October 17, 2019

QUESTION:        A few years ago, CMS proposed a rule that would have required hospitals to send a copy of the discharge instructions and the discharge summary to practitioners responsible for the patient’s follow-up care.  Specifically, the proposed rule attached a 48-hour deadline to this requirement, with an exception for pending test results (which would have been due within 24 hours after becoming available).  Was the 48-hour deadline ever finalized?

ANSWER:          No, CMS ultimately decided not to impose this 48-hour deadline.  At the end of September, the agency published a final rule explaining its rationale.  CMS received numerous comments that supported the idea of requiring hospitals to send a copy of the discharge instructions and discharge summary to the practitioners responsible for the follow-up care, so long as those practitioners were known and had been clearly identified.  However, most of the commentators expressed concern about the idea of a 48-hour time frame.  In the Federal Register, CMS explained that it found these concerns convincing.  Specifically, it acknowledged that the 48-hour deadline would not be reasonable or appropriate for all situations.  It therefore eliminated that specific time frame requirement and instead gave hospitals discretion on when to send this information.

However, CMS did finalize a requirement for hospitals to “discharge the patient, and transfer or refer the patient where applicable, along with all necessary medical information pertaining to the patient’s current course of illness and treatment, post-discharge goals of care, and treatment preferences.”  This does place certain obligations on the hospital (and discharging practitioners) to ensure that necessary medical information is ready to be sent at the time of discharge.

To hear more on this topic and other recent CMS changes, tune in to our upcoming audio conference:

“Patients Over Paperwork”? The New CMS Rules and Their Impact on Your Patients and Policies

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October 10, 2019

QUESTION:        The five medical staffs in our system are thinking about unifying.  Are there any particular steps we need to follow and any changes we need to make to our bylaws?


ANSWER:          In May 2014, CMS revised the Medicare Conditions of Participation to allow a multi-hospital system to have a unified and integrated Medical Staff.  There are several steps that must be taken in the integration process.  First, the system must ensure that there is nothing in the state hospital licensing statutes or regulations that would prohibit the medical staffs of separately licensed hospitals from integrating into a single staff.

Second, the Board (and there must be a single Board) must document in writing its decision to use  a unified medical staff model.  This decision would be conditioned on acceptance by the hospitals’ medical staffs to opt-in to an integrated medical staff model.

Third, the medical staff of each of the hospitals must take a separate vote to opt in or opt out of the unified medical staff.  The vote at each hospital must be governed by the respective medical staff bylaws in effect at the time.  Only voting members of the medical staff who hold privileges to practice on site at the hospital may participate in the vote.

Fourth, the unified medical staff will also want to adopt new medical staff bylaws and related policies.  The new bylaws should take into account the unique circumstances of each hospital, including any significant differences in the patient populations and the clinical services that are offered at each hospital.

Importantly, the new bylaws must also include a process by which the voting members of the medical staff who exercise clinical privileges at the hospital may vote to opt out of the unified medical staff in the future.

October 3, 2019

QUESTION:        Are two Critical Access Hospitals (“CAHs”) allowed to unify their medical staffs?

ANSWER:          No. Moreover, as CMS made clear in analyzing the comments it received to the proposed regulations related to unified QAPI and infection control programs in the final version published on September 30, 2019, there are other limits: “One commenter requested that CMS include ‘affiliate’ and CAHs in the unified and integrated QAPI and infection control requirements.”  CMS responded:

A CAH must be separately evaluated for its compliance with the CAH CoPs (found at 42 CFR part 485, subpart F), which would not include the requirements included in this section of the rule since these are hospital CoPs. It would not be possible to evaluate the CAH’s compliance as part of an evaluation of a hospital’s compliance.  However, this does not preclude a multi-hospital system’s single governing body from also serving as the CAH’s governing body, so long as the governing body clearly identifies the policies and decisions that are applicable to the CAH.  84 Fed. Reg. at 51742.

