Author: jwilbert

July 31, 2025

Posted on by jwilbert

QUESTION:
What are some general guidelines for reinstating an employee from FMLA leave?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA
The Family Medical Leave Act (“FMLA”) generally requires an employer to restore an employee to the same job to an “equivalent” job the employee had when they took their FMLA leave.  An “equivalent job” is a job that is virtually identical to the original job in terms of pay, benefits, shifts, conditions, and other terms and conditions of employment.  An employee is entitled to any unconditional pay increases, including unconditional bonuses, which occurred while on FMLA leave, as well as conditional pay increases conditioned on seniority or length of service if employees taking the same type of leave for non-FMLA reasons would receive such increases.  Notably, if a bonus is conditioned on achieving a specific goal and the employee does not meet the goal due to FMLA leave, the employer need not pay the bonus unless the employer pays said bonus to employees taking the same type of leave for a non-FMLA reason.  Additionally, any benefits the employee accrues prior to taking FMLA leave must be available to the employee when they return from leave.

Conversely, if the employer takes an action on the employee’s position that would have affected the employee whether or not they were on FMLA leave, the employee on FMLA leave is not protected from said action.  For example, if an employer eliminates a shift or decreases overtime, the employee returning from FMLA leave would not be entitled to return to the eliminated shift or original overtime hours.  If the employer lays off the employee during FMLA leave, the employer must be able to show that the employee would have been laid off during the FMLA leave period, regardless of whether the employee would have been on leave.  An employer may also decide not to restore a “key employee,” who is defined under the FMLA as a salaried FMLA-eligible employee who is among the highest paid 10% of all employees within 75 miles of the worksite.

If the employee fails to return to work after FMLA leave expires, the employer may recover from the employee its share of health plan premiums paid during the employee’s unpaid FMLA leave unless the reason the employee cannot return to work is due to (1) the continuation, recurrence, or onset of a serious health condition of the employee or their family member (or a serious injury or illness of a covered service member that would otherwise entitle the employee to FMLA leave) or (2) other circumstances beyond the employee’s control. Such “circumstances beyond the employee’s control” include situations such as where a parent chooses to stay home with a newborn child who has a serious health condition; the employee is laid off while on leave; or the employee’s relative or another individual has a serious health condition, and the employee needs to provide that person with care.  The employer may thereafter require the employee to provide supporting medical certification to confirm said continuation, recurrence, or consent of the serious health condition.  If the employee does not provide the supporting medical certification within a timely manner (typically 30 days of the request), the employer may recover the health benefits premiums paid.

Employers should be aware of other federal laws that may apply in addition to the FMLA, including the American with Disabilities Act and the Pregnancy Discrimination Act, as well as state-specific laws.  For example, if an employee on FMLA leave is a “qualified individual” with a “disability” within the meaning of the ADA, the ADA requires their employer to make reasonable accommodations absent undue hardship.

If you have a quick question about this, e-mail mtonocbonilla@hortyspringer.com.

July 24, 2025

Posted on by jwilbert

QUESTION:
How far back do we have to go when verifying affiliations for locum tenens physicians during the credentialing process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:
Unfortunately, there aren’t any hard and fast rules or guidance when it comes to this question.  The Joint Commission acknowledged this in an FAQ that was first published on April 11, 2016, by noting that “[t]here is no standard requirement to verify hospital/other healthcare organization affiliations, clinical affiliations, clinical responsibilities, or work history for an applicant.”  The FAQ can be found here.

If you are performing delegated credentialing (i.e., payor enrollment), the NCQA standards (which apply to insurers and their delegates) do have a discrete requirement which provides as follows:  “The organization obtains a minimum of the most recent 5 years of work history as a health professional through the practitioner’s application or CV.  If the practitioner has fewer than 5 years of work history, the time frame starts at the initial licensure date.”

That being said, many hospitals go back ten years when verifying affiliations, and this is the recommendation of at least one national credentialing organization.  However, a time frame of ten years can result in a hospital needing to verify an overwhelming number of affiliations for locum tenens who often practice at numerous hospitals each year.  Because of this, a hospital may want to focus on and require affiliation verifications for the ten most recent and/or active affiliations for a locum tenens applicant or ten affiliations where the locum tenens had the most activity/practiced for the longest period within the previous ten years.  This should give you sufficient information to get a good picture of their practice and if it doesn’t, your policy language should permit you to verify additional affiliations.  Finally, remember, if there are any questions or concerns raised about the locums’ practice, you can ask follow-up questions; the burden is on the applicant to provide information to resolve those questions, and their application should be held incomplete until such information is furnished.

