Author: Courtney Patterson

August 7, 2025

Posted on by Courtney Patterson

QUESTION:
One of our doctors had his Medicare billing privileges revoked for a year.  Does that mean we have to terminate his contract and no longer accept referrals from him?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
No.  Revocation of Medicare billing privileges is not the same as being excluded from Medicare.  The regulations governing situations where a provider’s Medicare billing privileges have been revoked (42 CFR §424.555) say that Medicare will not pay for services furnished by a provider whose billing privileges have been revoked.  That regulation goes on to say that the provider could incur criminal liability if the provider tried to bill Medicare.

This is different than the case of a provider who is formally excluded from participation in Medicare.  A hospital can incur civil monetary penalties if it continues to contract with an excluded provider and is also prohibited from billing Medicare for hospital technical services referred by an excluded provider.  These prohibitions do not apply when a provider like a physician simply has his or her Medicare billing privileges revoked.

Depending on the situation, a provider may be able to ask Medicare to reconsider the revocation or reinstate billing privileges before the revocation period expires pursuant to 42 CFR §498.22.

If you have a quick question about this, e-mail Dan Mulholland at DMulholland@hortyspringer.com.

July 17, 2025

Posted on by Courtney Patterson

QUESTION:
Is our responsibility under EMTALA complete once we conduct an Emergency Screening Exam and determine that since we do not have the ability to treat the patient, the patient will be transferred to another hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
No.  There are two separate duties under EMTALA – the duty to conduct an Emergency Medical Screening Exam and a duty to stabilize the patient – your obligations under EMTALA are not complete until both duties have been satisfied in a reasonable manner.

A hospital must satisfy EMTALA’s first duty by providing an appropriate Medical Screening Examination (“MSE”) to any individual who comes to the hospital’s Emergency Department requesting examination or treatment.  While an MSE is not required to be conducted by a physician, if a non-physician will conduct the MSE, they must be qualified, and have been approved by the Board, to perform an MSE.

It is important to note that EMTALA does not impose a national standard of care on how to screen patients.  Therefore, a hospital is not required to provide an MSE that is comparable to an MSE offered in other hospitals, nor is a hospital required to provide more than an initial MSE.  However, if the screening is so cursory that it is not designed to identify a patient’s acute and severe symptoms to alert the ED personnel of the need for immediate medical attention to prevent serious bodily injury, the hospital may be found to have failed in its duty to conduct an MSE.

Once the MSE determines that the patient is suffering from an emergency medical condition, the next obligation that EMTALA imposes on the hospital is to provide such further medical examination and treatment as may be required to stabilize the patient’s emergency medical condition, either for admission or to transfer the patient to another medical facility.  (BREAKING NEWS – be sure to read next week’s HLE as a court just found, for what we can determine is the first time, that a court has disagreed with HHS’s long held position that EMTALA’s obligations end once a patient is admitted to a hospital.)

EMTALA imposes strict guidelines on patient transfers.  A patient in an emergency medical condition may be transferred to another medical facility if after being informed of the risks of transfer and of the hospital’s treatment obligations, the individual requests to be transferred (“patient-initiated transfer”), or based on the information available at the time of transfer, the physician determines that the medical benefits to be received at another medical facility outweigh the risk to the patient of being transferred (including, in the case of a woman in labor, the risks to the unborn child) and a certification to this effect is signed by the physician (“physician-initiated transfer”).

Where a transfer is permitted, the hospital’s duty to stabilize the patient prior to transfer requires the hospital’s ED to provide “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.”

Therefore, a hospital may not transfer a patient with an emergency medical condition which has not been stabilized.  The hospital’s duty under EMTALA to “stabilize” the patient prior to transfer includes: (i) appropriate treatment of the patient while awaiting transfer: (ii) taking the steps reasonably required to minimize the risks associated with the transfer; and (iii) making sure that the patient is transported in an appropriate manner that takes into account the patient’s emergency medical condition.

A patient will have a claim against the hospital for a breach of EMTALA’s duty to stabilize pending transfer where the patient is able to show that the hospital did not satisfy this duty.

If you have a quick question about this question, please e-mail Henry Casale at hcasale@hortyspringer.com.

July 10, 2025

Posted on by Courtney Patterson

QUESTION:
We are having a hard time getting medical staff members who are willing to serve on committees and currently have a significant number of medical staff spots that we need to fill on our infection prevention committee, performance improvement committee, tissue committee, and the pharmacy and therapeutics committee.  One idea was to try and consolidate some of these functions so there are fewer committees.  Is this doable? Advisable?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of the fast answers – (1) likely yes, and if so, (2) absolutely yes!  One of the biggest concerns that we hear being raised these days is that the medical staff leadership pool – whether that means individuals willing to serve as medical staff officers, department chairs, committee chairs, and even committee members – is shrinking dramatically.  Sometimes it’s difficult to populate even the committees that fulfill the primary “medical staff functions” like credentialing, privileging and peer review, often leaving very slim pickings for the ancillary hospital committees.

