Author: Courtney Patterson

February 6, 2025

Posted on by Courtney Patterson

QUESTION:
There is a private subreddit discussion group in which only Medical Staff professionals are approved to participate.  Most members of the group seek advice on credentialing, privileging, and peer review issues.  Community guidelines within the group caution against identifying the practitioners involved in their questions.  However, some posts may include specific details about problematic credentialing files or behavior incidents.  In some instances, individuals who post questions may include information such as their name and the hospital at which they work.  A few of our leaders are wondering if joining this group would help to bounce ideas off other Medical Staffs and their leaders.  Is this problematic?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
While we don’t mean to discourage professional interactions among Medical Staff professionals, there are legal risks to discussing credentialing and peer review issues about individual practitioners on social media.

Let’s be real, it’s social media.  There is never any guarantee that anything posted on platforms like Reddit, Facebook, or Instagram will remain private, even if a group is “closed.”  A member of the group could have a reason for disclosing information outside the group.  All it takes is a screen shot or copy + paste.  Plus, efforts to “de-identify” information do not always work.  Even the smallest bits of supposedly de-identified information can sometimes be pieced together and become identifiable.

There are a variety of legal risks if a post about credentialing or peer review matter gets back to the practitioner who is the subject of the post.  First, the practitioner could claim that the post was defamatory because it disclosed unfavorable information in a public setting.  Also, the practitioner could argue that the post constituted a breach of the confidentiality obligations set forth in the Medical Staff Bylaws, “tortiously interfered” with his employment prospects, or constituted a “breach of contract” under state law.

Social media posts could be problematic even if they are disclosed to individuals other than the practitioner in question.  For example, plaintiffs’ attorneys could use such posts as a reason to look for problems at a hospital.  Also, attorneys representing plaintiffs in malpractice or negligent credentialing cases could argue that the disclosure of peer review information on social media resulted in a waiver of the peer review privilege under state law of any information related to that matter.

So, we want to be careful here.  Again, we don’t mean to discourage professional interactions among Medical Staff professionals.  There are certainly many topics that could be discussed that don’t raise the potential problems discussed above.  However, recognize that there are risks to disclosing practitioner-specific information on social media.

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

January 30, 2025

Posted on by Courtney Patterson

QUESTION:
Our hospital is in the process of refining our Conflict of Interest (“COI”) Policy.  What are some general principles we should stick to/try to avoid?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Every potential COI is unique depending on who is involved, what stage in a process you are in, and the level of participation of the potentially conflicted individual.  So, it is hard to have a lot of hard and fast rules when it comes to evaluating COIs.  That being said, there are some general principles you can follow when defining a process to identify and manage COIs.

(1)        The provider under review should not have the right to compel someone to be disqualified as a COI.
While we can and should allow a provider under review to note potential conflicts with individuals reviewing them, the final say in determining if an individual is truly a COI should remain with someone like a committee chair or other leadership that can make an objective decision.  Also keep in mind that anyone can end up in the hot seat as the provider under review, so we want to make sure that no matter who that individual is – even if it is you one day – we are giving that person fair process and evaluating all potential COIs.

(2)        Committees should have a COI identification process.
Some conflicts are obvious (e.g., family members, competitors, etc.), but some you might be completely oblivious to (e.g., history of animosity, good friends, etc.).  Since it is impossible to know every conflict that might exist, you should have a process that requires committee members to disclose any potential conflicts.  Because if conflicted individuals participate in a process, they may be putting themselves at risk of some legal trouble, so we want to protect those that are volunteering their time to help the hospital by managing those conflicts on the front end.

(3)        Have a COI Policy that maintains the integrity of the process.
Ultimately, our goal in managing COIs is to protect the integrity of the processes we have in place.  By managing conflicts effectively, we build trust in our system processes, so everyone feels like they are being treated fairly and given a fair chance to be heard.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

January 16, 2025

Posted on by Courtney Patterson

QUESTION:
How should we handle distributing peer review materials prior to a meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
In general, we recommend that documents not be distributed before meetings.  You always take a risk when you distribute peer review materials prior to a meeting, because if the materials are lost, misplaced, or treated carelessly, peer review protections could be lost.  Confidential materials should not end up in the hands of someone who is not part of a legally protected peer review committee.

