a real question of the week, there’s a bridge in Brooklyn we’d like to talk to you about buying from us.
QUESTION: Our Leadership Council is developing a Performance Improvement Plan (“PIP”) for a practitioner at our hospital who does not play well with others. One member of our leadership team suggested that we send the practitioner out for a psychiatric evaluation before finalizing the PIP. Does this make sense?
ANSWER: As a rule of thumb, we recommend that you stay away from requesting psychiatric evaluations from practitioners who have failed to meet your Medical Staff’s standards regarding professionalism. In our experience, such an evaluation only tends to cloud the Leadership Council’s thinking on how best to address the inappropriate behavior that has been identified. Additionally, a request for an evaluation might give the practitioner a basis for claiming that he or she was discriminated against under the ADA if disciplinary action is ultimately taken. That is why we believe it is better to focus on the behavior at issue rather than spending too much time and energy trying to identify its cause.
Of course, impairment and “burnout” are real concerns. So, if there is compelling evidence that suggests that the practitioner is dealing with a legitimate health issue, then an evaluation may be appropriate. But that should be managed through your process on practitioner impairment, not your Professionalism Policy.
To make sure you have the tools you need to manage difficult scenarios like this, please join Barbara Blackmond and Rachel Remaley on August 1, 2017 for a special audio conference on “best practices” for your Professionalism Policy. More information can be found here.
QUESTION: I heard that CMS is planning to introduce new episode payment models. When will these take effect?
ANSWER: As many of you know, CMS has spent the past several years trying to move away from traditional fee-for-service medicine. Some of you are likely already participating in the Comprehensive Care for Joint Replacement model, which provides value-based payment for certain types of lower extremity joint replacement procedures. CMS has recently finalized new policies to implement three new episode payment models (“EPMs”). The EPMs will apply to Medicare beneficiaries undergoing services related to acute myocardial infarctions (the “AMI model”), coronary artery bypass grafts (the “CABG model”), and surgical hip/femur fracture treatment (the “SHFFT model”).
In the spring of this year, CMS publicized its intent to delay the effective date of these three EPMs. CMS explained that it agreed with commentators who had asked for more time to prepare for this new payment structure. CMS also reasoned that the delay would give the agency more time to make modifications, if necessary. Consequently, the effective date of the AMI model, CABG model, and SHFFT model has been delayed until January 1, 2018.
In addition to these three EPMs, there will also be a cardiac rehabilitation incentive payment model. This is designed to reduce hospitalizations and preserve medical resources by encouraging affected beneficiaries to take advantage of cardiac rehabilitation. CMS reasoned that it would be confusing and operationally challenging to implement this cardiac rehabilitation model in 2017. For ease of implementation, it delayed the cardiac rehabilitation model to January 1, 2018 as well.
Although CMS has expressed a firm intent to proceed with the planned EPMs and cardiac rehabilitation model, it is possible that the agency will make significant further changes before 2018. We recommend that you build some flexibility into your planning process to account for this uncertainty.
QUESTION: We have received an application from a physician and some issues have been raised. While the physician has excellent education and training, she has moved around quite a bit and hasn’t been able to explain the moves in a way that makes sense. She also answered “No” to the question on the application that asked “Have you ever withdrawn your application for appointment before a hospital made a decision?” We have learned that she withdrew an application from the last hospital where she applied to practice.
Our bylaws expressly state that a misrepresentation, misstatement or omission “shall constitute cause for automatic and immediate rejection of the application resulting in denial of appointment and clinical privileges.” Based on this language, the Chairperson of the Credentials Committee thinks we should deny her application. What do we do?
Do you think all medical staff bylaws are the same? Then join us for our new program Credentialing for Excellence: Advanced Tools & Techniques. At the program, you’ll get a chance to play “I Wish I Had Your Bylaws,” a provocative game that pits the bylaws of two hospitals against each other in a series of real life scenarios. There’s a prize for everyone who plays: excellent bylaws language that you can take home with you. Click here for a complete copy of the brochure.
