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.

July 11, 2019

QUESTION:        Our Medical Staff Bylaws state that once a quorum has been achieved at a meeting, business may continue and all actions taken will be binding.  I presume this means that the Committee can take action even if, during the course of the meeting, members depart or recuse themselves (and leave the meeting).

Recently, we had a quorum for an MEC meeting where three of our 10 members were absent (in other words, we had seven of 10 members present, which was sufficient to satisfy our quorum requirement of 50%).  Three additional members of the Committee recused themselves when a particular physician matter came up for consideration, citing previous involvement in the matter (two of the three physicians who recused themselves had filed complaints against the physician; the other was heavily involved in prior collegial efforts with the physician and practices in the same specialty as an economic competitor).  After the recusals, we had only four of 10 voting members present to consider the matter.

There was disagreement within the remaining members about whether it would be appropriate to proceed — particularly given that serious action (such as a suspension) was being contemplated.  If the Bylaws say the Committee can “go ahead” even when participation drops below a quorum, is there any problem?

ANSWER:            Medical Staff Bylaws (and related documents) serve a very important role of setting guidelines and rules for the conduct of Medical Staff leadership activities and clarifying rights and responsibilities of Medical Staff members.  To that end, it is important to follow the documents whenever possible.  In your case, you did a good job of following the “rules,” established by your Bylaws.  When your meeting was convened, you ensured that you had satisfied the quorum requirement.  Thus, as per the terms of the Bylaws, the MEC was free to proceed in conducting any of the activities that are within its duties (including considering matters of physician peer review and professional review action).

Whether it is a good idea to proceed in a situation such as that which you described is a different matter than whether it is allowed.  And the answer is, “it depends.”

In hospitals that have smaller Medical Staffs and fewer leaders, it can sometimes be difficult to achieve high quorum requirements for meetings.  So, many such Medical Staffs choose to have low quorum requirements (e.g., “whoever is present” or 10%) and meetings are regularly conducted with few people present.  This allows the Medical Staff leadership to get things done, even though only a few people might be actively participating in leadership activities.  In larger hospitals with (presumably) more resources, some Medical Staffs choose more substantial quorum requirements, particularly for Committees that are deemed to have more substantial and important duties – such as the Credentials Committee, Peer Review Committee, and MEC.

While larger quorums can serve some purposes (e.g., giving assurances to Medical Staff members that policy decisions will not be made by individuals, but, instead, by more diverse bodies), they also can have downsides.  Larger quorums can be difficult to achieve – even in larger organizations – if the culture is such that only a small number of individuals are invested in leadership, rather than purely focusing on clinical duties.  Furthermore, even when practitioners are active in leadership, there are times (such as the situation you described) when the circumstances at hand make it difficult to obtain and sustain a significant quorum.

We encourage Hospital and Medical Staff leaders to thoughtfully consider conflict of interest recusal requirements (for example, when drafting PPE policies) that reflect the organization’s culture and resources.  After all, in some organizations, if all who were “involved at a prior level” were required to recuse themselves from any additional consideration of the matter, nearly all members of the MEC might be conflicted out each time a physician conduct matter came before the Committee (since so many of the leaders on the MEC serve as department chairs and officers who handle collegial matters before they ever get to the MEC level).

Further, even when the Bylaws and policies of the organization state that it is acceptable to proceed, we encourage Hospital and Medical Staff leaders to weigh the pros and cons, benefits and risks.  In the situation you described, though the MEC was free to proceed and take action with respect to the peer review matter before it, the MEC might have increased the appearance of fairness by withholding action on the matter until a greater number of MEC members could be present.  After all, although three members were recused and could not participate at this meeting or any future meeting, you described that three members were also absent.  Presuming they were able to attend a future meeting to act on this matter, then the MEC would be able to have seven of 10 members making the decision, instead of just four of 10.  Technically required?  No.  But whenever something as serious as an adverse professional review action is being considered, it makes sense to try to have the determination made by a larger body of individuals, where practical.  It helps if you end up in a Medical Staff hearing (more witnesses to rely on!).  It helps to give the practitioner who is the subject of the action the sense that this is not a personal matter – but rather a matter agreed on by a wide spread of his or her colleagues.