In terms of whether it’s “doable,” one thing to verify first is what your state hospital licensing regulations may require in terms of medical staff or hospital-specific committees.  While most state regulations just speak in terms of specific functions that have to be fulfilled – often by a committee – some (here’s looking at you Pennsylvania!) do specify a number of separately named committees that hospitals are expected to maintain.

However, in the absence of any regulatory constraints, the manner in which you decide to assign the various functions that have to be met within the hospital to different committees is purely discretionary.  It has become common to see a single overarching “quality committee” that fulfills the functions that used to be performed by separate infection control, P&T, tissue/transfusion, performance improvement, and quality committees.  The key is that you want to ensure that the necessary functions are being fulfilled and that your committees – whether one, two or ten – are organized in such a way as to ensure that occurs.

If you have a quick question about this, e-mail LeeAnne at LMitchell@hortyspringer.com.

July 3, 2025

Posted on by Courtney Patterson

QUESTION:
In our professional practice evaluation process, we sometimes adopt a performance improvement plan (“PIP”) that includes proctoring, second opinion consultations, and/or prospective case review.  In our PIPs, we try to include the kind and the number of cases that have to be reviewed.

The last several times we have done this, however, the physician stopped practicing at the hospital and never completed the PIP. This has become an issue at reappointment.  Any suggestions??

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question, and it is an issue we see quite a bit.  We have a couple of suggestions for your consideration.  In addition to the number and kinds of cases to be reviewed, it is a good idea for the PIP to include a time frame for its duration.  So, for instance, the PIP might say something like this:

For at least the next ten major gynecology procedures you perform at the Hospital, you must arrange to have a proctor who has clinical privileges to practice at the Hospital (“Proctor”) and who has been approved in advance by the Chair of the Peer Review Committee or the Chief Medical Officer.  The Proctor must be present in the OR before the case is started and must remain in the OR for the duration of the case.

For at least the next six months, the Peer Review Committee will conduct a retrospective review of your major gynecology procedures to evaluate compliance with each element of the PIP.  The Peer Review Committee will share the results of the review with you, and you will be invited to provide input.

At the end of six months, the Peer Review Committee will review the results of the PIP and meet with you to discuss them.  Thereafter, it will recommend whether the PIP has been successfully completed, whether it should be continued or modified, or whether some action consistent with the Medical Staff Bylaws or other Medical Staff rules or policies should be considered.

Although we don’t always include this in the original PIP, you raise a great question about a practitioner who agrees to the PIP but who then fails to actively participate in or complete it.  If you find yourself in this situation, where after the initial term of the PIP, the practitioner has not had any, or very few cases completed, you could adopt a revised PIP with language like this:

It has been more than six months since you agreed to abide by the PIP.  Critically, you have failed to complete any of the clinical components outlined in PIP.  Specifically, you were required to have 10 ten major gynecology procedures proctored.  To date, you have not performed any of these cases.  Therefore, this Revised PIP will be in effect for an additional six months.  If you fail to complete the PIP at that time, such will be accepted as a voluntary resignation of your appointment and clinical privileges.

It is also very important to refer to the PIP if the practitioner is reappointed during its term. Too often, a standard reappointment letter will be sent to a practitioner who is subject to a PIP.  This is not only a missed opportunity to reinforce the existence of the PIP, but it also sends very mixed messages.  So, make sure the department chair, Credentials Committee, Medical Executive Committee, and Board have access to the PIP when they are making reappointment decisions.  The reappointment letter is a perfect place to reinforce the terms of the PIP and provide notice of consequences if the terms of the PIP are not timely completed.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

June 26, 2025

Posted on by Courtney Patterson

QUESTION:
Can you help with guidelines for taking minutes at a meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes – here are the “Do’s” for taking minutes:

  1. DO – write down the name of the committee that’s meeting.
  1. DO – write down the date of the meeting.
  1. DO – list who’s in attendance, and who’s absent.
  1. DO – list if there are any guests or visitors at the meeting.
  1. DO – note the time the meeting was called to order, who called it to order, and the time it was adjourned.
  1. DO – note whether it’s a regular or special meeting of the committee.
  1. DO – note that if it’s a special meeting, that notice was given to the committee members, and the way notice was given (mail, e-mail, personal delivery, etc.).
  1. DO – note whether a quorum was present (this eliminates the argument that the action of the committee wasn’t valid because of the lack of a quorum).
  1. DO – note whether the previous minutes were read and approved.
  1. DO – 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.  If the result of the vote is written down in black and white at the time it’s taken, there is little room to argue in the future that it was inaccurate.

