Author: jwilbert

August 6, 2026

Posted on by jwilbert

QUESTION:
We placed a provider on a Performance Improvement Plan (“PIP”) because of clinical concerns.  The PIP requires the provider to identify another physician willing to serve as a proctor.  The provider has identified a physician whom we believe would be a suitable proctor.  How should we communicate our expectations and ensure that the proctor understands the responsibilities of the role?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The best way to ensure that the proctor understands the role, performs it as expected, and provides the information you need, is to meet with the proctor before the proctorship begins.

Proctors are not bound by the provider’s PIP and often are not privy to all the details surrounding its implementation. Although they may agree to serve in the role, they may not fully understand their responsibilities.

Meeting with the proctor in advance allows you to (1) clearly explain the expectations the proctor must meet and (2) identify the information which the proctor will need to report on or attest to.

This discussion is an opportunity to define the parameters of the proctorship.  For example:  How many procedures must be proctored? What procedures must be proctored?  Should the proctor discuss the treatment plan with the provider?  How long must the proctor be present during each procedure – from beginning to end, or only for a specified portion?

You should also specify the information the proctor must provide.  For example, did the provider make appropriate decisions regarding treatment plans and procedures?  Did any complications occur?  Did the proctor identify any other concerns?  It may be helpful to provide a standardized review form for the proctor to complete that includes all the details you may be looking for the proctor to be able to report on.  Over the years, HortySpringer has developed tools – including a Proctoring Review Checklist – that simplify this process for committees that use proctors. Standard forms like this ensure the committee clearly outlines everything they are looking for and makes it easy for the proctor to relay that information.

Finally, as lawyers, we would be remiss not to mention at this meeting the importance of explaining the legal protections available to the proctor while serving in this role.  Understanding those protections can help the proctor feel comfortable providing the candid, thorough feedback you need.

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

July 30, 2026

Posted on by jwilbert

QUESTION:
A patient recently requested a list of all individuals who accessed her medical record.  Do we have to give it to her?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
A patient has the right of access under HIPAA to her protected health information (PHI) contained in a “designated record set.” 45 CFR §164.524(a)(1).  A “designated record set” is defined as including:

    • Medical records and billing records about individuals maintained by or for a covered health care provider.
    • Enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan.
    • Other records used, in whole or in part, by or for the covered entity to make decisions about individuals.

The patient in question seems to be requesting copies of the audit logs showing who accessed her records and when.  The audit logs are security/audit controls required under the HIPAA Security Rule (45 CFR §164.312(b)) for compliance and breach detection, not for clinical or decision-making purposes.  Therefore, they are not part of a “designated record set” and thus the patient does not have a right of access to that information.

Another section of the HIPAA regulations gives patients the right to ask for an accounting of disclosures of their PHI.  45 CFR §164.528(a).  However, this does not include disclosures for treatment, payment or health care operations.  The audit log would record access for treatment, payment or health care operations so the information in the audit log would not be subject to the disclosure accounting rule.

Of course, if the patient brought suit against the hospital, she would be able to get access to the audit logs and other parts of the electronic health record through normal discovery procedures.

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

July 2, 2026

Posted on by jwilbert

QUESTION:
We recently had reasons to take a close look at how long it’s taking for cases to make their way through the peer review process and were surprised to see that it’s often more than seven months – even for issues that appear to be relatively straightforward.  Our peer review committee chair said that, frankly, the committee is drowning; there are so many cases going through that they discussed whether the committee should meet twice a month, but she’s afraid that will lead to a mass exodus in members.  She also said that, lately, they are spending so much time on behavioral issues that the clinical reviews seem like they are taking a backseat.  And when it comes to behavior, even those are dragging, often because it takes so long for the psychiatric evaluations that the committee asks for to come back.  Any suggestions?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL-OBRIEN:
Yes, several!  First, in terms of the process, consider having separate committees to manage clinical peer review, professional conduct and health rather than one that has to manage all three.  While they absolutely all fall under the umbrella of “peer review,” the issues require different types of expertise.  Specifically, clinical issues require clinical expertise – which should fall to a multidisciplinary peer review committee representative of the major specialties on the medical staff (and, depending on the size of the medical staff, could also include smaller, specialty-specific subcommittees that perform certain lower-level functions and then feed into the overarching peer review committee).