ANSWER: When there are concerns about an applicant there is almost always a better option than “denial.” A denial of an application triggers a right, in the applicant, to the hearing and appeal process, a process that is time-consuming, contentious and expensive. And if the recommendation for denial is upheld by the Board, it is reportable to the National Practitioner Data Bank and the State Board of Medicine.
Before the Credentials Committee recommends denial, it should explore, in detail, any and all issues that have been identified. Remember, the burden should be kept on the applicant to resolve all questions and concerns. This means that the applicant should be required to explain the misrepresentation about never having withdrawn an application. You can also require the applicant to provide documentation pertaining to the withdrawal of the application.
And remember to call the individuals who have provided peer references, even if there are no red flags in their response. People will often provide information over the phone that they will not put in writing.
The Credentials Committee should hold off taking any action on this application. Continue to gather information from the applicant and from others and keep the burden on the applicant.
And when you get a chance, revise your bylaws! The bylaws should give you an option administratively to stop processing an application when there is a misrepresentation or omission.
QUESTION: We’ve taken steps in the last year to change the perception of peer review from punitive to educational. We’ve eliminated scoring, increased the use of educational sessions to share lessons learned from the review process, and created accountability for fixing system/process concerns that are identified during the review process. Overall, our physicians feel the process is much improved. However, there are occasional holdouts who refuse to provide input when their cases are under review, and who seem intent on simply delaying the review process. What can we do?
ANSWER: Obtaining timely and meaningful input from the physician under review is an essential element of an effective and fair professional practice evaluation (“PPE”) process. Giving the physician an opportunity to provide input enhances the credibility of the process and encourages everyone involved to think critically about a case.
There are several fundamental rules to obtaining input. Most importantly, PPE policies should state that no “intervention” (such as an educational letter or a performance improvement plan) will occur until a physician has been given the opportunity to provide input. Also, physicians should be given the opportunity to provide both written and verbal input by meeting with those conducting a review. Input can be obtained at any point in the process, and multiple requests for input may be made.
If a reviewer has questions about a case, the physician should be notified of the concerns. Any letter to the physician must be carefully drafted to avoid giving the impression that a decision about the case has already been made.
The PPE policy should also make clear that a physician cannot stop the review process by not providing input. PPE policies should state that individuals who fail to provide input when requested by the PPEC can be deemed to have temporarily and voluntarily relinquished their clinical privileges until the input is provided. Such relinquishments do not entitle the physician to a Medical Staff hearing or appeal, nor are they reportable to any federal or state government agency. Instead, they are merely an administrative “time-out” until the physician provides the requested information.
To learn more about PPE best practices, join Paul Verardi and Phil Zarone by dialing in for the upcoming audio conference: Professional Practice Evaluation Policy — Special Topics on July 11.
QUESTION: I am a new physician CEO at a physician group affiliated with a hospital system. I get calls and e-mails from physicians directly when they have concerns about the communication/behavior/responsiveness of other physicians, before any medical staff involvement. There is an agreement to share information between medical staff committees and the employer group. How should I respond?
ANSWER: It would be a good idea to develop a policy for the group as to how issues are triaged and addressed. If the issues primarily involve conduct in the hospital setting, as opposed to employment, you could still choose to handle them initially within the group process (and consider subsequent reporting if the issue is not resolved) or you could report the concerns to the appropriate individual in the hospital. That may be the CMO, a medical staff officer, or Leadership Council as described in a Medical Staff Professionalism Policy.
While it may be suitable for you to handle some issues in an informal way by your personal immediate involvement, too much of that style of intervention may not be a good use of your time. Many issues are best directed through appropriate channels within either the group or the hospital/medical staff. (That doesn’t necessarily mean too much bureaucracy!) There may be more to a story than what is reported by one person; often, more fact-gathering is needed.
For issues that implicate medical staff performance, in some systems, a group’s CMO may be appointed to a hospital medical staff peer review committee or may be invited to the Leadership Council or similar group. A Leadership Council is commonly composed of the officers, hospital CMO and key support staff, and can convene regularly or when an issue involving the hospital practice or behavior of an employed physician is to be triaged.