…and here are the “Don’ts”:

  1. 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 don’t mean.  Or that can be misinterpreted.  Or that was meant as a joke, but looks sinister in black and white.  If it’s recorded in the minutes, it’s there forever, and may turn up again.  There isn’t really a need to record the details of a discussion.  What’s important is the vote, the committee’s action.

But, with every rule, there’s 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 against 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 – physician was disruptive on this date, this date and this date and did this and this and this.  The reasons can be explained, but, comments shouldn’t be attributed to any one individual.

  1. Don’t record how each member voted, unless a committee member wants his/her vote recorded. There’s also an exception to this rule.  When a committee’s going to make an adverse recommendation and a competing physician is on the committee, the minutes should reflect that the conflict of interest principles were followed (Dr. Jones fully answered the committee’s questions, left the room prior to the vote, the vote was taken, and Dr. Jones returned to the room).
  1. Don’t record who made a motion and who seconded them.
  1. Don’t record who said what to someone else.
  1. Don’t record personal remarks unrelated to the committee’s business. For example, when discussion is regarding revocation of privileges, don’t record “Dr. Jones said that Dr. Smith has too many fancy cars.”  The only thing that’s relevant is Dr. Smith’s competence.  So record “The committee recommended that Dr. Smith’s surgical privileges be revoked because of competence concerns.”

If you have a quick question about this, e‑mail Nick at ncalabrese@hortyspringer.com.

June 19, 2025

Posted on by Courtney Patterson

QUESTION:
A physician smelled of alcohol and was behaving oddly during rounds.  The physician refused to undergo a screening test, so the Medical Staff leadership imposed a precautionary suspension.  Is there a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Yes!  First, hospitals should have a Practitioner Health Policy that governs health issues affecting privileged practitioners.  Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event.  A Practitioner Health Policy allows Medical Staff leaders to adopt practices and procedures that work in your setting and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above.  The first step is for the Policy to identify who may respond to handle such situations.  We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment.  Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO).  Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues).  This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others.  Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension.  A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague.  A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

If you have a quick question about this, e-mail Mary at MPaterni@hortyspringer.com.

June 12, 2025

Posted on by Courtney Patterson

QUESTION:
One of the members of our Bylaws Committee said that she heard that we shouldn’t be including our hospital’s Institutional Review Board (“IRB”) in the Bylaws with all of the other medical staff committees even though this is where it has always lived at our hospital.  Is that true?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes.  The federal Food and Drug Administration regulations pertaining to IRBs, 21 C.F.R. §56.101 et seq., define an IRB as “any board, committee, or other group formally designated by an institution to review, to approve the initiation of and to conduct periodic review of biomedical research involving human subjects.”  (Emphasis added.)  The Department of Health and Human Services’ regulations echo the “institutional” aspect of the formal designation of IRBs (45 C.F.R. Part 46).  Federal regulations require the IRB to be a committee formally designated by a hospital’s Governing Board to review biomedical research involving human subjects at the hospital.

This issue gained momentum in research audits performed by both the Office of Human Research Protections and the Food and Drug Administration in the recent past with the relevant agency taking issue with the fact that the hospitals included their IRBs as one of several “medical staff committees” that lived in a medical staff governance document like the medical staff bylaws.  The auditors pointed generally to the regulatory language, that it is an institutional responsibility to maintain an appropriate IRB, not a medical staff responsibility.  As a practical matter, the concern is that (while very unlikely) if the IRB procedures need to be revised because of a regulatory change, the medical staff could refuse to do so, as is contemplated by the amendment process to these rules.  By comparison, if the IRB is a hospital committee, hospital administration and/or the Board could implement a change on its own action.  Again, while the likelihood of a Medical Executive Committee or a medical staff as a whole acting in such an obstructionist manner is very slim, in the eyes of the audit agencies, it is a valid concern.

Therefore, we recommend that the IRB be created by a Board resolution and thereafter function as a committee of the hospital, rather than the medical staff, with its independent authority derived from the Board.  There may be substantial overlap of the IRB membership with that of a medical staff committee.  However, the IRB should be constituted as a separate committee of the Board in accordance with the membership requirements set forth in the federal regulations.

If you have a quick question about this, e-mail LeeAnne at LMitchell@hortyspringer.com.

June 5, 2025

Posted on by Courtney Patterson

QUESTION:
We are in a two-hospital town and our neighbors across town have become lax with their 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 FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:

Unfortunately, the answer is yes.  While a receiving hospital has the right to refuse a request for a “lateral” transfer, if the receiving hospital has “specialized capabilities” (and capacity), 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 and on-call physicians in a difficult position and continues to make EMTALA compliance a challenge.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

May 29, 2025

Posted on by Courtney Patterson

QUESTION:
Can a hospital operating multiple campuses under a single CCN number have an exclusive contract with a physician group to exercise clinical privileges at one campus and an exclusive contract with another group to exercise privileges at another campus?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The guidance we have received over the years has been that if a Medicare‑certified hospital has multiple campuses, clinical privileges cannot be limited solely to one campus.

