Author: Courtney Patterson

January 19, 2023

Posted on by Courtney Patterson

QUESTION:
Some of our residents have shown an interest in moonlighting at our hospital. Is that something we would be able to offer them?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Yes, absolutely! However, there are some parameters the hospital should be aware of when deciding what type of services residents can provide while moonlighting.

As you are probably aware, CMS requires that the services residents provide to inpatients related to their Graduate Medical Education (“GME”) program be billed as GME payments.  These services cannot be billed as physician services.

This also used to be true for inpatient services provided by residents, not related to their GME.  However, in March 2020, CMS issued a new rule that, among other things, changed the language in 42 C.F.R. § 415.208 that lays out the rules for moonlighting. This new rule established that services provided by residents to inpatients at a resident’s home institution, not related to their GME, were covered as physician services and payable under the physician fee schedule if three criteria were met and documented in the medical record:

(i)         The services must be identifiable physician services and meet the conditions for payment,

(ii)        The resident must be fully licensed to practice in the State, and

(iii)       The services performed must be able to be separately identified from those services that are required as part of the approved GME program.

So, while you can offer residents a range of options for moonlighting, it is important to keep in mind the billing consequences for the types of services the resident is providing.

Also, remember that moonlighting residents would need to be granted clinical privileges to provide services outside of their residency program.  Because moonlighting residents have usually not completed a residency program, they are typically not eligible for clinical privileges as Medical Staff members.  Instead, moonlighting residents are often granted privileges as a category of “Licensed Independent Practitioner.”  Be sure to consult your Medical Staff Bylaws and related documents to see how they treat moonlighting residents.

January 5, 2023

Posted on by Courtney Patterson

QUESTION:
There is a lot of confusion amongst members of our Medical Staff about the relationship between Medical Staff appointment and clinical privileges.  For example, it is common to hear individuals refer to “Active Staff Privileges.” How can we help educate our Medical Staff on the difference between Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Many people confuse or intertwine these two concepts, even though they are separate and distinct.  As such, it is important that your bylaws recognize appointment and clinical privileges as distinct concepts.

Appointment relates to an individual’s membership on the Medical Staff (i.e., that they are recognized as being “on the team”).  With this membership comes certain rights and responsibilities, like voting, serving on committees, etc.

Clinical privileges relate solely to the patient care services an individual has been authorized to provide at the hospital.  They do not relate to an individual’s involvement in Medical Staff affairs and, in turn, are not tied to the individual’s staff category.  In fact, an individual may be a member of the Medical Staff but have no privileges (e.g., “Community Staff”) or could have clinical privileges but no membership on the Medical Staff (e.g., telemedicine providers).

Ensuring your Medical Staff Bylaws documents make this distinction will hopefully help to educate your Medical Staff on this issue.

December 15, 2022

Posted on by Courtney Patterson

QUESTION:

The Joint Commission’s November 4 FAQ, which stated that the time frame for reappointment/re-privileging would be expanded from two years to three years, noted that additional information would be published at a later date.  Is there any update?  Did TJC make this official?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes, TJC made it official.  TJC issued Prepublication Standards for the Hospital Accreditation Program, among others.  The Prepublication Standards revised the Elements of Performance as follows:

MS.06.01.07, Element of Performance 9:  “9.  Privileges are granted for a period not to exceed two years three years or for the period required by law and regulation if shorter.”

MS.07.01.01, Element of Performance 3:  “3.  The organized medical staff uses the criteria in appointing members to the medical staff and appointment does not exceed a period of two years three years or the period required by law and regulation if shorter.”

TJC stated that these Prepublication Standards are “Effective Immediately; February 19, 2023 Release.”

As noted in the November 17 Question of the Week, which commented on the November 4 FAQ, “you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the [November 4 FAQ] states, the appointment term may be shorter than three years ‘if required by law or regulation.’  In other words, state hospital law or regulation will control so you want to be sure to check that first.”

Also, stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

December 8, 2022

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to provide additional information regarding a question that she answered on our application form about a pending malpractice action because she says that her lawyer told her it could jeopardize her position in the pending litigation.  The physician’s description of the pending case is unusual and does cause concern regarding the privileges she is requesting and we think the information being requested is relevant to her request for appointment at our hospital.  Can we still ask for the information?  Should we ask for a letter from her lawyer?  Should the application be held incomplete?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes! Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty.  Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, character, ethics, and other qualifications and for resolving any doubts.

A somewhat similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced, to send information to another hospital where he had made an application.  The physician argued that he received legal advice that signing the release could compromise his lawsuit against that hospital, which had revoked his privileges.  The court held that because the physician had not provided the additional information that the hospital requested regardless of the fact that a settlement agreement was in place, he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.  Bottom line, the caselaw is very strong in this area in terms of supporting hospitals and medical staffs that are requesting information from applicants relevant to an assessment of their qualifications – do not be thrown off course by lawyers!