But, we also realize that sometimes confidential materials have to be reviewed prior to a meeting, because it may be a huge pile of documents.  So, here are a couple ideas:

You could keep all of the peer review materials in a central location, like the medical staff office.  Committee members can have access to the materials, but won’t be able to take them out of the office.  Also, here, don’t allow any copies to be made, unless the VPMA, CMO or CEO allows it.

Another idea is to put the committee member’s name and phone number on the materials, along with a number, like 1 of 12.  The committee members should be told that no copies may be made, and that the documents should be returned after the meeting.  Then, after the meeting, the materials should be collected, all of the numbers accounted for, and the copies destroyed – only keep the originals as official records.

One final idea that can be used with the first two ideas is to stamp all of the confidential materials with a stamp that states “Protected and Confidential Pursuant to the State Peer Review Statute.”  Again, a red flag goes up if the stamp is seen outside the meeting room.

During the pandemic, everything became virtual, which raised a whole host of issues.  Everyone is now more comfortable sharing peer review documents electronically through protected portals and the like, but there is still a need to be cautious.  So, sit down and think everything through on how to tackle this.  For example, think about:

  • How do you control access? (passwords, secure email, etc.)
  • Do you send emails to gmail accounts or only to hospital accounts?
  • Are you going to blind the records? Prohibit copies?

We advise pulling in your facility’s tech experts to work with you as a part of this process.  Which videoconferencing platform is secure for HIPAA and other privacy laws?  Create a list of approved software programs.

We’ve developed a policy on virtual meetings.  The highlights of the policy are:

  • Virtual participants should be required to maintain compliance with all policies relating to confidentiality, data privacy, electronic communications and security. We recommend that all meetings begin with a reminder about confidentiality, privacy and security, and that this be reflected in the minutes.  Quorum and voting requirements apply as if at an in‑person meeting.
  • The best practice is to prepare for calls by testing new cameras and microphones before the meeting. Also, minimize outside distractions, such as the dog coming in and out of the picture, hearing the neighbors fighting, or the kid next door testing out the new exhaust on his Dodge Challenger.  You can’t soundproof the walls, but do try to find a secluded, quiet space.

Some practical tips for virtual meetings…

  • Remember that you’re in a professional setting. During the pandemic, there were stories about people making dinner, brushing their teeth, etc., while on Zoom.  Avoid that and give the meeting the attention it deserves.
  • Remember that mute is your friend. Keep microphones on mute unless speaking, and always assume that the mic is hot.  Pre‑pandemic, there’s the famous story about President Ronald Reagan forgetting that he had a hot mic, and saying “My fellow Americans, I’m pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes.”  Then there are the pandemic stories – all members of a San Francisco area school board resigned after they were heard making disparaging comments about parents at a virtual board meeting.  Always assume the mic is hot and the camera is on.

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

January 9, 2025

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital. We think that information 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?

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 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 applied. The physician argued that he received legal advice that signing the release could compromise his lawsuit against the hospital, which had revoked his privileges. The court held that because the physician had not provided the additional information that the hospital requested – irrespective 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.

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

December 19, 2024

Posted on by Courtney Patterson

QUESTION:
One of our doctors just received a letter that his Medicare billing privileges have been revoked.  What does this mean and is there anything that can be done about it?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Medicare billing privileges can be revoked for a variety of reasons listed in 42 CFR §424.535 but revocation of billing privileges is not the same thing as being excluded from Medicare. So, your hospital and the physician’s employer do not have to terminate any contracts they have with him.  However, it is always a good idea to double-check the OIG exclusion list just to make sure.  Moreover, revocation of Medicare billing privileges does not affect the physician’s ability to submit claims to non-Medicare payers using his NPI, and the physician can still provide locums coverage for other physicians as long as claims are not submitted under the name and NPI of the physician whose billing privileges were revoked.

Revocation of Medicare billing privileges usually is only in effect for a finite period of time, after which the physician can reapply for Medicare enrollment.  In addition, the physician can request that the Medicare Administrative Contractor (“MAC”) reconsider the revocation within 65 days of the date of the revocation and also ask for an extension of time to do so pursuant to 42 CFR §498.22.

