June 30, 2016

QUESTION:        We have a group of surgeons on our staff who are interested in employing a physician assistant.  Wasn’t there a new Stark regulation that will allow our hospital to provide recruitment assistance to the group to assist it with the costs of employing this PA?

ANSWER:           The good news is that, as of January 1, 2016, there is a new Stark exception that will permit a hospital to provide recruitment assistance to a physician group to recruit a nonphysician practitioner.  The bad news is that the exception is limited to groups who provide primary care services or mental health services.  So a surgical group would not qualify for this exception.

Even if the exception did apply, an income guaranty is not permitted.  Rather, the recruitment subsidy cannot exceed 50% of the actual compensation paid to the nonphysician practitioner (including signing bonus and benefits) during the first two years the nonphysician practitioner is employed by the group.

Since the Stark Law only applies to compensation arrangements involving a physician or a physician group, the Stark Law would not apply if the hospital decided to provide assistance, such as educational loan assistance, directly to the nonphysician practitioner.  However, remember the Anti-kickback Statute still applies even if the Stark Law does not.  So, you cannot provide that recruitment assistance if it is intended to induce the nonphysician practitioner (or his/her employer) to refer or otherwise generate business for the hospital.

So while the new Stark nonphysician practitioner recruitment assistance exception is helpful, it is limited both in the types of medical specialists who may receive this recruitment assistance and the type of the recruitment assistance that may be provided.

June 23, 2016

QUESTION:         We’re trying to re-design our peer review process.  One of the biggest obstacles is the perception that any review will be subjective, and depend on the characteristics of the reviewer rather than the quality of care provided.  Is there any way to address this problem?

ANSWER:           Here are a few ways to make the peer review process more objective:

  1. Adopt Evidence-Based Protocols to Define Excellent Care Ahead of Time. Evidence-based protocols should be used to define excellent care.  Once a protocol has been adopted, physicians should still be free to not use it as long as they document their rationale for doing so.  If a physician fails to follow a protocol that has been properly adopted and fails to document a valid reason for doing so, the physician could be sent an “Informational Letter” or given some other form of feedback to encourage compliance.  Physicians who habitually fail to comply with adopted protocols could be evaluated through the peer review process, because the physician’s noncompliance could be a sign that the individual is using outdated or ineffective methods.  The peer review policy should define the threshold number of Informational Letters that will lead to a more focused review.

    A deliberate and transparent process should be used to adopt protocols, with input being sought from all relevant specialties.  The Medical Staff, acting through its designated committees, should begin by identifying a limited number of clinical situations in which there is little doubt about the efficacy of an evidence-based protocol.  Ideally, these would be commonly occurring situations, so that adopted protocols will have the greatest possible impact.  The use of protocols in the peer review process could be expanded over time based on experience.

  1. Build Checks and Balances into the Process.  There should be a committee that engages in active oversight of the peer review process.  This role can be filled by a multi-specialty “Professional Practice Evaluation Committee,” or PPEC.  If the PPEC questions a decision made during the review process or identifies a problematic pattern of decisions made elsewhere in the process, it can seek (or provide) a “second opinion” about the matter.  This additional layer of review will promote consistency between specialties as to how clinical concerns are being addressed.
  1. Manage Conflicts of Interest. Often, peers with the clinical expertise needed to review a case will have a conflict of interest, such as being a competitor or partner of the physician under review.  Such individuals are not necessarily precluded from participating in the review of a case.  For example, a conflict that would disqualify an individual from performing certain roles in the process (e.g., sitting on a hearing panel) would not necessarily prevent the individual from conducting the initial review of a case early in the process.  Peer review policies should explicitly address such issues and outline clear rules as to when individuals with conflicts are precluded from participating in various levels of the review process.  Peer review policies should also make clear that individuals may be recused from the review process if their participation would lead to an undue perception of bias.
  1. Develop Standard Review Forms.  Forms used to document reviews should be detailed enough to prompt reviewers to consider the same, fundamental issues for each case.  However, they should not be so detailed that they overwhelm reviewers or waste their time.  Care should be taken to ask questions in a manner that elicits relevant, candid responses.  For example, a review form might ask if any complications were avoidable, if proper steps were taken to avoid the complication, and if the complication was recognized and managed appropriately.