What if the matter is urgent and action cannot wait?  What if patient safety is clearly at risk?  What if you are never able to get more than seven people to attend MEC meetings?  Or the three absent individuals almost never attend?  Those are all things that would have to be considered.  In some situations, it may make sense to proceed with only four of the 10 members present and voting.

But remember, just because the Bylaws say you can does not always mean that you should.

June 27, 2019

QUESTION:        We heard that some hospitals have recruited physicians, had them sign employment contracts, then “red flags” are raised during credentialing, or the physician is denied appointment and clinical privileges.  Is there any language in an employment contract to help in those cases?

ANSWER:            We recommend that all employment contracts contain a provision that states:

If the Physician fails for any reason to commence performing services on the Commencement Date, the Employer may, at its option, cancel this Agreement by serving written notice of cancellation to the Physician.  In the event notice of cancellation is sent, the parties shall have no further obligation to one another.

The provision does not require an employer to cancel the contract, but does give the employer the option.  So, if the physician does not commence performing services because the application has not been acted on because the employer or the hospital is gathering further information, the employer may decide that it does not want to exercise the option at that time.  Conversely, if the “red flags” are significant, the employer most likely would cancel the contract.

While this language is useful to include, it is not a guarantee that a physician who has been recruited will go away quietly.   In fact, we have seen a number of cases where the physician still sues, so the best practice is to better align your recruitment and credentialing decisions so that you do not find yourself in the situation where a new recruit has any significant “red flags.”  For additional information, join us for our audio conference

Aligning Your Employment and Credentialing Decisions
July 2, 2019 – 1:00 pm to 2:00 pm (ET)

or contact us for information on how to obtain a CD or MP3.

June 20, 2019

QUESTION:              I noted that one of the cases that was in this week’s HLE arose as a result of a hospital granting temporary privileges to an applicant for medical staff appointment.  While we do not routinely grant temporary privileges, they are useful from time to time.  How much risk is there in granting temporary privileges?

 

ANSWER:                 While temporary privileges should not be routinely granted, it is not unusual for a hospital’s medical staff bylaws to state that temporary privileges may be granted to applicants for initial appointment whose complete application is pending review by the Medical Executive Committee and the Board. In order to be “complete” there must be verification of licensure, training or experience, current competence, and an ability to perform the privileges requested. In addition, the bylaws should state that in order to be eligible for temporary privileges, an applicant must (i) have had no current or previously successful challenges to licensure or registration, (ii) have not been subject to involuntary termination of medical staff membership at another organization; and (iii) have not been subject to involuntary limitation, reduction, denial, or loss of clinical privileges.   The bylaws may include other criteria that must be met before temporary privileges are granted.

Additionally, the hospital must query and evaluate information from the National Practitioner Data Bank and check the Office of Inspector General’s List of Excluded Individuals/Entities before temporary (or any privileges) can be granted.  Finally, the grant of temporary privileges should be time limited consistent with the standards of the applicable accreditation organization.  According to The Joint Commission standard “Temporary privileges for applicants for new privileges are granted for no more than 120 days.” 

It is not clear, but it appears from the facts of the case described above, that the hospital’s hospitalist group had such a need for the nocturnist that it wanted to use temporary privileges to rush a candidate through the hospital’s credentialing process.  The temporary privileges were granted and rescinded in 2012, but the litigation did not end until 2019.  In this case, not only did granting temporary privileges fail to fill the nocturnist position, but also caused the hospital years of litigation.

The best way to avoid these kinds of situations and the endless litigation that sometimes ensues is only to grant temporary privileges to applicants after a thorough vetting, after confirmation that there are no red flags and only under the above-described circumstances.

June 13, 2019

QUESTION:         A registrant at our April Complete Course for Medical Staff Leaders in New Orleans submitted a question about waiver of threshold eligibility criteria for an applicant  (a general practitioner who did an internship in 1985 but not a residency and so cannot even sit for the boards, who has been doing only outpatient primary care since).  The criteria specify that grandfathering is possible for those who finished training before 1985; after 1985, a physician must achieve board certification within three years of appointment.  All references are excellent. What can we do?

