Author: Courtney Patterson

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.

October 31, 2024

Posted on by Courtney Patterson

QUESTION:
We are working on rewriting our Medical Staff governance documents and noticed that the discussion draft of the Medical Staff Bylaws prepared by HSM attorneys includes the details on histories and physicals.  Why are the specifics of histories and physicals included in the Bylaws instead of the Medical Staff Rules and Regulations?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a question and answer (but mostly the answer) that has perplexed us for quite some time so we understand any confusion.  The Centers for Medicare & Medicaid Services (“CMS”) Conditions of Participation (“CoPs”), which are the federal regulations with which hospitals must comply to participate in the Medicare and Medicaid programs, require the Medical Staff Bylaws to include certain details on histories and physicals, including those related to timing, practitioner eligibility for completion, use of histories and physicals performed before admission or registration, and options for using an “assessment” for outpatient surgical or procedural services.  See 42 C.F.R. § 482.22(c)(5).  Accreditation entities have followed suit and also require this information related to histories and physicals to be in the Bylaws.  See, e.g., The Joint Commission, Standards & EPs, MS.01.01.01, EP 16 (“The medical staff bylaws include…[t]he requirements for completing and documenting medical histories and physical examinations.”).

In the past, we assumed that CMS was using “Bylaws” in the CoPs generally to encompass any of the Medical Staff governance documents, including the Rules and Regulations.  Thus, if a hospital was using a separate document approach (i.e., Bylaws, Credentials Policy, Organization Manual, Rules and Regulations, etc.), histories and physicals could be addressed in the Rules and Regulations.  This makes sense because the Rules and Regulations, traditionally, cover the rules for clinical services and the provision of care, such as those related to admissions, orders, consultations, surgical services, and anesthesia.  The rules for histories and physicals would be a logical fit for the Rules and Regulations.  However, we received feedback from CMS that the details on histories and physicals specified in the CoPs must be included in the Bylaws document itself.

Some medical staffs with which we have worked include only what is required by CMS in the Bylaws and then include additional details on histories and physicals (e.g., the details of the examination and documentation of the examination) in the Rules and Regulations.  This is perfectly acceptable but results in fragmentation and documents that are difficult to reference for purposes of discovering all the requirements for histories and physicals.  It may be easier to simply include all the specifics on the topic in the Medical Staff Bylaws with a cross-reference in the Rules and Regulations to the appropriate section, article, or appendix of the Bylaws.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

October 24, 2024

Posted on by Courtney Patterson

QUESTION:
After attending HortySpringer’s Peer Review Clinic in Amelia Island earlier this year, we decided to ramp up a multi-specialty peer review committee to provide oversight over what has traditionally been a department-based process at our hospital.  We are struggling with what kind of information that new committee should share with our MEC.  Any tips or suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
First off, thanks for attending the PRC! We are glad to hear our recommendations were helpful!

As it relates to your question, we recommend that your MEC not be given detailed, practitioner-specific information about individual cases that the multi-specialty peer review committee is reviewing.  There are several reasons for this recommendation:

  • If a peer review matter cannot be successfully resolved by the peer review committee, the matter may end up on the MEC’s agenda. If the MEC has been receiving detailed, practitioner-specific reports throughout the review process leading up to that referral, the physician under review may allege that the MEC has already “pre-judged” the matter and were biased by all the sound bites it received from the peer review committee.
  • The MEC is the only Medical Staff body that can recommend or take disciplinary action with respect to a physician, so to promote positive engagement with the peer review process, we like to keep the MEC out of day-to-day “routine” peer review matters. We have found this can help change the perception of peer review from one that has traditionally been viewed as punitive to one that is educational and constructive.
  • Providing practitioner-specific details to the 20 or 30 people who are in the room at your MEC meetings can undermine the principle that the peer review process is confidential.

All of the above has led us to believe that the MEC can satisfy its legal responsibilities to oversee the peer review process by reviewing aggregate, anonymized reports regarding the activities of the peer review committee, without having to give practitioner-specific details.

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

October 10, 2024

Posted on by Courtney Patterson

QUESTION:
We are amending our medical staff governance documents and considering giving Advanced Practice Professionals (“APPs”) a larger role in medical staff affairs.  Do you have any recommendations based on your experience working with other hospitals?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
With the ever-increasing role that APPs, such as physician assistants and nurse practitioners, play in the delivery of health care in hospitals, we are seeing many hospitals across the country wrestle with this question.  Unfortunately, there is not a “one-size-fits-all” answer and the appropriate solution needs to take into consideration federal and state regulations and the culture of your medical staff and hospital, among other things.