QUESTION: What’s this I hear about the penalties for EMTALA violations being doubled? Haven’t we suffered enough?
ANSWER: I agree about the suffering, but sorry, that’s not going to affect the doubling of the EMTALA civil monetary penalties.
As difficult as EMTALA can be, until a few months ago, it had actually been years since the federal government issued a new EMTALA regulation, guideline or bulletin. But that’s not a complaint; EMTALA compliance is difficult enough with the existing rules, let alone any new ones.
So it’s interesting that the Office of Inspector General (the “OIG”) came out in December 2016 with some new regulations. The OIG revised its regulations concerning penalties, including civil monetary penalties (“CMPs”), that it can impose for EMTALA violations. These new rules were released in the OIG’s Final Rule concerning Medicare and State Health Care Programs; Fraud and Abuse; and Revisions to the OIG’s CMP Rules.
These new OIG regulations didn’t create new EMTALA responsibilities to be carried out. Instead, they simply addressed the OIG’s penalty rules. The most eye-popping of these concern the amount of the CMPs, now adjusted per inflation.
By the Act itself, which went into force in 1986, the OIG can fine hospitals with 100 beds or more and physicians up to $50,000 per EMTALA violation. Hospitals under 100 beds can be fined $25,000 per violation.
Noting that those figures have never been adjusted for inflation over the past 30-plus years, the OIG adjusted. Now, hospitals with 100 beds or more and physicians can be fined up to $103,139 per violation. Hospitals under 100 beds can be fined up to $51,570 per EMTALA violation.
The OIG did not revise the EMTALA-stated penalty amounts themselves; the EMTALA regulations still describe CMPs for $50,000 and $25,000. This is an inflation-adjusted increase detailed in another HHS-published document regarding CMPs. (A $50,000 penalty doesn’t get you as much in 2017 as it did back in 1986.)
The OIG has not suddenly become “penalty hungry” when it comes to hospitals, on-call physicians, and other EMTALA matters. The OIG suggested these clarifications in proposed regulations it issued back in May 2014. Both the Affordable Care Act and the Medicare Prescription Drug, Improvement and Modernization Act enhanced the OIG’s authority to impose CMPs and to exclude individuals from participating in federal health care programs. This was the OIG taking advantage of those two statutes to clean up and clarify its EMTALA penalty rules.
As the new CMPs basically double the penalty amount, it’s also important to understand that the OIG’s CMPs apply to each EMTALA violation, and a hospital or a physician can violate EMTALA more than once in the care of a single patient. It’s not uncommon for an EMTALA wrongdoing to include multiple violations. With CMPs of now roughly $100,000 per EMTALA violation, a hospital can find itself with the potential for some pretty stiff fines.
QUESTION: Last week we had a 37-week pregnant patient present to our emergency department in active labor. Her obstetrician was not on our medical staff and the on-call obstetrician was contacted to come in. In the course of the phone call between the ED physician and the on-call obstetrician, the obstetrician realized that she knew this patient, and she informed the ED physician that she had treated her in the past but had terminated that physician-patient relationship the previous year because the patient had been noncompliant in connection with her previous pregnancy and related complications. The on-call physician didn’t want to come in to treat the patient because she had gone through a formal process of sending the patient a letter, with the required advance notice, and didn’t want to reestablish that relationship. Does the on-call physician really have to see a patient in this situation? It seems unfair.
ANSWER: Unfortunately, yes. While it’s not a popular answer and it does seem unfair from the perspective of the obstetrician in your situation who likely did everything required of her to formally terminate that physician-patient relationship – a process that usually requires written notification with at least 30 days’ advance notice (and sometimes longer in the case of a pregnant patient) – the Emergency Medical Treatment and Active Labor Act (“EMTALA”) requirements trump the fact that the obstetrician terminated the physician-patient relationship. In this case, the obstetrician is responding to the ED as the on-call physician, and she has to respond.