However, CMS stated that it encourages CAHs to “work with other hospitals or CAHs in their network (if available) for pharmaceutical support” (among other resources) in dealing with the revised antibiotic stewardship requirements.  84 Fed. Reg. at 51783.

The regulations pertaining to CAHs are just a small part of the entire set of regulations.

Join Charlie Chulack and Joshua Hodges for a special audio conference entitled:

“Patients Over Paperwork”?
The New CMS Rules and Their Impact on Your Patients and Policies

October 29, 2019
1:00 to 2:30 pm (ET)

They will discuss the key points in these new regulations, particularly those that affect Medical Staff Rules & Regulations and policies, and revisions you should think about now.

And stay tuned for another special audio conference coming in 2020 on Medical Staff basics for Critical Access Hospitals.

September 26, 2019

QUESTION:        Do the Medicare Secondary Payor rules apply to our freestanding ambulatory surgery center?


ANSWER:          Yes, they do.  All Medicare-participating providers are required to file claims with Medicare using billing information obtained from the beneficiary to whom the item or service is furnished and all entities seeking payment for any item or service furnished under Part B are to complete, on the basis of information obtained from the individual to whom the item or service is furnished, the portion of the claim form relating to the availability of other health insurance.  Thus, any providers (including ASCs) that bill Medicare for services rendered to Medicare beneficiaries (other than Medicare Advantage Plan members) must determine whether or not Medicare is the primary payor for those services.  This must be accomplished by asking Medicare beneficiaries, or their representatives, questions concerning the beneficiary’s MSP status.  If the provider fails to file correct and accurate claims with Medicare, and a mistaken payment situation is later found to exist, Medicare can recover its conditional or mistaken payments.  All providers are required to retain the information about secondary payors for 10 years.  The only difference between hospitals and other providers like ASCs is that hospitals are subject to regular audits by the MAC whereas other providers are not.

September 19, 2019

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What is the significance of the CMS “Pathways to Success” program for ACOs in the Medicare Shared Savings Program?

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ANSWER:            At the end of 2018, the Centers for Medicare & Medicaid Services (“CMS”) redesigned the Medicare Shared Savings Program.  Although the Medicare Shared Savings Program had been in operation since 2012, it had failed to generate the kinds of cost savings that CMS hoped to manifest.  “Pathways to Success” was intended to accelerate the process of transitioning Accountable Care Organizations (“ACOs”) to performance-based risk models.

Among other things, the Pathways to Success program implemented certain kinds of “risk tracks” that offer different mixtures of risk and reward.  Each risk track balances factors such as the potential for financial rewards (in the form of shared savings), the risk of financial penalties (in the form of shared losses), and the opportunity to qualify as an Advanced Alternative Payment Model (which provides certain benefits for individuals subject to the MIPS program).

There are many different variables that govern an ACO’s performance and opportunities under the Shared Savings Program, which means that a full discussion of the program details falls well outside the scope of this article.  The key takeaway to understand is that Pathways to Success was designed to accelerate ACOs to take on higher levels of financial risk and responsibility.  This is yet another example of the ongoing federal effort to promote population health while simultaneously combating the growth of health care expenditures.

To learn more about the Medicare Shared Savings Program, click here.


September 12, 2019

QUESTION:        Our Bylaws state that all of the members of the Active Staff are required to provide call coverage for our ED.  Assuming that we only have two neurosurgeons who are able to cover the ED each month, does this mean they must take 15 days of call each?  Our physician leaders are telling us that this is a tremendous burden, but we do not want to violate EMTALA.


ANSWER:            A tough question, made even tougher by the fact that CMS has provided very little guidance on the reasonableness of hospital call schedules.  In fact, it has even denounced a common “rule of thumb” that many hospitals have decided to follow over the years.

We are referring to the “rule of three” approach, which is based on prior, informal guidance from CMS that said if there were three physicians in a particular clinical specialty on a medical staff, the hospital had the obligation to provide emergency services on a 24/7/365 basis for that specialty.  This has been extrapolated to mean that, in a specialty with fewer than three physicians (like in the question above), each physician should provide 10 days/month of call coverage.