Let’s start with the regulations.  The Centers for Medicare & Medicaid Services Conditions of Participation (“CoPs”) defer to state law when it comes to appointing APPs to the medical staff:  “The medical staff must be composed of doctors of medicine or osteopathy.  In accordance with State law, including scope-of-practice laws, the medical staff may also include…non-physician practitioners who are determined to be eligible for appointment by the governing body.”  42 C.F.R. §482.22(a) (emphasis added).  However, you want to be sure to check your state’s laws and regulations to determine if those sources are more restrictive.  By way of example, Pennsylvania limits medical staff membership to physicians and dentists.  28 Pa. Code § 107.2.  Even though Pennsylvania has a “structured exception” allowing hospitals to admit podiatrists to the medical staff, there is no corresponding exception for APPs.  Compare Pennsylvania’s restrictive approach with the approach taken by Colorado, which allows both physicians and non-physician practitioners to be on the medical staff.

Even in the states that permit APPs to be on the medical staff, we are seeing a variety of approaches.  Some hospitals make APPs eligible for medical staff membership, including appointment to the Active Staff.  That being said, these hospitals impose appropriate limitations on their prerogatives when compared to physician members of the Active Staff such as not being able to serve as the President of the Medical Staff (the Interpretive Guidelines to the CoPs say that the President of the Medical Staff “must be a doctor of medicine or osteopathy, or, if permitted by state law where the hospital is located, a doctor of dental surgery, dental medicine, or podiatric medicine”).  While we don’t see this approach taken frequently, it is more common with Critical Access Hospitals or smaller hospitals where the majority of clinical services are provided by APPs.

A more common approach is gradual integration of APPs into medical staff functions.  For example, the medical staff may begin by creating an APP Credentials Committee which reviews applications of APPs and reports to the regular Credentials Committee, or appoint APPs to the Credentials Committee to tap into their expertise when it comes to state scope of practice laws for APPs, how they practice, and what they are permitted to do in similarly-situated hospitals.  Some hospitals are also appointing an APP to the Medical Executive Committee and Multi-Specialty Peer Review Committee.  It varies with respect to whether they are given voting rights since we have seen some physician members of the medical staff express discomfort with an APP, who may have a supervising agreement while practicing in the hospital, evaluating the care they provide as a part of one of these committees.

In conclusion, APPs are increasing in number and have a growing role in providing clinical services in hospitals.  If your medical staff has not yet addressed this issue, the odds are that it will need to in the future.  Nevertheless, these are interesting and exciting issues whose solutions can result in a more vibrant and robust medical staff and hospital.

If you have a quick question about this, e-mail Charles Chulack at CChulack@hortyspringer.com.

October 3, 2024

Posted on by Courtney Patterson

QUESTION:
We have a patient scheduled for surgery who is deaf and we want to make sure that we are providing reasonable accommodations in accordance with the Americans with Disabilities Act. With that said, do we have to hire an in-person sign language interpreter, or can we rely upon video remote interpreting services to communicate with the patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
It’s great that you’re planning ahead to ensure that you can communicate effectively with your patient, especially in situations like these where communication is critical to quality care.  Under Title III of the Americans with Disabilities Act (“ADA”), hospitals and other places of public accommodation are required to provide “auxiliary aids and services” to individuals with disabilities to ensure effective communication.  “Auxiliary aids and services” include qualified interpreters who are either on site or available through video remote interpreting (“VRI”) services.

If your hospital is considering VRI services in lieu of in-person interpreters, please note that, in accordance with the ADA, these services must provide:

  • real time, full motion video and audio over a dedicated, high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
  • a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;
  • a clear, audible transmission of voices; and
  • adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 CFR § 36.303.

The type of auxiliary aid or service will vary depending on the complexity of the communication involved and the context in which the communication is taking place.  While the ADA encourages consulting with the individual to determine the type of aid needed, it is the ultimate decision of the hospital or public accommodation so long as the chosen method of communication results in effective communication.  Therefore, as long as the VRI services provided meet the requirements listed above, and it is determined that VRI is an appropriate method of communication under the circumstances, then it is likely sufficient for a hospital to offer a patient such services as a reasonable accommodation rather than provide and pay for an in-person interpreter.

If you have a quick question about this, or any other hospital-related ADA issue, e‑mail Mary Paterni at mpaterni@hortyspringer.com.

September 26, 2024

Posted on by Courtney Patterson

QUESTION:
Since election season is upon us, what are the rules regarding 501(c)(3) tax‑exempt organizations participating in political activity?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
This is directly from the IRS website:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.  Violating this prohibition may result in denial or revocation of tax‑exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances.  For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non‑partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get‑out‑the‑vote drives, would not be prohibited political campaign activity if conducted in a non‑partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

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

September 19, 2024

Posted on by Courtney Patterson

QUESTION:
We recently learned that one of our internists lost three fingers in an alligator attack while on a fishing retreat in Florida. He hasn’t been in the hospital for about seven weeks. Do we need to place him on a leave of absence or send him a request for information/records/medical clearance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
What a traumatic and unfortunate thing to have happen!  When new concerns about practitioner impairment are raised, the hospital and medical staff have a responsibility to take steps to assure patient safety.  The right approach often depends on the circumstances.