December 1, 2022

Posted on by Courtney Patterson

QUESTION:
A member of our Medical Staff recently disclosed to the Chief of Staff that they have a prescription to use medical marijuana. How should we handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Rest assured, you are not the only ones that have faced this situation! As the number of states that legalize both medical and recreational marijuana continues to grow, questions related to marijuana use are becoming increasingly common. In general, there are three main things to know before tackling a situation like this:

  1. Marijuana is still illegal at the federal level. Because of that, users of medical marijuana are not entitled to federal protections like those offered by the Americans with Disabilities Act. Instead, all protections and prohibitions are regulated by states, state actors (i.e., a state Board of Medicine), and other committees commissioned by the state.
  1. Every state is handling medical marijuana use and the workplace a little differently. Some states have provided additional protections by doing things like prohibiting discrimination against users of medical marijuana or mandating that employers provide reasonable accommodations for such users. Other states have taken the stance that practitioners should refrain from using medical marijuana, and some states have not addressed the issue at all.
  1. No state requires employers to permit the use of medical marijuana during work or on work property.

With the above in mind, we recommend that hospitals treat this situation like any other where they receive notice that a practitioner may be experiencing a health problem.  The matter should be reviewed under the Practitioner Health Policy or other applicable policy to determine if the underlying cause for the use of medical marijuana affects the practitioner’s ability to safely treat patients. Also, check with counsel to see how your state is addressing this issue.

November 17, 2022

Posted on by Courtney Patterson

QUESTION:
As we can see from The Joint Commission at Work snippet, it looks like The Joint Commission expanded the appointment term for practitioners to three years from two years.  What should we consider if we are interested in moving to three-year appointment terms?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Per the November 4, 2022 FAQ “How are reappointment/re-privileging dates determined?” The Joint Commission instructed that “[r]eappointment/re-privileging is due no later than three years from the same date from the previous appointment or reappointment, or for a period required by law or regulation if shorter” (emphasis added).  The FAQ notes that “[a]dditional information will be published in the December 2022 Perspectives Newsletter regarding a change to the reprivileging/reappointment time frame.”  Thus, it is not clear if this rule has been finalized, especially since the standards available continue to require a two-year appointment period.  Nonetheless, before you move in the direction of allowing a longer appointment term, you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the FAQ above states, the appointment term may be shorter than three years “if required by law or regulation.”  In other words, state hospital law or regulation will control so you want to be sure to check that first.  Also, when The Joint Commission implemented the Ongoing Professional Practice Evaluation (“OPPE”) standard, they considered doing away with the reappointment process.  The Joint Commission’s rationale was that a well‑functioning OPPE process, which requires “ongoing” monitoring of clinical care and other factors, would render reappointment unnecessary.  The Joint Commission never did away with the reappointment process.  However, you should evaluate whether you have a well-functioning OPPE process that catches issues and trends quickly, allowing you to act, intervene, and protect patients.  If not, it may be wise to maintain the shorter reappointment term of two years to take a closer look at practitioners’ clinical practice and professionalism at the Hospital.

Stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

November 10, 2022

Posted on by Courtney Patterson

QUESTION:
I hear the new Medicare Hospital Outpatient Payment Rules that were just published by CMS last week created a new breed of cat called a “Rural Emergency Hospital.”  What’s that?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Rural Emergency Hospitals (“REHs”) are a new provider type established by the Consolidated Appropriations Act, 2021 to address the growing concern over closures of rural hospitals.  The REH designation provides an opportunity for Critical Access Hospitals (“CAHs”) and certain rural hospitals to avert potential closure and continue to provide essential services for the communities they serve.  Conversion to an REH allows the facility to continue providing emergency services, observation care, and, if elected by the REH, additional medical and health outpatient services, that do not exceed an annual per patient average of 24 hours.  The implementation of this new provider type, effective January 1, 2023, is designed to promote equity in health care for those living in rural communities by facilitating access to needed services.

For more information, see the CMS information page here.

November 3, 2022

Posted on by Courtney Patterson

QUESTION:
I think that I am beginning to understand the No Surprises Act (“NSA”).  But try as I might, I still have trouble understanding how the amount that we will be paid if we provide care to a person covered by the NSA will be determined.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The Qualified Payment Amount (“QPA”) is the key to understanding the payment terms of the NSA.  The NSA defines the QPA for a given item or service as generally the median contracted rate on January 31, 2019 for the same or similar item or service, increased for inflation.