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

January 23, 2025

Posted on by jwilbert

QUESTION:
Now that there is a new Presidential administration, we hear a lot about government efficiency and regulations.  What can a new administration do about regulations?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY M. CASALE:
First, the Executive branch gets to determine whether to issue new regulations.  One of the Executive Orders issued on the first day of the Trump administration was a freeze on new regulations.  Only time can tell whether and for how long that freeze will last.

As for existing regulations, except for regulations that are subject to the “Congressional Review Act” that is described below, current regulations cannot be rescinded without going through the same notice and comment process that caused the regulations to be enacted in the first place.  Any such action will then be subject to judicial review.

But there is an exception to the process needed to rescind a federal regulation that has been created by a little known law called the “Congressional Review Act” (the “CRA”).  The CRA was enacted in 1996.  The provision in the CRA to keep an eye on is the section of the CRA that applies to final federal regulations, interim final regulations, guidance documents, and policy memoranda that are published within 60 legislative days of the end of a presidential term.  In case you were wondering, this law does not apply to judicial appointments

The CRA requires regulatory agencies to submit the applicable rules, regulations, and guidance documents to both houses of Congress and to the Government Accountability Office (“GAO”) before they can officially take effect.  Congress has 60 legislative days to review a rule.  If Congress does nothing, then the rule takes effect.  However, if a simple majority in the House and the Senate (filibuster rules do not apply) do not like the rule/regulation/guidance, they can issue a “resolution of disapproval.”  Once the “resolution of disapproval” has passed, unless it is vetoed by the President, the rule/regulation/guidance document is dead.  While the CRA states that “no determination, finding, action, or omission under this chapter shall be subject to judicial review,” the scope of the CRA’s bar on judicial review continues to be litigated.

The CRA is relevant now that there is a change in the President and the Republican Party has a majority in the Senate and the House.  History also tells us to expect to hear more about this law.  The CRA was only used once before, and only three times since the end of, the first Trump administration.  However, after President Trump was elected the first time (at which time the Republican Party also had a majority in the House and Senate), the CRA was used 16 times to invalidate Obama/Biden Administration enacted rules.  It will be interesting to see if history repeats itself and, if so, which Biden/Harris Administration rule/regulation/guidance document will become a victim of the CRA.

If you have a quick question about this issue or any of the cases discussed this week, please e-mail Henry Casale at hcasale@hortyspringer.com.

If you want to find more information on the healthcare-related regulations that have been affected by the CRA or the new Administration, the Stark Law, the Anti-Kickback statute, the FCA, the SuperValu decision, the demise of the Chevron Doctrine, and a whole lot more, please join Dan and Henry in Nashville at our Hospital-Physician Contracts and Compliance Clinic, April 24-26.

October 17, 2024

Posted on by jwilbert

QUESTION:
Our leadership team is getting a lot of conflicting information as to what we can and cannot do regarding political campaigns.  Where can we go to find the rules?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICK CALABRESE:
A 501(c)(3) organization cannot participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.  The word “any” is emphasized because no de minimis amount of political intervention is permitted and the penalties can be harsh – penalties range from a warning, to an injunction, to a tax on prohibited political expenditures, to revocation of tax‑exempt status.

Since the penalties can be so serious, the IRS has provided a number of guides to help hospitals recognize and to avoid these penalties:

Rev. Rul. 2007‑41 provides 21 examples of Political Campaign Dos and Don’ts

April 12, 2024, Congressional Research Service Guide

August 19, 2024, IRS FAQ about the ban on Political Intervention

2024 IRS Mini Course on the ban on Political Intervention

We also recommend this short podcast by HortySpringer partners Dan Mulholland and Henry Casale in which they review the rules and also discuss the guidance from the IRS in terms of what a hospital can and cannot do this election season.

