Author: Courtney Patterson

August 13, 2026

Posted on by Courtney Patterson

QUESTION:
While conducting an affiliation verification for a recent applicant, we learned that he is subject to a one year “Conditional Appointment” at another hospital where he has held privileges for 12 years.  When this application goes to the Credentials Committee next week, does the failure to disclose the Conditional Appointment constitute grounds to deny the application and, if so, do we have to give the applicant a hearing?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Should you be interested and/or concerned that an applicant for Medical Staff membership and/or clinical privileges is subject to a “Conditional Appointment” at another hospital?  Yes, of course.  If another hospital has some sort of question or concern about that individual (which can be the only explanation for a Conditional Appointment), that is something you should know about before you proceed.  So, at the very least you will want to place this application on hold and not process it any further until you figure out more details (this means the application should be taken off the agenda for the upcoming Credentials Committee meeting).

With that said…whether or not the failure to disclose, in and of itself, is worthy of any sort of action depends on whether the applicant had a duty to disclose the Conditional Appointment to you.  And that depends on what your application forms ask.  Do your forms simply ask whether applicants have ever had Medical Staff membership or clinical privileges revoked, restricted, denied, or suspended?  If so, the application failed to ask about Conditional Appointments and, in turn, the applicant would have been justified in answering, “No.”  If, on the other hand, your application also asks if applicants are currently, or have ever been, under investigation, subject to a formal performance improvement plan, been subject to written conditions, or been subject to a short-term or conditional term of Membership or privileges, then the applicant clearly should have answered, “Yes.”

The questions on the application form should be a reflection of the information that your hospital and its credentialers want to know.  This means the questions should be worded to obtain, at minimum, information about all of the threshold eligibility criteria set forth in your Medical Staff Bylaws and/or Credentials Policy.  In addition, application forms are often more broadly drafted to ask about additional matters that may fall outside of the threshold eligibility criteria, but still be of interest when considering the applicant’s qualifications.  For example, if the threshold criteria simply stated that an applicant may have never been convicted of, or pled guilty or no contest to, a felony, your application form may still ask the applicant about any convictions or pleas for both felonies and misdemeanors.

Once you have determined whether the applicant’s failure to disclose the Conditional Appointment is actionable, the question then turns to whether the appropriate action is for the Credentials Committee to deny the application.

The appropriate response to an omission on an application form depends on your Medical Staff Bylaws, Medical Staff Credentials Policy, and/or related Medical Staff governance documents.  We recommend these documents include provisions stating that if a misstatement or omission is identified with respect to any information provided on an application form or during the course of the application process, the applicant will be provided Notice and be given an opportunity to submit an explanation.  That explanation will then be considered (often by the Chief of Staff and/or CMO) and a decision will be made about whether to process the application further.  The Bylaws/Credentials Policy should clearly state that, in addition, the applicant will then become ineligible to have another application for Medical Staff membership or clinical privileges processed at the hospital (and many organizations go a step further and state that the applicant will also become ineligible to have an application processed at any affiliated entity within the health care system).  The Bylaws/Credentials Policy should be clear that refusal to process an application because of the discovery of an omission/misrepresentation is an administrative matter and that does not constitute an adverse professional review action based on a judgment about the applicant’s competence or conduct (and, in turn, does not result in any hearing rights).

If your organization does not have language stating that omissions and misstatements during the application process result in failure to process the application, then any discovery of an applicant’s failure to disclose credentials will have to be managed like other negative information in the credentialing process.  This may include determining that the application is incomplete while you follow up with the applicant about the discrepancy and combing through the application with a fine tooth comb to make sure that each and every credential has been independently verified with third party original sources (since you know you cannot count on the applicant to provide complete and accurate information about his or her credentials).  Ultimately, if after gathering additional information, you decide to deny the application because you consider the omission to constitute unprofessional conduct, the procedures set forth in the Bylaws for “denials” of applications would apply, including those related to hearings and appeals.