By comparison, professional conduct and practitioner health issues are challenging issues that require leadership expertise, not clinical expertise. For these issues, consider developing a smaller, more nimble committee that includes the key leaders on the medical staff – who are also the most seasoned and experienced in dealing with difficult issues (and people!).  Many medical staffs have the same committee (often referred to as a Leadership Council) deal with both of these issues – while others have a Leadership Council manage conduct and maintain a separate practitioner health committee.

You also noted that one thing slowing down the conduct reviews was waiting on psych evaluations to come back – and this is a great reason to make sure that you have fully separate policies addressing professional conduct and practitioner health.  The reality when it comes to unprofessional conduct is that while some conduct issues may be impacted by an underlying health issue, it is actually a very small percentage – and in most cases where health is the underlying cause, the indicator of a potential health issue is a change in behavior, not the existence of unprofessional conduct itself.

When unprofessional conduct continues despite lower-level leadership interventions, there is often a desire to identify a root cause that is more than just the need for behavior change by the practitioner at issue – which is a natural tendency of healthcare providers who spend their careers identifying and treating health issues (i.e., the “normal people don’t act this way” discussion that very often occurs in committees when discussing repetitive behavior issues).  When that type of sentiment is the sole basis for the shift towards a possible health issue (i.e., as compared to a noticeable behavior change or awareness of a difficult issue occurring in a practitioner’s personal life or practice life), committees often require psychiatric evaluations, which tend to result in non-helpful information that can actually sidetrack addressing the behavior at hand (i.e., narcissistic personality disorder diagnoses, etc.).

Redirection from a conduct review to a health review tends to shift the focus away from the specific unprofessional conduct that is at issue – which must change regardless of the underlying origin.  Overall, separate policies with fully separate review processes help to keep the focus on the unprofessional conduct; however, because it is certainly a possibility that health issue could be at the heart of a conduct review, there should be a reference in the conduct policy that would permit shifting a review out of the conduct policy and into the practitioner health policy.

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

June 4, 2026

Posted on by jwilbert

QUESTION:
We have gotten into the habit of recording all our Medical Staff meetings to allow us to go back and take notes. We delete the recording afterwards, but some individuals have raised concerns about the recordings existing in the first place. Is this really something we should be worried about?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
While the idea of using all the technology available to us to help improve efficiency and accuracy sounds great, unfortunately in the medical staff world something like recording meetings can pose a threat to confidentiality and privilege and put the members of your committees at risk for legal action.

In meetings, we want people to speak openly and freely about peer review and patient care. When we make a recording of those meetings it essentially creates a transcript of everything that was said ‑ both good and bad. The recording captures more than the very brief descriptions of what happened that we typically recommend be documented in meeting minutes. Even though the purpose is only to use the recordings to create meeting minutes, if the recording was ever discovered or got into the wrong hands, every person who talked openly and honestly could be at risk.

We also often hear that same argument, “but we delete the recordings right after we are done with them.” Even if you “delete” recordings locally, it is hard to determine for certain if these recordings are held offsite in servers or the mysterious cloud for some indeterminate amount of time. And unfortunately, in many instances, recordings never truly are deleted and can always be retrieved in some format. Additionally, some hospitals are subject to state laws that require them to keep all documentation related to meetings, meaning that, even if it is possible to delete a video recording, the hospital is not legally permitted to do so.

If you do still insist on recording meetings, I would only record things outside of the scope of peer review and patient care. So, if you’re talking general business matters (e.g., what is the hospital hand washing policy) a recording is fine, but as soon as patient care gets discussed, the recording should be paused.

Hypothetically, recording all your meetings for the purposes of note taking seems like a great idea, but in a risk versus reward analysis, it might not be worth it in the long run.

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

February 19, 2026

Posted on by jwilbert

QUESTION:
The physician group practice that is affiliated with our health system wants to develop a peer review process for outpatient practitioners.  Does this make sense and, if so, what are some considerations in setting up such a process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:

Even though an answer to this question involves an evaluation of the unique circumstances of the group practice, there has been a significant increase in interest in this topic.  In our experience, the motivation for wanting an outpatient peer review process makes sense.  The groups with which we have worked are interested in enhanced mechanisms and processes to better evaluate clinical care and address conduct concerns for ambulatory care practitioners, rather than solely relying on the human resources/employment process.  They are also interested in taking advantage of any available peer review protections under state law that may only apply if there is a peer review structure in place.