In the absence of a statute like that in effect in Virginia, which specifically provides that a physician-patient relationship created by a response to the ED by an on-call physician is “deemed terminated” upon the discharge of the patient from the ED or, if the patient is admitted, upon the patient’s discharge from the hospital and the completion of any follow-up care prescribed by the on-call physician, the obstetrician will likely have to go through the advance notice and termination process again.
The situation would be different if this patient presented to the ED and told the ED that the obstetrician was her treating physician. In that case, when the ED contacted the obstetrician to inform her that one of her patients was in the ED, the obstetrician would have been able to inform the ED that she had terminated the physician-patient relationship, and the ED would then have resorted to contacting the on-call obstetrician.
QUESTION: We are concerned about the language in our Medical Staff Bylaws that states that notification to an individual under investigation may be delayed if informing him or her immediately would compromise the investigation or disrupt the operation of the Medical Staff or the Hospital. Doesn’t a physician under investigation have a right to know immediately when a resolution has been made to conduct an investigation?
ANSWER: We understand your concern about delaying the notification to the individual. The reality is that, in most cases, the individual will be given notification as soon as possible once the MEC has decided to commence an investigation. However, there may be some situations where Medical Staff leaders are concerned that the individual might take some action (i.e., tamper with evidence or harassment of others involved) that would compromise the investigation or put others at risk of retaliation. In these rare situations, we recommend having Bylaws language that gives the MEC the discretion to delay notifying the individual about the investigation.
QUESTION: The Medical Executive Committee disagrees with the way the Credentials Committee is managing a particular issue that has come before the Credentials Committee for consideration. Since the MEC has higher authority in the medical staff leadership structure, can it direct the Credentials Committee on how to manage the issue? Or is the Credentials Committee free to proceed as it sees fit?
ANSWER: While it is true that the Medical Executive Committee is the “supreme” authority in terms of the medical staff leadership, most medical staffs are structured with built-in checks and balances and roles and responsibilities that are assigned to specified individuals or committees. While the Medical Executive Committee may exercise oversight over all medical staff activities, that does not mean it can intervene any time that it disagrees with the way that something is being done. So, if the Credentials Committee is performing assigned functions, it has some discretion to determine how to perform those functions – provided that it abides by the Medical Staff Bylaws and other relevant policies.
The Medical Executive Committee can offer suggestions, but has no authority to intervene with the exercise of the Credentials Committee’s discretion by telling it how to perform its duties (again, unless the Committee is violating the Bylaws or a policy or acting unlawfully). This does not mean that the MEC is powerless, however. Remember that the activities of all medical staff committees are subject to oversight of the MEC. So, if the matter is one in which the Credentials Committee is making a recommendation to the MEC (such as a recommendation for a waiver of threshold criteria, of criteria for new clinical privileges, of criteria for clinical privileges that cross specialty lines, of appointment and privileges for an applicant, etc.), then the MEC can take the opportunity, during its review, to “correct” any mistakes it thinks the Credentials Committee may have made. That could mean gathering more information, if the MEC feels the Credentials Committee did not do enough to scour an applicant’s background. It could mean reviewing the matter anew, if it felt the Credentials Committee did not adequately address conflicts of interest during its review. It could mean talking to an applicant, if it felt the Credentials Committee did not give the applicant ample opportunity to be heard. The list goes on and on. The point is, the MEC – as a subsequent level of review – has the opportunity to set right a multitude of perceived wrongs.
On a related matter, when medical staff leaders do not see eye-to-eye about how to manage day-to-day medical staff activities, that can indicate that it’s time for more education about the roles and responsibilities of hospital and medical staff leaders, as well as required credentialing and peer review functions (and the risks of not completing those functions well). Leaders who are well-informed about the content of their Bylaws, the Credentials Policy, and related Medical Staff policies are likely to be more consistent in how they perform their leadership functions. All medical staff leaders should also receive education about legal protections for leaders, the risks to legal protection (such as frolic and detour), and ways to maximize legal protections (e.g., through management of conflicts of interest, good documentation, reasonableness when dealing with other practitioners, and following a “patient safety first” rule of thumb).