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

July 23, 2026

Posted on by Courtney Patterson

QUESTION:
Is it true that significant changes are coming to the rules for provider-based status locations?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes, it’s true.  Many hospitals operate outpatient clinics, among other things, off-site from the main hospital campus.  If these sites qualify for “provider-based status” under federal regulations, they can bill as part of the hospital and receive a higher level of reimbursement.  Basically, CMS treats an off-site location as a department of the hospital instead of a freestanding facility if it has provider-based status.

Currently, hospitals voluntarily submit a formal declaration, known as an “attestation,” to its Medicare Administrative Contractor stating that it is in compliance with all provider-based requirements (licensure, financial integration and other requirements), and bill under the hospital’s National Provider Identifier (“NPI”).

However, on February 3, 2026, the 2026 Consolidated Appropriations Act (“CAA”) became law.  Section 6225 of the CAA requires hospitals to submit mandatory attestations confirming compliance with Medicare’s provider-based regulations for all off-campus hospital outpatient departments and to obtain distinct NPIs for each such location.  Hospitals that fail to meet both requirements by January 1, 2028, will lose eligibility for that higher level of reimbursement.

CMS has issued proposed regulations and is accepting public comments until August 31, 2026.

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

July 16, 2026

Posted on by Courtney Patterson

QUESTION:
Do you have any recommendations for the appointment of members to and composition of an Ethics Committee?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
When it comes to appointment of members, you should follow whatever your policies require.  If the Ethics Committee is a Medical Staff committee, it’s not uncommon for the Bylaws to instruct that non-ex officio members of such committees will be appointed by the Chief of Staff, in consultation with the Chief Medical Officer.  Sometimes, the Bylaws give the Medical Executive Committee the authority to appoint members to Medical Staff committees.  Nonetheless, the process described in your Bylaws for appointment of members should be followed.  If the Ethics Committee is designated as a hospital committee (which they often are), hospital administration would appoint any non-ex officio members but any of those positions that are for Medical Staff members would, again, be appointed according to the process described in your Bylaws which often isn’t different from the process for appointment of members to Medical Staff Committees (e.g., by the Chief of Staff, in consultation with the Chief Medical Officer).

Regarding the backgrounds of the individuals who should serve on Ethics Committees, Medical Staffs and hospitals often have a general statement such as this:  “The Ethics Committee shall consist of at least three members of the Medical Staff.  In addition, the Chief Executive Officer shall appoint the following representatives:  three nurses, one or more members of the clergy practicing within the service area of the Hospital, and one or more lay members not employed by or affiliated in any capacity with the Hospital.  The Chief Nursing Officer, hospital chaplain, social worker, and legal counsel, and a resident from the family practice group, shall also serve on the committee.”  You could also give preference to individuals who have an interest or past training in bioethics or who are certified by, for example, the American Society for Bioethics and Humanities.

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

July 9, 2026

Posted on by Courtney Patterson

QUESTION:
One of our physicians has been asked to attend a peer review meeting to discuss several cases that raised concerns. The physician has informed us that she intends to bring her attorney to the meeting. Are we required to allow legal counsel to attend?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:

This is a great question and one that comes up frequently during the peer review process. As a general rule, physicians do not have a right to bring legal counsel to routine peer review meetings unless that right is specifically provided by the Medical Staff Bylaws, peer review policy, or applicable state law. Also, if a physician will not be permitted to be accompanied by counsel, the hospital attorney should not attend either.

It is important to remember that a routine peer review meeting is not the same thing as a formal hearing. Peer review meetings are intended to be collegial discussions among physicians regarding clinical care, opportunities for improvement, and any concerns that have been identified. Allowing attorneys to participate can quickly change the nature of the discussion and make it more difficult for the committee to conduct an effective review.

Sometimes physicians express concern that the outcome of the review could ultimately affect their privileges. While that concern is understandable, hearing rights, including any rights related to legal representation, are typically triggered only if a professional review action reaches a stage where formal procedural rights apply. In most organizations, a routine peer review meeting is simply a step in the information-gathering process.

That does not mean the physician is unable to present information. The physician can be invited to submit a written response, provide supporting documentation, or otherwise address the concerns raised by the committee. In fact, committees often receive the most helpful information when discussions remain focused on the clinical issues rather than legal arguments.