An outpatient peer review process can be modeled on the process for your hospital’s medical staff.  However, the structure is usually scaled down.  For example, Clinical Specialty Review Committees, if being used for specialty reviews and expertise as a part of the Medical Staff peer review process, are generally not needed for outpatient peer review (but, as noted below, you want to reference your state’s peer review statute to confirm that any chosen structure maximizes protections under the law).  Instead, you can rely on Clinical Specialty Reviewers or assign a member from the outpatient peer review committee who has the specialty expertise or knowledge to perform the case review.

As noted above, an additional consideration is your state’s peer review statute.  If the statute contemplates peer review protections for outpatient peer review, you want to make sure that your process is set up to take advantage of those protections.  By way of example, Colorado law discusses “professional review committees” of “authorized entities” (e.g., hospitals and physician groups).  These professional review committees may share information with one another – for example, from hospital to group and group to hospital.  The committees and their individual members are entitled to certain immunities from liability, and the records of professional review committees are confidential and privileged.  However, for these protections to apply under Colorado law, the authorized entity and professional review committee must have statutorily required policies and procedures in place describing, among other things, hearing and appeal rights for practitioners.  The professional review committee also has to register with the state.  Thus, any peer review policy for an outpatient professional review committee will need to have these requirements addressed to be eligible for the protections in Colorado.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.  Also, tune in to The Brave New World of Ambulatory Peer Review, a podcast from Horty, Springer & Mattern attorneys Ian Donaldson and Charlie Chulack will be available on Wednesday, February 25, 2026 for more on this topic.

 

December 18, 2025

Posted on by jwilbert

QUESTION:
In the Chalifoux case summarized in this week’s Health Law Express, the physician’s participation agreement with the health plan required him to have clinical privileges at an in-network hospital.  Is it common for health plans to require participating physicians to be appointed to the Medical Staff and have clinical privileges at an in-network hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY
CHARLIE CHULACK:
While we here at Horty, Springer & Mattern don’t typically negotiate participation agreements between individual physicians and health plans, we do a significant amount of work on delegated credentialing agreements between hospitals or physician groups and insurers.  Since these agreements delegate credentialing functions for health plan enrollment to hospitals or groups, they contain many of the same requirements as participation agreements.  In our experience, insurers have moved away from a strict requirement that a physician have clinical privileges (including admitting privileges) at a participating hospital.  This makes sense since many physicians practice solely in an outpatient setting and have no need for Medical Staff appointment or clinical privileges at a hospital.  Also, many hospitals rely heavily on hospitalists to manage the care of inpatients, reducing the need for outpatient physicians to have hospital privileges.  What we typically see in these delegated credentialing agreements is a requirement that participating physicians have either admitting privileges at an in-network hospital or an admitting relationship with a physician at such a hospital.  During negotiations of these delegated credentialing agreements, most insurers use an expansive interpretation of an admitting relationship – thus, if the physician is affiliated with an in-network hospital and the hospital has a hospitalist service that is primarily responsible for admitting patients, that is enough to satisfy this requirement.

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

September 25, 2025

Posted on by jwilbert

QUESTION:
We use informational letters as a part of our peer review process.  Is it necessary for us to solicit physician input or feedback before issuing an informational letter?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:
The short answer is “no.”  But first, a little context on informational letters (which can also be referred to as “awareness letters”) – these are a tool in the progressive steps continuum that are designed to address minor performance issues and intended to make practitioners aware of expectations or requirements in, for example, the Medical Staff Rules and Regulations.  Much like the other tools you have in the progressive steps continuum, informational letters are non‑punitive and educational, and they aim to get practitioners to self‑correct using feedback.  Informational letters are triggered when a practitioner does not comply with an objective requirement for the Medical Staff.

Ideally, your multi‑specialty peer review committee should approve in advance a list of objective occurrences for when an informational letter will be sent.  By way of example, most Medical Staffs have requirements in the Rules and Regulations that patients have to be seen by the attending physician daily with a progress note recorded describing the visit.  This requirement could be reflected in your peer review policy or manual as a performance issue that triggers an informational letter.  The key here is that the informational letter is triggered by an “objective” occurrence.  Therefore, whether someone did or did not do something that triggers an information letter should be clear on its face and, because of this, there is usually no need to solicit feedback from the practitioner before issuing the informational letter.  However, if you are addressing an issue and considering an informational letter but have questions for the practitioner about the concern, nothing in your policy should prohibit you from asking those questions.

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

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.