But before you start revisiting your own On-Call Policy requirements, keep in mind that CMS never put this rule in writing and now denies it ever existed.  Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s call schedule.  This means that each hospital should consider factors like the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc. to determine its on-call schedule.

This may not be as helpful as a “rule of three” or “rule of five” approach that we still see some hospitals follow, but it is important to recognize CMS does not have a bright line rule that require 24/7/365-day coverage for each specialty, so there is some flexibility.

September 5, 2019

QUESTION:        How do we handle a situation when there is a physician on the Credentials Committee who is married to another physician, and the spouse’s application is up for consideration?

ANSWER:           Every so often we run across physician couples.  In those instances, there may be a situation in which the conflict of interest rules for credentialing or peer review activities are implicated.  For example, imagine that Dr. Wright is appointed to the Medical Staff, is recognized as having good leadership qualities, and is appointed to the Credentials Committee.  Then, his spouse applies for Medical Staff appointment.  The application comes before the Credentials Committee and Dr. Wright is told “You can’t vote on the application” but Dr. Wright insists on voting, because  “I know this applicant better than any other applicant that has been before this committee!”

Well, that may be so, but Dr. Wright can’t vote!  Going back to compliance training and basic conflict of interest rules, Dr. Wright has a conflict of interest regarding his spouse’s application.  He is emotionally involved in the outcome, and probably financially involved too.  Of course, Dr. Wright can provide any relevant information he may have regarding his spouse and can answer any questions the Credentials Committee may have about her.  But, after doing so, it’s prudent for him to leave the Credentials Committee meeting, and not participate in the discussion of his spouse’s credentials or the vote on the application.  Also, the minutes should reflect that he left the meeting, the vote occurring after he left, and his return to the meeting.

August 29, 2019

QUESTION:        Our Credentials Policy says that applicants for Medical Staff appointment and clinical privileges will be interviewed by the department chair, the Credentials Committee, the Medical Executive Committee, the Chief of Staff, the Chief Medical Officer or the Chief Executive Officer.  Is there really any benefit to performing an interview as a part of the credentialing process or should we just eliminate this language from our Policy?


ANSWER:            There certainly is some debate about the effectiveness of interviews in predicting future job performance.  However, much of the research indicates that unstructured job interviews are ineffective.  On the other hand, structured interviews are one of the most effective selection techniques.

In structured interviews, applicants are asked to respond to the same set of questions and their answers are rated on a standard scale.  Sounds complicated, right?  Not necessarily.  We understand that the development of a complex, standard scale for rating would involve the participation of experts; however, a common set of straightforward questions that are structured to elicit information about past behavior (as opposed to questions designed to elicit information about how an applicant would respond in a hypothetical situation) and that are relevant to Medical Staff appointment, measured against a simple rating scale, can be useful.  This task shouldn’t be outside of the Credentials Committee’s wheelhouse.

There is always the risk of variability among interviewers, but this could be minimized by having at least two individuals conducting the interview, using the same scale but rating separately, and then comparing notes after the interview to reduce variability in rating.

Like we mentioned earlier, questions about past behavior are key because there is less opportunity for an applicant to provide a response that is not capable of being verified.  Interview questions can also elicit information about whether the applicant’s views and practice style are consistent with the medical staff and hospital’s culture.

For example:

Q:        What attracts you to this hospital/why are you interested in working here?

Q:        Tell us about a time in which a case of yours was reviewed through the peer review process and how you participated/responded.

Q:        Describe a situation in which you were asked to do something beyond your established responsibilities (e.g., service on medical staff committee, fill in a call coverage gap) and tell us how you responded.

Q:        Tell me about a time when you had a conflict with another physician and how you dealt with that conflict.

Q:        What role do you see the nursing staff playing in patient care in the hospital?