For these reasons, hospitals should review their Medical Staff Bylaws and peer review policies to ensure they clearly address whether attorneys may attend peer review meetings and apply those provisions consistently.

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

June 25, 2026

Posted on by Courtney Patterson

QUESTION:
Our MEC is considering action against a physician based on his longstanding and persistent pattern of low-level concerns including untimely H&Ps and op notes, meaningless progress notes, slow responses to calls/texts from staff, and minor professionalism issues.  We know that none of these concerns, standing alone, justify formal action.  But we want to know whether we can rely on these concerns, in the aggregate, to start an investigation, take disciplinary action, or even impose a summary suspension.

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question, and it reflects a pretty common scenario.  As a word of caution, it is important not to react to the proverbial “straw that broke the camel’s back.” Taking action because Medical Staff Leaders are frustrated is understandable, but this can have long-term consequences for everyone, especially if that action is a summary or precautionary suspension.  As one court said in refusing to grant immunity to Medical Staff Leaders: “Once the damage is done, it is hard to undo.”

As a first step, you should chronicle all the concerns that have been raised about the physician going back at least three or four years.  This will help you identify patterns or trends in the kinds of concerns at issue.

As part of this chronology, you also want to include the interventions and actions that have been taken by your Medical Staff Leaders to address the concerns.  Oftentimes, when we dig into the details, we learn that while there has been a steady stream of safety reports or incident reports, there has been little or no follow-up with the physician.  Or perhaps Medical Staff Leaders met with the physician but there is no documentation of those meetings.  Or maybe there were follow-up letters to the physician, but the letters were light and casual and didn’t send a clear message about expectations and consequences if those expectations were not met.

Once you have prepared your chronology, you will have a better idea of the kind and frequency of the concerns that have been raised and the interventions that have been taken.  You will then be in a better position to decide what kind of remediation is needed.

We recommend that before you start an investigation or consider adverse action, including a precautionary suspension, consider the adoption of a performance improvement plan (PIP) (aka focused professional practice evaluation plan or voluntary enhancement plan).  It is important that the PIP be thorough, rigorous, and detailed.  For each concern you want to address, the PIP should identify a proposed condition as a form of remediation.

For instance, if there are concerns about the timeliness of the physician’s documentation, the PIP can incorporate language from your rules and regulations with the required time frames spelled out.  If the concern is about the substance of the physician’s documentation, the PIP might require the physician to complete approved CME on medical record documentation.  If the concerns are about professionalism, the PIP might require the physician to attend a specific course that focuses on the importance of effective communication in a health care setting.

The key to drafting an effective PIP is to be as specific as possible.  It is also important for the physician to understand that their compliance with the elements of the PIP will be monitored on an ongoing basis.  The results of the monitoring should be shared with the physician on a somewhat regular basis.  When the physician knows that they are being monitored, their performance is more likely to improve.

Another important component of the PIP is that it is voluntary.  The physician is given the chance to agree to abide by the PIP.  The PIP should clearly notify the physician that if they refuse to sign the PIP, the matter will be escalated, typically to the MEC, according to the Bylaws documents.

With few exceptions, when presented with the option of a PIP or escalation to the MEC, most physicians agree to the PIP.  And, importantly, we have found that, more often than not, physicians demonstrate substantial compliance with the PIP and improve enough to stay off the radar screen of Medical Staff Leaders.  Sometimes, there are setbacks and the PIP has to be expanded to capture new concerns or extended for longer periods of time.

Occasionally, there is a physician who can’t or won’t comply with the PIP and there are continued violations, and you may have to go down the path of a formal investigation and then disciplinary action.  But in those rare situations, you will have a detailed record that shows you have communicated concerns, expectations, and consequences to the physician.  This detailed record of your effort to work with the physician and the physician’s refusal to abide by clear, objective, established standards will be invaluable should you need to take disciplinary action.

