QUESTION:
At the Complete Course for Medical Staff Leaders, you mentioned the importance of transparency and meaningful notice to applicants, members of the medical staff, and other practitioners who have been granted privileges.  What is the obligation to send written notice to an applicant that a waiver process is available, a waiver request has been granted, and/or a waiver request has been denied?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Transparency in medical staff affairs is not only about ensuring medical staff members and other practitioners with privileges have access to Medical Staff Bylaws and other medical staff policies and rules and regulations, and are notified to any major changes to those documents.  It also includes providing meaningful and timely notice to applicants and practitioners about matters involving their credentialing and peer review.  This includes providing notice that an application is not going to be processed, as well as the reason why (whether it’s because the applicant has requested clinical privileges that are not available at the hospital, because the applicant does not satisfy the threshold eligibility criteria set forth in the Medical Staff Bylaws or Medical Staff Credentials Policy, or because the application is incomplete – to name just a few reasons).

Many hospitals and medical staffs choose to include in the Medical Staff Bylaws (or Credentials Policy) a process for requesting a waiver of one or more of the threshold eligibility criteria, in the event an applicant fails to satisfy the criteria and nevertheless wishes to receive additional consideration and have an application subjectively considered.  Generally, waivers are considered only if the applicant provides substantial evidence showing that there are exceptional circumstances and that the applicant’s qualifications (clinical performance, professionalism, etc.) are just as exceptional, if not more, than other individuals who satisfy the criteria for which the applicant is requesting waiver.

While most hospitals and physician leaders agree that it is important to notify the applicant if a waiver request is denied, we are occasionally asked whether it is necessary to provide the reason for the denial.  Provided you have good waiver language written into your Bylaws/policies, the burden is on an individual requesting waiver to demonstrate that waiver is appropriate and an exception to the general rule of non-eligibility/ non-consideration should be made.  Therefore, if the MEC and Board have determined that the applicant has not met the burden of demonstrating they are an appropriate candidate for a waiver, it should suffice to simply state that after considering all of the information submitted by the applicant, the Board determined that a waiver is not appropriate and, in turn, the application cannot be processed further.

Should you also notify an applicant in writing if a waiver is granted?  This question is rarely asked since, in most scenarios, the applicant is happy to receive a waiver and, in turn, there are rarely disputes about waivers that have been granted (rather than denied).  Nevertheless, there are a couple of reasons that you may wish to consider providing notice to the applicant when you grant a waiver:

• First, whenever a waiver is granted (or denied), it is a good idea to articulate and document the reason, in order to create institutional history of all waivers that have been considered and the outcome. This is important for tracking whether the hospital is methodically upholding the threshold eligibility criteria and for ensuring consistency with respect to any waivers granted/denied (e.g., are similarly situated requestors being treated similarly?).  Ultimately, an eligibility process is administrative – rather than subjective – only if the threshold eligibility criteria are objective and those criteria are applied consistently to individuals.  So, having a record of consistent application helps the hospital in the long run.  Of course, you could create the documentation through meeting minutes or other records of the action taken.  But, in our experience, the articulation/documentation of waivers often falls through the cracks.  Adopting a process of notifying the applicant whenever a waiver is granted might help to close that gap.

• Perhaps more importantly, however, notifying an applicant of the grant of a waiver also provides an opportunity to document (and inform the individual) of any time limits or other conditions associated with the waiver.

For example, if an individual is granted a waiver of an MOC (maintenance of board certification) requirement due to an exceptional circumstance that prevented them from completing the MOC requirements during their previous appointment term (e.g., extreme illness or family emergency), the hospital might grant a short-term waiver (e.g., one appointment term), to be revisited at the time of the next reappointment cycle.  If the waiver will be temporary, rather than permanent, it is important to notify the applicant/practitioner so that they will have realistic expectations and not be caught off guard when the criterion is applied in the future.

The same is true for any conditions that may attach to the waiver.  For example, if you have decided to grant a waiver of a threshold eligibility criterion requiring recent clinical experience exercising the requested privileges in a facility of comparable acuity, that waiver might be conditioned on the individual complying with a re-entry plan that includes continuing medical education and/or observation/shadowing to be completed prior to commencing clinical activities at the hospital, requirements for proctoring, consultation, or serving as an assist when initially commencing clinical activities at the hospital, and/or other FPPE activities.  If the waiver is conditional on the applicant agreeing to – and complying with – those conditions, it is important to notify the applicant and make it clear that the waiver may be forfeited (with the individual then failing to be eligible for continued medical staff appointment/privileges) if they do not comply.

If you have a quick question about this, e-mail this week’s editor, Rachel Remaley, at rremaley@hortyspringer.com.