In your scenario, the physician is an internist.  As a first step in evaluating whether the new health information raises concerns about the physician’s safety might be to evaluate his privilege delineation.  Does it include privileges that require manual dexterity?  The ability to grasp with a fist?  The use of both hands?  Also consider other Medical Staff obligations.  Would losing full use of one hand affect the physician’s ability to utilize the electronic medical record or other hospital equipment?

If the answer to any of the above is “yes,” then the matter should probably be referred to the committee within your hospital that handles matters of practitioner health (e.g., your Medical Staff Leadership Council or Practitioner Health Committee or Wellness Committee).  That committee can then decide next steps (in accordance with your Practitioner Health Policy, of course!), which might include some or all of the following:

  • Reaching out to the physician to inquire about his well-being, express peer to peer concern, ask about his practice plans, and offer support to the physician as he navigates how this new injury will affect his practice long-term. This initial communication might be a good time to ask the physician if he is planning to request a leave of absence in light of this extended time away from his hospital practice.
  • If the physician does not intend to request a leave of absence, the leadership may consider implementing one unilaterally – if the Medical Staff Bylaws (or other policies) authorize it. We recommend Bylaws language authorizing leaders to place a practitioner on a leave of absence in situations where the practitioner has been absent for a specified period of time (for example, 30 days) and the reason is believed to be related to a health issue.  This allows the leadership to not only plan adequately for the practitioner’s absence (e.g., reconfiguring the ED call schedule without the LOA practitioner on it), but also to ensure a meaningful reinstatement process when the practitioner is ready to return to practice.

In your case, a leave of absence would be a perfectly appropriate option.  Any decision to place the practitioner on leave should, of course, be communicated to the practitioner and memorialized in writing.  Further, it is generally helpful to take this opportunity to inform the practitioner about the reinstatement process, so that as he contemplates his return to hospital practice, he can plan accordingly (including making his reinstatement request well in advance of his planned return and, as appropriate submitting information and medical clearances along with the request).

  • In many cases, you may find that the practitioner with a new impairment is not ghosting the hospital in order to avoid detection or scrutiny but, rather, because he is still actively managing/recovering from the injury or illness and simply needs more time – or because he has insight into his changed circumstances and is stepping away from some of his hospital duties temporarily or permanently while he evaluates the impact the impairment will have on his ability to continue aspects of his practice. If you talk to the practitioner and find that he is thoughtfully managing his recovery, has taken steps to protect patients in the meantime (e.g., made plans to cover his practice, modified his practice while he recovers), then the leadership might decide that no leave of absence is required.  This does not mean you need to forego oversight altogether.  But, depending on the situation, the leadership might decide to simply send the practitioner a letter memorializing their conversation – and then ask the physician to let the health committee know in advance (e.g., 10 days or 30 days – whatever is reasonable) that he intends to return to practice so that the situation can be revisited at that time.  Again, this can be a good time to give the physician a “heads up” that additional information about his condition or a health evaluation could be requested in the future, depending on how things go.
  • Finally, if the physician’s condition clearly implicates his safety for some of his privileges (those requiring full use of the hands), the health committee may need to eventually go through the interactive process of discussing with the physician his intentions with respect to his hospital practice (e.g., does he intend to voluntarily relinquish those that require the use of both hands?) and/or whether any reasonable accommodations would be appropriate to assist him in fulfilling the essential functions of Medical Staff membership and/or his clinical privileges (e.g., will special equipment be required to support one-handed typing or voice transcription? Scribe services?).  You may need to request additional information from the physician at that time.  But, it’s possible that once he has fully recovered, your internist will come to you with ample information about his condition and a reasonable plan for practice.  Unless there is a pressing need to request additional information right now (for example, the physician tells you that he will not be requesting a LOA because he intends get back to practice as soon as possible), it may be best to wait to have these conversations after the physician has recovered enough to be thinking about his return.

In the end, it is important that Medical Staff Bylaws and related documents (e.g., Credentials Policy, Rules and Regulations, Practitioner Health Policy) give physician leaders the tools they need to effectively and efficiently address concerns about practitioner health and impairment (like procedures for implementing LOAs and processing reinstatement requests).  Sometimes you need to take advantage of those tools.  But sometimes, depending on the practitioner and the circumstances, those tools end up being unnecessary (leaving the leadership in the enviable position of simply exercising oversight, without having to invoke more formal intervention strategies).