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

August 1, 2024

Posted on by jwilbert

QUESTION:
Our Medical Staff Bylaws allow the MEC or Board to be represented by a lawyer at a medical staff hearing only if the practitioner who requested the hearing is also planning to be represented by a lawyer. We recently went through a hearing where this caused some issues, because the physician who was the chair of the MEC at the time the Committee made its adverse recommendation was not available to present the MEC’s case at the hearing. No one else wanted to step up to advocate the MEC’s position at the hearing. Since the practitioner did not choose to be represented by his lawyer, we had to scramble to find someone to represent the MEC at the hearing. We wish we could have used our lawyer. Is there a better way to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is a better way to handle this! You will be glad to know that neither the Medicare Conditions of Participation for Hospitals nor the accreditation standards prohibit hospitals or their medical staffs from being represented by a lawyer at a hearing, even if the practitioner is not represented. Additionally, the Health Care Quality Improvement Act (“HCQIA”), which grants a safe harbor for immunity for the hospital and those who engage in peer review activities on behalf of the hospital, does not prohibit the hospital or its MEC from having legal representation. The HCQIA does require you to permit the physician who requested the hearing to have legal representation at the hearing, and to provide notice to the physician of that (and other) rights to which he is entitled at the hearing. But if the physician fails to take advantage of those rights – including the right to be represented – there is no obligation on the part of the hospital or MEC to make the same sacrifice. So, it is completely within your discretion to amend the Medical Staff Bylaws to make representation at hearings a right of both parties (without regard to whether the opposing party decides to be represented). Of course, you should always check with your counsel first, so that any applicable state laws and regulations can be consulted (just in case those include more stringent hearing provisions).

While you are free to (and probably should) adopt Bylaws language that provides for a universal right to legal representation at medical staff hearings, you should consider a different course of action when conducting professional review activities that are part of the collegial, progressive steps of the peer review/professional practice evaluation processes. We have long recommended that the peer review process be conducted as it was originally intended: peer-to-peer, without the meddling of legal counsel. After all, the whole point of “peer” review has always been to ensure that those who have the clinical expertise and ethical/professional obligations of the medical profession are at the forefront of reviewing their colleagues’ work and assisting with continuous performance improvement. Lawyers play no role in this process. Having lawyers present at collegial conversations and interventions can only hamper conversation and increase defensiveness. It is sure to stifle the process.

For this reason, we have always recommended that Bylaws documents and peer review policies state that no lawyers are allowed (both for the peer reviewers and for those subject to the review process) at these types of meetings. Your policy might allow for rare exceptions to this general rule, where requested by the practitioner subject to review and for good reason, but only if the exception is agreed to by the committee/body conducting the peer review activity. Further, we recommend that such exceptions rarely be made. Importantly, however, if an exception is made to allow the practitioner to bring a lawyer to a meeting, the peer review body should also be granted the same exception (allowing its legal counsel to be present, if it so desired).

In sum, at a medical staff hearing, the practitioner will always be entitled to be represented by counsel if he or she wishes. Therefore, the MEC and Board are not in any way compromising the interests of the physician if the Bylaws provide them with the unqualified right to utilize counsel for representation at the hearing (regardless of whether the physician chooses to have legal representation). By contrast, in routine peer review activities at the Hospital, the practitioner will almost never be entitled to be represented by counsel and, in turn, it would be unfair to allow the MEC and Board to utilize legal representation at meetings that are held pursuant to that process – unless an exception has been made to the general rule, permitting the practitioner to bring counsel to a meeting.

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

July 25, 2024

Posted on by jwilbert

QUESTION:
We are confused about whether an applicant for Medical Staff appointment and clinical privileges is entitled to a hearing because of his failure to disclose certain unfavorable information and our decision to not process his application.  The physician claims that he is entitled to a hearing.  How should we handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK
While it is always important to consult requirements under state law, which may address situations when a hearing is required, your Medical Staff Bylaws or Credentials Policy (“Bylaws”) should clearly define the consequences for certain events and the circumstances that give rise to a hearing.  For example, if the physician failed to disclose an “accusation” filed against him by the state licensing board and such information is requested on the application, the Bylaws should spell out the results of failing to disclose such information requested on the application.  Specifically, the Bylaws should state that any misstatement in, or omission from, the application is grounds to stop processing the application. A decision not to process an application for these reasons should not entitle the applicant to a hearing or appeal (and this should be clear in your Bylaws).

With that in mind, it also makes sense to review your application forms to confirm that the application questions are seeking information that you need to make an informed decision about someone’s qualifications.  For example, your application should not only seek information on past actions by licensing boards, it also should ask for information on pending actions.  Confirm that the questions on the application form are consistent with provisions in the Bylaws with respect to the threshold eligibility criteria that someone must satisfy for eligibility for appointment.  If one of your threshold eligibility criteria requires an applicant to “have a current, unrestricted license to practice that has never been subject to any restrictions, conditions, or probationary terms and have never had a license to practice in any jurisdiction denied, revoked, restricted or suspended by a state licensing agency,” then there should be a corresponding question on the application seeking this information.