ANSWER:            The question does not reveal why this physician wants to be on the medical staff or whether privileges would be sought in addition to appointment.  In order to be eligible for any privileges, regardless of medical staff category, any applicant must be able to demonstrate current competence, according to CMS. Often, the eligibility criteria require that a candidate has practiced in at least two of the preceding four years in a hospital setting. Many organizations have a category for office-based practitioners, without any privileges. Some physicians wish to have a connection with the hospital for purposes of continuity of care when they refer patients for inpatient care to hospitalists.  Possibly this physician wants appointment to be on health plan panels.  (The latter is not a reason, in itself, to grant appointment.) When a physician is appointed to any category of the medical staff, even a category that does not carry with it any privileges, the public (and health plans) may rely on the hospital’s imprimatur.

The courts have upheld grandfathering in certain circumstances, but usually that is limited to individuals who have been on a medical staff for a number of years who have a track record that can be evaluated, when new policies require board certification for all applicants after a certain date. The hospital is not required to process an application for initial appointment from those who are not eligible.  In the questioner’s situation, the only option other than declining to process the application based on ineligibility may be to consider appointing this individual to a membership-only category with no privileges. To consider even that type of appointment, many organizations would obtain evaluations from physicians to whom the outpatient practitioner has referred patients, to be sure that this outpatient practitioner is referring patients for the right reasons and doing the right pre-referral assessment.

As a final point on waivers generally, an occasional waiver in exceptional circumstances is usually preferable to modifying standards to fit a particular unusual situation and risking opening the door to others. Anytime a waiver is to be considered, it’s best to follow a process, specified in the Credentials Policy, and include a statement that the waiver is not intended to set a precedent for anyone else.  And, any waiver should be based on exceptional qualifications of the applicant and the best interest of the hospital and community.

June 6, 2019

* * *

QUESTION:        Our Medical Staff year ends this month, so we have new officers and department chairs coming on board.  Every year we struggle with getting these individuals up to speed, since they typically have little to no leadership experience. What are our options to offer training to the uninitiated?

ANSWER:            We hear this time and time again wherever we go.  Physicians are elected or appointed to key roles that impact credentialing, peer review, and, most importantly, patient safety, yet they are given no guidance or training on how to perform these important functions. Fortunately, you have a number of options available.

Many organizations have taken it upon themselves to develop internal leadership training opportunities.  This could range from holding quarterly “retreats” supplemented by external experts in the field (an option we have been very honored to partner with a number of hospitals and systems on) to developing “in house” training modules that are provided to new leaders as a part of their onboarding process. One of our favorites was an outgoing Chief of Staff who wanted to pass on her experiences and lessons learned by developing a “Cup of Coffee” training course for tips on how to hold a productive collegial intervention.

Others have simply created a Medical Staff leader handbook that passes along important information about responsibilities, the importance of confidentiality, the legal protections that are available to Medical Staff leaders, etc.

Of course, we feel that one of the best ways to provide education to your new leaders is to send them to one of our national seminars.  Horty Springer has been offering seminars for physician leaders for more than 40 years, covering a range of topics related to credentialing and peer review. We just released our seminar schedule for 2019/2020, so consider joining us in Las Vegas, Naples, Savannah, or Chicago.  We’d love to see you and your new leaders there!

May 30, 2019

QUESTION:        We have some advanced practice nurses and physician’s assistants who are lobbying to become members of the Medical Staff.  Some physicians support the idea, but others aren’t so sure.  What are you seeing out there?

ANSWER:             In our experience, most Medical Staffs are composed of physicians, dentists, oral surgeons and, increasingly, podiatrists.  In some states, it is required that others be appointed to the staff, such as psychologists in Ohio.  State laws still vary. For example, in Pennsylvania, a hospital wanting to include podiatrists must seek an exception from the Department of Health, but it is readily granted.

As CMS has amended the Conditions of Participation and Interpretive Guidelines in recent years, the door has been opened:

§482.22(a) Standard: Eligibility and Process for Appointment to 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 other categories of physicians (as listed at §482.12(c)(1)) and non-physician practitioners who are determined to be eligible for appointment by the governing body.

***

Interpretive Guidelines §482.22(a) The hospital’s governing body has the responsibility, consistent with State law, including scope-of-practice laws, to determine which types/categories of physicians and, if it so chooses, non-physician practitioners or other licensed healthcare professionals (collectively referred to in this guidance as “practitioners”) may be privileged to provide care to hospital patients.  All practitioners who require privileges in order to furnish care to hospital patients must be evaluated under the hospital’s medical staff privileging system before the hospital’s governing body may grant them privileges.  All practitioners granted medical staff privileges must function under the bylaws, regulations and rules of the hospital’s medical staff.  The privileges granted to an individual practitioner must be consistent with State scope-of-practice laws.