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

June 18, 2026

Posted on by Courtney Patterson

QUESTION:
What is the latest information on the Joint Commission’s initiative for AI use in healthcare?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Following the release of initial guidance to help U.S. health systems implement AI, The Joint Commission recently launched its new Responsible Use of AI in Healthcare (“RUAIH”) certification. The RUAIH certification program is a voluntary program designed to recognize organizations that demonstrate they have the governance, safeguards, monitoring processes, and education in place to use AI responsibly in healthcare settings.

The certification does not validate or certify any specific AI product or tools. Nevertheless, the certification focuses on “the safe, reliable, transparent and ethical use of AI by healthcare organizations.” The Joint Commission believes that the RUAIH certification can help “champion patient-first AI practices” by giving organizations the ability to demonstrate their commitment to patient safety, trust, and quality in AI adoption; “structure adoption and accountability” by providing a framework for governing AI use across an organization; “support responsible stewardship” through supporting transparency, accountability and oversight over AI tools; “effectively manage risk” by proactively addressing AI-related risks; and “build and maintain trust” with patients, caregivers, and other stakeholders.

The certification standards focus on the following areas:  (i) governance; (ii) effective data management; (iii) risk and bias reduction; (iv) monitoring, evaluating, and validating safety performance, effectiveness, and responsible use; and (v) transparency, education, and training. The certification standards address, among other things, whether an organization has processes to protect patient data from unauthorized access or theft; a written organization-wide AI policy that defines criteria for governed AI tools, permitted and prohibited uses, and alignment with existing policies; and education and training of staff on health AI tools used in the organization.

Individual health care organization and health care systems are not required to be accredited by the Joint Commission to apply for the RUAIH certification. Nevertheless, individual health organization and health care systems must meet specific criteria related to establishing processes to support the responsible use of AI.

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

June 11, 2026

Posted on by Courtney Patterson

Submitted at HortySpringer’s Complete Course for Medical Staff Leaders held in New Orleans, April 2026:

QUESTION:
Does a practitioner who has been notified he/she is being investigated have the right to know the names and specialties of the members of the Investigating Committee prior to meeting with them?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is nothing in the Medicare Conditions of Participation for Hospitals that requires a hospital or its medical staff to inform a practitioner of the composition of an investigating committee.  Nor is immunity under the safe harbor provided by the Health Care Quality Improvement Act dependent on providing that information.  The Joint Commission accreditation standards also are silent on this matter.  So, whether you must inform a practitioner of the identity of the members of an investigating committee is dependent on whether your state law requires it (off the top of my head, I cannot think of a single state that does…but it’s worth checking the detailed provisions governing peer review in your state hospital licensing regulations just to make sure because some states have extensive requirements) and whether your hospital’s Medical Staff Bylaws and other governance documents require it.

We generally recommend Medical Staff Bylaw and policy language that requires a practitioner to be informed promptly that an investigation has been commenced (unless specified leaders document good reason for not doing so).  Further, we recommend policy language stating that the practitioner will always be invited to a meeting/interview with the investigating committee prior to it reaching its findings and issuing a report.  This opportunity to be heard is fundamental to fairness of the investigation process.

Most organizations inform the practitioner of the identity of the investigating committee’s members at the time they notify the practitioner of the commencement of the investigation or, alternatively, as part of the notice/request to meet (with that notice also providing information about the nature of the concerns identified during the investigation).  But, that level of sharing is not always required in the Bylaws or policy documents.  Regardless of whether it is required, there is inherent value in providing this level of transparency in the investigation process and we generally recommend it.  Doing so sends the message to all Medical Staff members and other practitioners that the professional review activities of the Medical Staff are fair and impartial and “on the up and up.”  No one wants to be subject to scrutiny by their workplace peers, but doing so when the rules and participants are clear is far more palatable.  Further, if practitioners know the participants in an investigation, they are better able to raise any conflicts of interest or other concerns early in the process.  And if any of those concerns are valid, it could help hospital and medical staff leaders avoid a future dispute (and possible avoid having to repeat the review process at a later date).