If interviewing every applicant simply isn’t an option because of time constraints, interviews should, at the very least, be conducted when there are questions or concerns about the applicant’s qualifications, experience, education, training, or other aspects of his or her practice that have been raised at any time during the review of the application.  Thus, rather than having a strict requirement that all applicants will be interviewed, you can adjust your Policy language to instruct that applicants may be interviewed.

August 15, 2019

QUESTION:        After nearly six long years of service to my Medical Staff, my term as Chief of Staff is nearly over.  Elections will be held in September and I will hand over this role at the end of December.  Are there any steps I should be taking in these final few months to “pass the torch”?

ANSWER:            First off, thank you for your many years of service and kudos to you for anticipating the changing of the guards that is coming up this fall.  While December may feel far away when people are still returning from their summer vacations, the end of the year will arrive sooner than you think.

Based on your statement that you’ve spent six years in leadership, I’m guessing that you automatically became Chief of Staff after serving a term as the Vice Chief and that prior to that, you served a term as the Secretary-Treasurer.  If automatic succession of officers is indeed the practice within your Medical Staff, the good news is that the soon-to-be-Chief has already had some experience in leadership, has likely already been attending MEC meetings and is probably generally “in tune” with the day-to-day functions of the Medical Staff leadership already.  Accordingly, he or she should be better prepared to take over (when compared with, say, a Chief of Staff elected at random and not through succession).

A few tips on how to increase the chances of a successful and seamless transition:

    • Consider the value of leadership education for new leaders. In our experience, many Medical Staff leaders have questions not only about tough credentialing and peer review issues, but also about fundamentals.  Amongst other things, this includes questions about running meetings (e.g., agendas, minutes, recusals, quorums), intervening with a colleague in a way that is collegial and/or friendly but still gets the point across, and legal protections for leaders (e.g., “If I get sued by a doctor, is my malpractice insurer going to cover that?”).

Some hospitals and medical staffs choose to send all new leaders to leadership education within the first year of any term of office (and require it as one of the duties of the office).  Others simply provide education for all leaders on a periodic basis and ask that anyone who is interested attend.  Providing education to both new and seasoned leaders can be helpful and can provide opportunities for leaders of all experience levels to discuss new strategies and develop new policies and procedures at home.

If you don’t already have a leadership education tradition, now may be the time to suggest it – to help the incoming Chief get off on the right foot.

    • Consider one or more meetings with the incoming Chief of Staff, as well as the chairs of the Medical Staff committees that handle most credentialing and peer review matters. These meetings should be focused on preparing the new leaders to take over.  They can provide an opportunity to review issues that are “in process” and likely to require additional follow-up after the transition to new leadership.  Further, leaders can share insights about challenges and successes during the previous leadership term.  If certain Medical Staff members have been difficult to work with, it might be helpful to inform the incoming Chief of that fact – and any hot button issues that are still sizzling.  If certain Medical Staff members have been helpful to you as a leader (for example, by showing a willingness to sit on an ad hoc committee or hearing panel), it can be helpful to relay information about that as well.  Further, if you have come to know about helpful resources or techniques during your term as Chief, now is the time to teach the incoming Chief about those things, so that he or she does not have to recreate the wheel.
    • If you conducted any collegial conversations with a colleague that you did not document, remember to sit down with the incoming Chief of Staff over the next few months to give him or her a “heads up.” That way, if similar concerns arise during their term, they will know that they are not the first to encounter such issues and may need to take a more progressive approach to managing the issue.
    • Consider working intimately with the incoming Chief of Staff over the next few months so that he or she will be fully prepared to step into your shoes in December. Discuss proposed agendas for upcoming meetings, show the Vice Chief how you work with the Medical Staff Office or other support professionals to gather and distribute materials in advance of the meeting (and provide notice of meetings), copy the Vice Chief of important communications and memos related to the job, and invite the Vice Chief to attend meetings, particularly if those meetings will discuss issues that are unlikely to be finalized by the end of the year.  Now is your opportunity to “train” the incoming Chief for the job.  And if he or she can find the time to engage, it will likely make the job of Chief that much easier to tackle when December rolls around.
    • Finally, if the leadership structure at your Hospital does not already formalize the role of the immediate past Chief of Staff, consider whether that would be helpful. Many Medical Staffs utilize the past-Chief on a Leadership Council (a small group of the most involved leaders, which triages complicated clinical peer review issues and directly manages many professionalism and practitioner health concerns).  Others utilize the past-Chief(s) as chairs or members of important committees, such as the Credentials Committee or the multi-specialty peer review committee, thus allowing those committees to benefit not only from the experience, but also the institutional memory, of the past-Chief.  Even if you are not ready to take on another term of leadership after six long years of service, consider making yourself available as an advisor to other leadership bodies on an as-needed basis going forward.  We generally recommend that the Medical Staff Bylaws and related documents acknowledge that the past-Chief will serve as an advisor to other leaders (if for no other reason than to make clear that the past-Chief is entitled to the same immunities as other leaders and his or her actions are covered by the same peer review confidentiality and privilege protections).