CMS provided the following statement in 2014:

For Information Only – Not Required/Not to be Cited

CMS expects that all practitioners granted privileges are also appointed as members of the medical staff.  However, if State law limits the composition of the hospital’s medical staff to certain categories of practitioners, e.g., only physician practitioners, there is nothing in the CoPs that prohibits hospitals and their medical staffs from establishing certain practice privileges for those specific categories of non-physician practitioners excluded from medical staff membership under State law, or from granting those privileges to individual practitioners in those categories, as long as such privileges are recommended by the medical staff, approved by the governing body, and in accordance with State law.  (79 FR 27114-27115, May 12, 2014)

Today, it is becoming more common for a category to be added to the Bylaws for Advanced Practice Clinicians, and APCs may serve on committees with vote.

Join Barbara Blackmond and Josh Hodges for the next Grand Rounds audio conference on June 4, “Q&A on Advanced Practice Clinicians,” where they will discuss practical issues, including credentialing, privileging, peer review, collaborative practice in states allowing independent practice for some APCs, the role in emergency call, hearing rights and emerging issues, such as the role of APCs in admission, discharge, and  consults.

 

May 23, 2019

QUESTION:        We have a group practice that is affiliated with our health system.  The group practice employs physicians and advanced practice clinicians.  Two months ago, one of the employed physicians was given notice that the group was not going to renew his contract and his employment would expire in 90 days.  The contract provides that when his employment expires, his appointment and privileges at all health system hospitals expires too.

Last night, the Medical Executive Committee at one of our system hospitals started an investigation into complaints about this physician’s behavior.  If the investigation is not completed by the time his contract expires are we required to report this to the National Practitioner Data Bank as a resignation while under an investigation?
ANSWER:            The answer to this question is no.  You would not have to file a report with the Data Bank because the expiration of appointment and privileges was triggered by an expiration in his employment contract.   There is helpful guidance on this issue in the NPDB Guidebook.  In a related scenario, outlined in the Q&A: Reporting Clinical Privileges Actions section of the Guidebook, it noted that a report would not have to be submitted: “The termination was not a result of a professional review action and, therefore, was not reportable. It does not matter that the employment termination, which was a result of the hospital’s employment termination process, automatically resulted in the end of the practitioner’s clinical privileges.”

While your situation is a little different, the same principle should apply.  The physician did not resign during, or in exchange for not conducting, an investigation.  Rather, the physician’s appointment and privileges automatically expired as a result of the contract expiration.  The controlling act was the expiration of the physician’s contract which affected his appointment and privileges.

As a practical aside, we recommend that serious consideration be given to when an investigation should be commenced.  The Medical Executive Committee should only commence an investigation when it has exhausted collegial, progressive steps or if there are extreme circumstances, such as a pending precautionary suspension.

If the subject physician is employed by a system-affiliated group, there is nothing wrong with considering the physician’s employment status prior to the Medical Executive Committee commencing a formal investigation.  Generally, in these situations, when a physician’s employment is set to expire or be terminated, there would be no need for a formal investigation.  The problem behavior should not be ignored but less formal steps, such as the implementation of a performance improvement plan for behavior, could be taken in the interim to facilitate the smooth and orderly operation of the hospital.  A formal investigation is not likely the best use of your time or resources.

May 16, 2019

QUESTION:        A registrant at our recent Complete Course for Medical Staff Leaders in New Orleans in April asked:  Can we call a past Department Chief, as you did in the case study, without the applicant’s specific consent?

ANSWER:          Yes, you can and should! Your Bylaws or Credentials Policy, and application forms, should contain an authorization, as a condition to consideration of the application, to obtain full information about an applicant’s qualifications, including education, training, practice experience, current competence, and professionalism from all educational institutions and organizations where the candidate has practiced.  You should contact department chiefs at hospitals where an applicant has most recently practiced.  The applicant may not have listed recent past department chief(s) as references, but you are not limited to contacting those listed as references by the applicant.  Those providing information should be released by the applicant to the fullest extent permitted by law.