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

May 28, 2026

Posted on by Courtney Patterson

QUESTION:
We’ve had some debate over who can order therapeutic diets. Can you help explain the rules on this issue?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Historically, CMS has restricted the ability to order therapeutic diets to “practitioners responsible for the care of the patient.”  This generally meant physicians.  However, in 2014, CMS changed its position on this matter, and revised 42 C.F.R. §482.28(b)(2) to read “All patient diets, including therapeutic diets, must be ordered by a practitioner responsible for the care of the patient, or by a qualified dietician or qualified nutrition professional as authorized by the medical staff and in accordance with State law governing dieticians and nutrition professionals.”  (Emphasis added.)

This change came about largely in recognition of the fact that registered dietitians and other types of nutritionists are trained to assess the nutritional and therapeutic needs of patients.  As such, CMS notes in its Interpretive Guidelines that “[t]he hospital’s governing body may choose, when permitted under State law and upon recommendation of the medical staff, to grant qualified dietitians or qualified nutrition professionals diet-ordering privileges.”

As indicated above, your state law may still limit a dietitian’s scope of practice, so be aware of any restrictions at the state law level.

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

May 21, 2026

Posted on by Courtney Patterson

QUESTION:
What is the difference between SUD Records and SUD Counseling Notes?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under 42 CFR Part 2 (“Part 2”), Substance Use Disorder (“SUD”) Records consist of any information, recorded by, created by, received by, or acquired by a Part 2 Program, relating to a patient (e.g., a diagnosis, treatment or referral for treatment information, billing information, emails, or voice mails), including patient identifying information.

“SUD Counseling Notes” are notes that are made by a Part 2 Program provider who is a SUD or mental health professional during a SUD counseling session (or a group, joint, or family SUD counseling session). SUD Counseling Notes are separated from the rest of the patient’s SUD and medical record.

SUD Counseling Notes exclude the following information:

  • medication prescription and monitoring;
  • counseling session start and stop times;
  • the modalities and frequencies of treatment furnished;
  • results of clinical tests; and
  • any summary of a diagnosis, function status, treatment plan, symptoms, prognosis, and progress to date.

When a patient provides written consent to the use and disclosure of their SUD Record, that consent does not extend to SUD Counseling Notes.  A separate written consent to use and disclose SUD Counseling Notes must be obtained. Moreover, written consent for use or disclosure of SUD Counseling Notes may only be combined with another written consent for use or disclosure of SUD Counseling Notes.

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

May 14, 2026

Posted on by Courtney Patterson

QUESTION:
Our hospital uses consent forms that state certain physicians are independent contractors, not hospital employees.  If a patient signs (or verbally agrees to) those forms, does that fully protect the hospital from being held liable for the physicians’ care?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:
This is a great question and one that has come up repeatedly over the years, particularly in the emergency department setting.  As a general rule, independent contractor language in consent forms should be viewed as helpful, but not determinative, when it comes to hospital liability.

For example, as we saw in one of this week’s cases, White v. Iroquois Memorial Hospital, courts will look beyond the consent form to evaluate how care was provided and how the hospital presented the physicians to the patient.  Even where a patient signs or verbally agrees to independent contractor language, hospitals may still face liability if the patient reasonably believed that the hospital itself was providing the care.  This is especially true in emergency situations, where patients may be in pain, under stress, and focused on receiving treatment rather than reviewing consent language.

That recent case also illustrates that consent forms must clearly and specifically notify patients which physicians are independent contractors.  Broad or generalized statements may not be sufficient, and verbal acknowledgment of a form does not necessarily resolve these issues if the patient is not given a meaningful opportunity to understand the relationship between the hospital and the treating physicians.

It is also important to remember that independent contractor disclaimers do not eliminate exposure to direct negligence claims against hospitals.  Even if physicians are properly classified as independent contractors, hospitals may still face claims based on communication failures, care coordination issues, transfer processes, or other system‑level breakdowns.

For these reasons, hospitals should regularly review their consent forms to ensure the independent contractor language is clear, specific, and accurate.  Hospitals should also assess whether their operations, signage, training, and patient‑facing communications are consistent with that language.

If you have a quick question about this or other issues, e‑mail info@hortyspringer.com.