This guidance is based on reading the Medicare Conditions of Participation and the official Interpretive Guidance issued by CMS in conjunction with the provider‑based rules.  The COPs and Interpretive Guidance state:

42 CFR §482.22 Condition of Participation: Medical Staff
The hospital must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital.

Interpretive Guidelines §482.22
The hospital must have one medical staff for the entire hospital (including all campuses, provider‑based locations, satellites, remote locations, etc.).  For example, a multi‑campus hospital may not have a separately organized medical staff for each campus.  On the other hand, in the case of a hospital system, it is permissible for the system to have a unified and integrated medical staff (hereafter referred to as a “unified medical staff”) for multiple, separately certified hospitals.  The medical staff must be organized and integrated as one body that operates under one set of bylaws approved by the governing body.  These medical staff bylaws must apply equally to all practitioners within each category of practitioners at all locations of the hospital and to the care provided at all locations of the hospital.  The medical staff is responsible for the quality of medical care provided to patients by the hospital.

The provider‑based rules state:

42 CFR §413.65 (d) Requirements applicable to all facilities or organizations.  Any facility or organization for which provider‑based status is sought, whether located on or off the campus of a potential main provider, must meet all of the following requirements to be determined by CMS to have provider‑based status:

***

(2) Clinical services.  The clinical services of the facility or organization seeking provider‑based status and the main provider are integrated as evidenced by the following:

(i) Professional staff of the facility or organization have clinical privileges at the main provider.

This essentially means that while a hospital with multiple campuses could have an exclusive contract that limits the exercise of clinical privileges to members of the group at all campuses and provider‑based locations, an exclusive contract limiting the exercise of privileges to physicians in the contracting group to one campus would not work since other physicians with privileges at the other campuses could claim that they have the right to exercise those privileges system‑wide.

Aside from the CMS rules, a hospital would be bound by exclusivity provisions in existing hospitals, so if there is an exclusive contract in place covering all locations, the hospital would be in breach of contract if it allowed physicians outside the group to exercise clinical privileges at another hospital.

The risk of non‑compliance with this interpretation of the rules is most likely a citation on a survey (either a routine one or one triggered by a complaint) which could be easily fixed by allowing privileges to be exercised at each campus.

Moreover, notwithstanding the rule that privileges extend to each campus, a physician can always choose to only practice at one campus, and if the physician is employed by the hospital or health system, the employer could tell the physician that he or she must limit the exercise of privileges to specific campus(es).

If you have a quick question about this, e‑mail Dan Mulholland at DMulholland@hortyspringer.com.

May 22, 2025

Posted on by Courtney Patterson

QUESTION:
Can we add advanced practice professionals to our on-call schedule for our emergency department?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Short answer:  nope.  Including APPs on the on-call list is prohibited by the Emergency Medical Treatment and Labor Act (“EMTALA”).  Under EMTALA, hospitals with emergency departments are required to provide Medical Screening Examinations to anyone who presents to the hospital seeking emergency care, regardless of their ability to pay.  A key component of EMTALA compliance is the requirement that hospitals maintain a list of on-call physicians who can provide the necessary treatment to the patient.  Specifically, CMS guidelines state, in part:

The list of on-call physicians must be composed of physicians who are current members of the medical staff or who have hospital privileges.  If the hospital participates in a community call plan, then the list must also include the names of physicians at other hospitals who are on call pursuant to the plan.  The list must be up-to-date, and accurately reflect the current privileges of the physicians on call.  Physician group names are not acceptable for identifying the on-call physician.  Individual physician names are to be identified on the list with their accurate contact information.

CMS recognizes that advanced practice professionals, like physician assistants and nurse practitioners, are increasingly integral to emergency department care and, therefore, can perform medical screening examinations as “Qualified Medical Personnel (QMP)” within their scope of practice and in accordance with hospital bylaws.  Moreover, if permitted under hospital policy, the on-call physician may send an APP as the physician’s representative to appear at the hospital and provide further assessment and stabilizing treatment.  However, the on-call physician remains ultimately responsible for providing the necessary care, regardless of who appears in person.

It is also important to note that, in the event the ED physician disagrees with the on-call physician’s decision to send an APP and, instead, requests the on-call physician to present to the ED, then the on-call physician is required under EMTALA to appear personally.  Therefore, it’s recommended that the decision to send an APP be made in collaboration with the ED physician.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.