Revocation of Medicare billing privileges is a serious matter and can cause a lot of disruption beyond just losing revenue.  But it is far less onerous than getting excluded from Medicare and there are opportunities to get reinstated.  Of course, like other situations dealing with the Government, don’t try this at home without close adult legal supervision.

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

December 12, 2024

Posted on by Courtney Patterson

QUESTION:
The MEC recently learned that a department chair placed a physician on a “period of FPPE to include proctoring until such time as the requirement for supervision is lifted.”  This has raised some red flags within the Medical Staff leadership.  We are a bit worried about the use of the word “supervision” here.  Also, another main concern is that we revised our peer review process several years ago and, while our policy allows department chairs to perform clinical case reviews, send letters of guidance, and conduct informal collegial conversations with practitioners, the policy pretty clearly states that if something more intensive/intrusive – like a formal, planned collegial intervention meeting or performance improvement plan – is envisioned, the matter should be referred to the multi-specialty peer review committee or MEC for management.

Should we “undo” the actions of the department chair and “redo” the peer review according to our policy?  Since it’s already in progress (the practitioner has already been notified of the requirement) should we just let it ride out? This feels like quite a mess.

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
You know the saying, “An ounce of prevention is worth a pound of cure”?  Well, right now you need a pound of cure.  It happens!  You are right to have some concerns about the process that has been followed thus far in reviewing this matter.  And the concerns you articulated in your question are astute.  The use of the word “supervision” probably is inappropriate and inapplicable here.  Most proctoring that is performed in the peer review world is observational only and does not involve true supervision by the proctor.  The role of the proctor is to observe and report back to the peer reviewers his/her opinions about the performance of the individual subject to review.  The proctor often consults with the practitioner collegially during that process, but the consultation does not generally rise to the level of supervision and the proctor generally does not have any authority to dictate how the practitioner provides the medical care in question.  Using the word “supervision” to describe the proctoring could give the wrong impression about these matters.  And just as importantly, it could set a negative tone, making this practitioner (and others, in the future) more defensive and less likely to be cooperative with the proctoring process.

It would also appear that the department chair overstepped his role in the process by implementing an activity (proctoring) that is generally reserved for performance improvement plans.  To the best of our knowledge, there are no legal or accreditation standards that dictate “who does what” in peer review.  But, your policy should serve as the guide for peer review activities within your hospital and medical staff.  And the way your policy has been drafted – to divvy up responsibility for certain interventions such that lower-level interventions are within the authority of individual leaders, but more intrusive interventions require committee action – are “best practice” within the industry.  Relying on multi-disciplinary committees to implement performance improvement plans provides a check and balance, helping to eliminate personal variation, as well as alleviate any concerns that competitive motives formed even part of the motivation for the action.

Now, for your real question:  Should you undo the action of the department chair?

In this case, that is probably the best course of action.  Of course, diplomacy is key.  As a first step, the MEC might simply ask a few individuals (the officers?  A Leadership Council?) to meet with the department chair and ask him to reconsider his decision.  Those leaders can also work with the department chair to notify the practitioner that the previous determination has been rescinded and, upon further consideration, it has been determined that the matter should be forwarded to the multi-specialty peer review committee for further consideration and determination of next steps.

With that done, you can then focus on the “ounce of prevention.”  Leadership roles turn over very frequently – and Medical Staff leaders are usually not provided any training in advance of their leadership terms.  Methodically providing an orientation letter to new leaders and regularly providing leadership education and training is a great way to help leaders navigate their many (and sometimes complex) roles.

An orientation letter can be used to summarize duties and make leaders aware of the Bylaws and policies that apply to them (and should be consulted when performing duties).  It does not need to be a “manual.”  A few pages often does the trick.  For example, the department chair’s role in peer review (as outlined in the policy you describe in your scenario) could be summarized as follows:

As department chair, you are also an important part of implementing the Medical Staff’s professional practice evaluation/ clinical peer review process.  Cases may be referred to you for clinical review, with a request that you report your opinions (on the forms provided).  You may conduct clinical reviews yourself or, where you lack expertise, assign the review to another clinical specialty reviewer within your department (to be reported back to you by the deadline that you set).  If your review reveals new or lower-level concerns that might be best managed through brief, informal collegial counseling or guidance, you may address the matter directly with the practitioner (reporting that outcome to the PPE Professional so that it can be recorded in the hospital’s files and reported to the multi-specialty peer review committee for oversight purposes).  More significant concerns and/or more significant interventions are generally referred to the multi-specialty peer review committee for review and management.  For more details, please refer to the Medical Staff Professional Practice Evaluation Policy.  A copy can be obtained…[describe where/how to obtain the policy]…

If you have a quick question about this, e-mail Rachel Remaley at RRemaley@hortyspringer.com.