Finally, your Bylaws should place an obligation on members to notify the Medical Staff Office of any change in information provided as a part of the application and state that a failure to do so may result in administrative relinquishment of appointment and clinical privileges.  This permits the Medical Staff and Hospital to evaluate any changes in an individual’s qualifications, weigh those changes against eligibility criteria, and assess the appropriateness of any applicable consequences under the Bylaws.  Unless state law requires it, an automatic relinquishment of appointment and clinical privileges because of failure to continuously satisfy threshold eligibility criteria does not give rise to a Medical Staff hearing.

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

July 11, 2024

Posted on by jwilbert

QUESTION:
A physician recently resigned employment with a group that’s affiliated with the hospital.  Is there anything we should consider with respect to the physician’s Medical Staff appointment and privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI
Yes, you’ll want to evaluate whether the physician is still eligible for continued appointment and privileges under the Medical Staff Credentials Policy (or Bylaws).

Malpractice insurance is often provided through employers, so physicians who resign their employment often lose their malpractice coverage.  Most Medical Staff Credentials Policies state that such insurance is a threshold eligibility criterion for appointment and privileges and that physicians will “automatically relinquish” their privileges if they lose their insurance.  (If your Credentials Policy doesn’t say this, it should!)  So, one step is to determine if the physician has acquired new malpractice insurance.

Similarly, Credentials Policies often require physicians to have acceptable coverage arrangements to be eligible for appointment and privileges.  Resignation from a group may mean that those coverage arrangements are no longer in place, so the existence of appropriate coverage should be confirmed with the physician.

Finally, all the other eligibility criteria in the Credentials Policy should be reviewed to determine if the physician’s resignation from employment will cause the physician to be ineligible.  For example, some Credentials Policies require the physician to maintain an office within the hospital’s service area as a condition of being granted appointment and privileges.

On the employment side, a physician’s employment contract may contain an “incident and coterminous” provision saying that the physician’s privileges will automatically be resigned upon termination of the contract.  Similarly, the contract may include a restrictive covenant prohibiting the physician from practicing in a defined geographic area for a certain amount of time after the contract ends.  However, the employer (not the Medical Staff) is responsible for enforcing such contractual provisions.

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

December 21, 2023

Posted on by jwilbert

QUESTION:
I have always found the OIG’s past “Compliance Guidance” to be vague and not particularly helpful.  Is there anything more recent that will provide an analytical framework to comply with the Anti-kickback statute?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The Anti-kickback statute is an intent-based statute.  So, the OIG can be forgiven to a certain extent for their “it depends” guidance on compliance with this law.  However, given the fact the Anti‑kickback statute is a criminal statute and that federal health care program claims resulting from a violation of this law will also constitute a violation of the False Claims Act, even the OIG has realized that more definitive guidance is required.

The OIG seems to have heard your plea for help, and has provided the following analytical framework for compliance with the Anti-kickback statute on Pages 12-14 of the November 6, 2023, OIG General Compliance Program Guidance (“GCPG”).

When attempting to identify problematic arrangements under the federal Anti-kickback statute, some relevant inquiries to explore and consider can include the following.  This list of questions is illustrative, not exhaustive, and the answers to these questions alone are not determinative as to whether an arrangement violates the federal Anti-kickback statute.

Key Questions:

(1)        Nature of the relationship between the parties –

        • What degree of influence do the parties have, directly or indirectly, on the generation of federal health care program business for each other?

(2)        Manner in which participants were selected –

        • Were parties selected to participate in an arrangement in whole or in part because of their past or anticipated referrals?

(3)        Manner in which the remuneration is determined –

        • Does the remuneration take into account, either directly or indirectly, the volume or value of business generated?
        • Is the remuneration conditioned in whole or in part on referrals or other business generated between the parties? Is the arrangement itself conditioned, either directly or indirectly, on the volume or value of federal health care program business?  Is there any service provided other than referrals?

(4)        Value of the remuneration.