Simple right?  Not really.  As you can imagine, the devil is in the details as to how the QPA is determined.  Fortunately, in June 2022, CMS published a guide with the straightforward title, “Qualifying Payment Amount Calculation Methodology,” that does a pretty good job of explaining how to calculate the QPA.  You can access that guide at:  https://www.cms.gov/files/document/caaqualifying-payment-amount-calculation-methodology.pdf

This Guide addresses the terms that are defined in the NSA that relate to the QPA.  For example, to calculate QPA for items/services furnished during 2022, you need to increase the median contracted rate as of January 31, 2019 by the percentage increase in the consumer price index for all urban consumers (U.S. city average) (“CPI–U”) over 2019, the percentage increase over 2020, and the percentage increase over 2021.  Then, to calculate QPA for items/services furnished during 2023 or a subsequent year, the QPA for 2022 is then adjusted annually by the annual increase in the CPI–U.

Not exciting, but this is as practical a guide as you will find.  So, keep it handy when the inevitable payment dispute arises and you want to make sure that the insurer has determined a QPA in a manner required by the regulations.

If you believe that there are factors that are not included in the QPA that are relevant to the items or services that you provided to the patient who is the subject of an NSA dispute, then you should also be aware of the NSA Dispute Resolution Regulations that were issued on August 19, 2022, that are intended to make certain medical claims payment processes more transparent for providers and clarify the process for providers and health insurance companies to resolve their disputes.  

There is not much time left but if you want to learn more about the NSA, telemedicine, the Anti-Kickback Statute, the Stark law, the January 21, 2021 amendments to the regulations to those laws, the False Claims Act, and much more, we invite you to join Henry Casale, Dan Mulholland, and Mary Paterni in our “Hospital-Physician Contracts and Compliance Clinic” that will be held in Las Vegas, Nevada, from November 17-19, 2022.  If you can’t catch us then, be sure to check the HortySpringer website for more information about new and upcoming opportunities on these topics.

October 27, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, an OB resigned from our medical staff to take an opportunity out of state.  Well, one of the OB’s cases was flagged this week by a peer review specialist who sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is rather common, but always a little tricky.  Because the OB is no longer a member of your medical staff, we would advise that peer review of that OB’s medical services provided at your hospital should be discontinued.  The purpose of peer reviewing a specific physician is to ensure and improve quality; this purpose can no longer be effectuated if the OB has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as asking the OB questions about the case, having the OB complete additional training, or monitoring a few of the OB’s cases at the hospital).

Also, depending on state law, a malpractice attorney may argue that the peer review privilege no longer applies to reviews conducted after the OB has left the medical staff.  Finally, if the OB turns around and sues the hospital for whatever reason, continuing peer review of the OB after their departure may give an eager plaintiff’s attorney something to leech onto (e.g., allegations that the purpose of the review is to harm the physician).

This does not mean the case should completely evaporate and if any system-issues were identified outside of the care being provided by the OB, then those system-issues are still prevalent and should be addressed.  We would just advise that any issues related to the OB’s practice at the hospital be put aside.

October 20, 2022

Posted on by Courtney Patterson

QUESTION:
We are currently updating our informed consent forms. Can you remind us of what information should be included on these forms

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Informed consent is critical to providing quality care, so I commend your efforts to review your forms. In almost every state, the treating provider is responsible for explaining to the patient ˗ in such a way that the patient can understand ˗ (1) the item or service that will be provided, (2) the benefits and risks associated with that care, and (3) any alternatives. In some states, failure to obtain a patient’s informed consent may render the treating provider liable for any injury that results from the rendered care, so be sure to check your state law!

Under the Medicare Conditions of Participation, the medical record must contain documentation of the patient’s informed consent for certain treatments and procedures. The Medicare Conditions of Participation Guidelines offer a detailed explanation of what a properly executed informed consent form should look like. When revising your informed consent forms, be sure that they have at least the following elements:

  • The name of the facility where the care is going to take place;
  • The name of the procedure or treatment for which consent is being given;
  • A statement that the procedure or treatment, including the anticipated benefits and material risks, and alternative treatments, was explained to the patient or the patient’s legal representative;
  • The signature of the patient or their legal representative; and
  • The date and time the informed consent form is signed by the patient or their legal representative.

CMS also states that a well-designed informed consent form may also include:

  • The name of the provider who conducted the informed consent discussion;
  • Date, time, and signature of the person witnessing the patient or their legal representative signing the consent form;
  • An indication or listing of the benefits and material risks of the procedure or treatment discussed; and
  • A statement that physicians and providers who are not physicians, other than the treating provider, including residents, will be involved in the care of the patient and will perform important parts of the procedure or treatment, as allowed under state law and regulations, in accordance with the clinical privileges granted and/or scope of practice.

If in doubt, reach out to Mary Paterni to review whether your informed consent forms comply with state and federal law.