December 5, 2024

Posted on by Courtney Patterson

QUESTION:
It was mentioned that we can expedite the credentialing and privileging of telemedicine providers by using a process that would allow us to rely on the credentialing and privileging of telemedicine providers at another facility. Have you heard of this process?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The process you’re describing is an option CMS has put in place to give healthcare facilities an expedited process to credential and privilege telemedicine providers. It allows your facility to rely on the credentialing and privileging of a provider at another site, also called the distant site, to credential and privilege them at your own facility. To use this process, first and foremost, you must ensure that the entity that is serving as the distant site is either a Medicare-participating hospital or a telemedicine entity that furnishes services in compliance with the Medicare Conditions of Participation.

From there, CMS requires that you have an agreement with the distant site, and then details what must be outlined in that agreement, including a list of the telemedicine provider’s privileges at the distant site, assurance that the telemedicine provider has privileges in the state where patients will be located, and mention that the distant site will receive performance review information of a provider’s privileges.

If this is a process your facility is interested in using, it is worth a deeper dive into those CMS requirements. But before you use this process, I highly recommend your facility have a discussion on whether this process is right for you. It is a big act of trust relying on another facility’s credentialing and privileging process as opposed to your own. You want to have a candid discussion on if this is something you will do for every telemedicine provider, if this is a process you will limit to only certain distant sites, etc.

Additionally, depending on your accrediting body (e.g., the Joint Commission, DNV, etc.), there may be some additional requirements that the distant site may have to meet to be eligible for this process, so don’t forget to check accreditation standards as well.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

November 21, 2024

Posted on by Courtney Patterson

QUESTION:
During our Peer Review Clinic Seminar in Las Vegas last week, several attendees asked if they should request input from a physician as soon as a case “falls out,” or if they should wait until later in the process. So, what do we think?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
We see different opinions on this when we work with Medical Staffs on new peer review policies. Some physician leaders want to obtain input as soon as a case is identified for review, believing it will expedite the review process (i.e., there won’t be a need for the reviewer to later pause the process to stop and obtain the physician’s input if they already have that information from the start).  Also, obtaining input right away can emphasize to Medical Staff members that the process is transparent and their input will always be considered.

However, we also hear the counterpoint that sending a request for input before the case is even sent for initial screening can cause undue stress if the case is ultimately closed with no issues.  In addition, the physician will have spent time preparing comments that weren’t needed.

Both of these arguments have validity, and there is probably not a right or wrong answer.  Some organizations we work with have incorporated a triage step in their review process, whereby cases are screened to help identify those where input would be helpful right off the bat (keeping the option to ask for input later on for all other cases).

Another option would be to get input from the physician right away if a case is identified due to a reported concern, referral from a sentinel event, referral from risk management, or some other source that makes it more likely that the individual or committee reviewing the case will want to hear from the physician under review.  But input might not be obtained right away for cases identified by a pre-determined trigger (because sometimes triggers can be more sensitive and identify cases that don’t raise a concern).

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

November 14, 2024

Posted on by Courtney Patterson

QUESTION:
We have an applicant for appointment and privileges who disclosed that she recently enrolled in our state health program and that she had enrolled in a similar program in the state where she previously practiced.  The applicant also shared that she had completed inpatient treatment for substance use disorder earlier in the year.   We were not particularly concerned with this disclosure since the applicant is being monitored by our state program which is quite thorough.