July 18, 2019

QUESTION:              If we allow registered dieticians (“RDs”) to order therapeutic diets, do we have to grant them privileges through the Medical Staff?

ANSWER:                 Yes, you do according to CMS.  This is based on a change made in 2014.  Traditionally, CMS restricted the ability to order therapeutic diets to “practitioners responsible for the care of the patient.”  However, in its Final Rule dated May 12, 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.

CMS went on to explain the rationale for this change in the Final Rule as follows:

In order for patients to have access to the timely nutritional care that can be provided by RDs, a hospital must have the regulatory flexibility either to appoint RDs to the medical staff and grant them specific nutritional ordering privileges or to authorize the ordering privileges without appointment to the medical staff, all through the hospital’s appropriate medical staff rules, regulations, and bylaws.  In either instance, medical staff oversight of RDs and their ordering privileges would be ensured.  Therefore, we proposed revisions to §482.28(b)(1) and (2) that would require that individual patient nutritional needs be met in accordance with recognized dietary practices.  We would make further revisions that would allow for flexibility in this area by requiring that all patient diets, including therapeutic diets, must be ordered by a practitioner responsible for the care of the patient, or by a qualified dietitian or other clinically qualified nutrition professional as authorized by the medical staff and in accordance with State law.  We believe that hospitals that choose to grant these specific ordering privileges to RDs may achieve a higher quality of care for their patients by allowing these professionals to fully and efficiently function as important members of the hospital patient care team in the role for which they were trained.  In the proposed rule, we stated that we believe hospitals would realize significant cost savings in many of the areas affected by nutritional care.

However, not all states allow for this type of flexibility.  For example, in our home state, Section 111.27 of the Pennsylvania Code states that therapeutic diets must be prescribed by a physician.  Accordingly, any hospital that wants to allow RDs to practice in this manner must first obtain an exception from the Pennsylvania Department of Health in order to implement the approach outlined in the new CMS Final Rule.

Also keep in mind that allowing RDs to practice in this way is not required; rather, it is at the discretion of each individual hospital, as explained in a series of responses to comments in the Final Rule:

Comment: Another commenter asked for clarification on whether the proposed requirement only provides a hospital with the option of credentialing and privileging a dietitian.

Response: The requirement, including the revisions we are finalizing here, does not require hospitals to credential and privilege dietitians as a condition of participation, but, as previously stated, allows for it as an option if consistent with State law.

Comment: A few commenters stated that they were concerned about ordering diets for critically ill patients or making specific patients “NPO.” They further state that they would feel comfortable ordering diets only if there was a “‘diet order per dietitian’ order from the doctor.”

Response: As we have stated, the requirement does not require dietitians and nutrition professionals to order diets, but only allows for it as an option if consistent with State law and if a hospital chooses to grant such privileges after considering the recommendations of its medical staff.  An individual dietitian or nutrition professional would then need to apply for these ordering privileges.