        • Is the remuneration fair market value in an arm’s-length transaction for legitimate, reasonable, and necessary services that are actually rendered?
        • Is the entity paying an inflated rate to a potential referral source? Is the entity receiving free or below-market-rate items or services from a provider, supplier, or other entity involved in health care business?
        • Is compensation tied, either directly or indirectly, to federal health care program reimbursement?
        • Is the determination of fair market value based upon a reasonable methodology that is uniformly applied and properly documented?

(5)        Nature of items or services provided.

        • Are the items and services actually needed and rendered, commercially reasonable, and necessary to achieve a legitimate business purpose?

(6)        Federal program impact.

        • Does the remuneration have the potential to affect costs to any of the federal health care programs or their beneficiaries?
        • Could the remuneration lead to overutilization or inappropriate utilization?

(7)        Clinical decision making.

        • Does the arrangement or practice have the potential to interfere with, or skew, clinical decision making?
        • Does the arrangement or practice raise patient safety or quality of care concerns?
        • Could the payment structure lead to cherry-picking healthy patients or lemon-dropping patients with chronic or other potentially costly conditions to save on costs?

(8)        Steering.

        • Does the arrangement or practice raise concerns related to steering patients or health care entities to a particular item or service, or steering to a particular health care entity to provide, supply, or furnish items or services?

(9)        Potential conflicts of interest.

        • Would acceptance of the remuneration diminish, or appear to diminish, the objectivity of professional judgment?
        • If the remuneration relates to the dissemination of information, is the information complete, accurate, and not misleading?

(10)      Manner in which the arrangement is documented.

        • Is the arrangement properly and fully documented in writing?
        • Are the parties documenting the items and services they provide? Are the entities monitoring items and services provided?
        • Are arrangements actually conducted according to the terms of the written agreements (when written to comply with the law)?

Is this perfect guidance – No.  But it is a significant improvement over any compliance guidance that the OIG has provided in the past.  In fact, we find the OIG’s New General Compliance Guidance to provide an excellent framework for compliance with the Anti-kickback statute, and a number of other federal laws that affect health care providers.

If you have a quick question about this, e-mail Henry Casale at hcasale@hortyspringer.com.

For an in-depth discussion of the OIG’s November 6, 2023, OIG General Compliance Program Guidance, please check out the Horty Springer Health Law Expressions Podcast  “New OIG General Compliance Program Guidance by Dan Mulholland and Henry Casale.”

 

June 1, 2023

Posted on by jwilbert

QUESTION:
Our hospital recently employed a small group of urologists.  The hospital wanted more control over the group’s on-site hours and scheduling.  While three of the urologists are great culture fits, there was concern about one group member whose behavior with staff has raised eyebrows in the past, but no action was ever taken.  There was an incident last week in the cafeteria where this troublesome urologist allegedly yelled and confronted one of our hospital administrators.  The administrator wants to deescalate the situation and hasn’t filed a complaint, but how should we as a medical staff handle the matter and should we work with the hospital as the urologist’s employer?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This is an excellent question and the administrator’s response is completely understandable, but the best practice in this situation is to follow your Medical Staff Professionalism Policy.  If medical staff leaders become aware that a practitioner’s behavior in the hospital may be inconsistent with the expectations for medical staff members, the leadership can and should review that behavior under the Professionalism Policy.  The review by the medical staff leadership is not dependent on the administrator filing a complaint.

The Professionalism Policy should require that appropriate fact-finding take place and that the urologist has an opportunity to provide input.  This fact-finding and input will allow the medical staff leaders to understand the context in which the dispute occurred.  Review of the urologist’s behavior should not be in isolation, and if the previous issues alluded to in your question have been recorded, medical staff leadership should be using those to provide context to the fact-finding.  The question for your medical staff leadership would be whether there’s a behavioral trend that needs to be addressed via collegial intervention, a performance improvement plan, or other means.

As for working with the urologist’s employer, the hospital, we highly recommend doing so.  While the medical staff’s final action and the employer’s final action regarding the confrontation are independent of each other, the fact-finding process of each can be beneficial to the other.  Within proper channels, the sharing of information can allow both the employer and your medical staff to make a more informed disposition of the urologist’s confrontational behavior.

If you have a quick question about this, e-mail John Wieczorek at jwieczorek@hortyspringer.com.

 

March 9, 2023

Posted on by jwilbert

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

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

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

This does not mean the case should completely fall out of review; system-issues that were identified outside of the care being provided by the anesthesiologist are still relevant and should be addressed.  We would just advise that any issues related to the anesthesiologist’s practice at the hospital be put aside.