However, we just learned that the applicant’s employment had been terminated, by her previous employer, for practicing in the clinic while impaired.  We are concerned because she misrepresented this information on her application form. What can we do?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Bylaws or credentials policies (the “Credentials Policy”) often allow a hospital to “not process an application” when there are misstatements or omissions.  Typically, the Credentials Policy requires, in situations like this one, that the applicant be notified, in writing, about the potential misstatement or omission, and be invited to explain.  Thereafter, the response will be reviewed, often by the Chair of the Credentials Committee and the Chief Medical Officer, and a determination will be made whether the application should be processed further.

Importantly, this process does not result in a “denial” of the application.  And, the Credentials Policy should make it clear that “No action taken pursuant to this Section will entitle the applicant or member to a hearing or appeal.”

This process should not be different even if an applicant is claiming a disability.  A physician’s substance use disorder may be a protected disability under the Americans with Disabilities Act (“ADA”).  And, the ADA may not allow inquiries related to a physician’s impairment prior to a determination that the physician is otherwise qualified to fulfill the essential functions of appointment and clinical privileges.  However, an impairment does not excuse a physician for misstating information on an application, including that the physician was terminated, or otherwise disciplined, for practicing while impaired.

Therefore, you are free to treat a misstatement, like the one you described, in a manner consistent with any other misstatement or omission.  That means, if you provide notice to the applicant of the misstatement or omission and allow the applicant to respond and, thereafter, determine that the misstatement or omission is substantial enough to support a legitimate concern about the applicant’s integrity, you may, consistent with the controlling documents, decide not to process the application further.

Ideally, your Credentials Policy should treat these decisions as administrative in nature.  This decision should not be considered an adverse professional review action.  The decision not to process the application, because of a misstatement or omission, should not trigger a right to a hearing.  Thus, these decisions are not reportable to the National Practitioner Data Bank and should not be reportable to the state board either.

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

November 7, 2024

Posted on by Courtney Patterson

QUESTION:
We asked Grok AI “What do you know about HortySpringer?” Here is what it said.

ANSWER:
Based on the information available up to September 2024, Horty, Springer & Mattern, P.C. is a law firm based in Pittsburgh, Pennsylvania, with a specialization in healthcare law. Here’s what can be inferred or is directly known about them:

  1. Specialization: The firm focuses exclusively on healthcare law, which means they deal with a wide array of legal issues related to healthcare providers, including hospitals, health systems, HMOs, managed care organizations, and other healthcare entities.  Their expertise covers areas like medical staff bylaws, physician contracts, healthcare compliance, and more.
  1. History: Founded in 1971, the firm has over 50 years of experience in the healthcare sector.  This longevity suggests a deep understanding of the evolving landscape of healthcare law.
  1. Clientele: They serve clients across all 50 states and the District of Columbia, indicating a national reach and reputation in healthcare legal services.  This includes consulting with physician leaders, health system executives, and boards, suggesting they’re involved in high-level strategic and governance issues within healthcare organizations.
  1. Innovative Practices: HortySpringer has been recognized for innovation, particularly in how they deliver legal services.  They’ve developed tools like HortySpringer LegalSifter Essentials Edition, which combines legal best practices with AI to help clients manage contract reviews more efficiently.  This indicates an approach towards modernizing legal services with technology.
  1. Education and Training: The firm offers training programs like HortySpringer Pathways, aimed at hospital and physician leaders to manage and oversee medical staff, which underscores their commitment to not just legal advice but also in enhancing the operational capabilities of healthcare professionals through legal education.
  1. Publications and Engagement: They engage actively with the healthcare community through newsletters like the Health Law Express, indicating a commitment to keeping their clients and the broader healthcare community updated on legal changes and best practices.
  1. Legal Expertise: Their involvement in cases and discussions around significant legal issues like the PSQIA (Patient Safety and Quality Improvement Act) and the implications of Supreme Court decisions on healthcare indicates they’re not just practitioners but also contributors to the legal discourse in healthcare.
  1. Size and Structure: The firm has around 14 attorneys, all based in Pittsburgh, focusing solely on health care, which might suggest a boutique yet highly specialized approach to legal services.

In summary, Horty, Springer & Mattern, P.C. is recognized for its deep expertise in healthcare law, innovative service delivery, and a comprehensive approach that includes legal advice, education, and active engagement in healthcare policy and legal developments.  Their focus on healthcare governance, compliance, and operational support for healthcare entities makes them a notable entity in the legal landscape of healthcare in the U.S.

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