Question Of The Week

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

December 11, 2025

Posted on by Courtney Patterson

QUESTION:
Our health system employs doctors through a “captive PC” where the CMO is the sole shareholder of the professional corporation but has no right to any distribution of profits or other rights normally related to ownership in a private medical group.  Does the Stark Law still apply to arrangements between the hospitals in our system and the captive PC?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:
No.  In 2020, the definition of “ownership or investment interest” for the purpose of the Stark Law was amended to state that it does not include:  “A titular ownership or investment interest that excludes the ability or right to receive the financial benefits of ownership or investment, including, but not limited to, the distribution of profits, dividends, proceeds of sale, or similar returns on investment.”  42 CFR §411.354(b)(3)(vi).  This codified the conclusion of CMS Advisory Opinion AO-2005-08-01.  In that Advisory Opinion, CMS  concluded that stock ownership by physicians in a nonprofit corporation did not constitute an ownership or investment interest for the purposes of the Stark Law because the stock held by the physician-shareholders exhibited none of the benefits typical of stock ownership.

So, the fact that the hospitals in your situation may subsidize losses incurred by the captive PC would not, in and of itself, have Stark Law implications as it would if the hospital was subsidizing an independent practice.  However, to the extent that there would likely be indirect compensation arrangements between the hospitals and the employed physicians, it would still be necessary to make sure the compensation paid to the doctors reflects the fair market value of their services and is commercially reasonable.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

August 14, 2025

Posted on by Courtney Patterson

QUESTION:
We just discovered that we hired a nurse who was listed on the OIG’s List of Excluded Individuals and Entities while she worked for us.  What do we need to do and how does the OIG determine damages for a provider such as a nurse who does not make referrals of federal health care program beneficiaries to the Hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Unfortunately, if a hospital or other provider who received federal health care program reimbursement such as Medicare, Medicare and/or Tri-Care employs or contracts with  an individual or entity that is listed on the OIG’s List of Excluded Individuals and Entities (the “LEIE”), once discovered, the health care entity must make a self-disclosure to the Office of Inspector General (“OIG”) using the OIG’s self-disclosure protocol.

There is a section of the OIG’s protocol that specifically addresses self-disclosures involving excluded individuals. That Section of the Protocol states that the self-disclosure must include: the identity of the excluded person and any provider identification number; the job duties performed by that person; the dates of the person’s employment or contractual relationship; a description of any background checks that the disclosing party completed before and/or during the person’s employment or contract; a description of the disclosing party’s screening process (including any policy or procedure that was in place) and any flaw or breakdown in that process that led to the hiring or contracting with the excluded person; a description of how the conduct was discovered; and a description of any corrective action (including a copy of any revised policy or procedure) implemented to prevent future hiring of excluded persons.

One additional requirement that you might not expect is that the OIG also requires that before a self-disclosure involving an excluded individual or entity can be submitted to the OIG, the disclosing party must screen all current employees and contractors against the LEIE.

OK so once you have this information, you need to provide damage information.  Typically, damages for a self-disclosure are based on the items or services furnished, ordered, or prescribed by the excluded person.  However, the OIG understands that when the excluded person provided items or services that are not billed separately to Federal health care programs, such as your self-disclosure that is due to your hiring an excluded nurse, the damages amounts can be difficult to quantify.

In this instance, the OIG requires you to first determine your total costs of employment or contracting during the period of exclusion which includes all salary and benefits and other money or items of value, health insurance, life insurance, disability insurance, and employer taxes paid related to employment of the person such as the employer’s share of FICA and Medicare taxes.

This total amount is then multiplied by the disclosing party’s revenue-based Federal health care program payor mix for the period of time that the excluded individual was employed by the hospital.

If the disclosing party can measure the Federal payor mix for the department or unit in which the excluded person worked, it is appropriate to apply that payor mix. If the departmental payor mix cannot reasonably be measured, the disclosing party must apply the payor mix for the whole hospital. When the disclosing party is using a Federal health care program payor mix, the disclosure must include a separate calculation for each Federal health care program. For example, if the disclosing party’s Federal payor mix is 60 percent, the disclosure should break down how the Federal health care programs make up that 60 percent, such as 40 percent Medicare, 10 percent Medicaid State A, 5 percent Medicaid State B, and 5 percent TRICARE.

The resulting amount will be used as a proxy for the amount paid and the single damages to the Federal health care programs resulting from the employment of the excluded person.   The OIG Self-Disclosure Protocol states “The specific multiplier that we accept may vary depending on the facts of each case. OIG’s general practice in CMP settlements of SDP matters is to require a minimum multiplier of 1.5 times the single damages, although we determine in each individual case whether a higher multiplier may be warranted.”

So prepare yourself − this self-disclosure will not be inexpensive to resolve.  But take solace in knowing that by submitting the self-disclosure, you will put this unfortunate issue behind you, and the corrective actions that must be implemented as a result of the OIG’s Self-Disclosure Protocol should prevent you from ever having to submit another self-disclosure due to your hiring or contracting with an excluded individual or entity.

If you have a quick question about this, e-mail Henry Casale at HCasale@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

July 17, 2025

Posted on by Courtney Patterson

QUESTION:
Is our responsibility under EMTALA complete once we conduct an Emergency Screening Exam and determine that since we do not have the ability to treat the patient, the patient will be transferred to another hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
No.  There are two separate duties under EMTALA – the duty to conduct an Emergency Medical Screening Exam and a duty to stabilize the patient – your obligations under EMTALA are not complete until both duties have been satisfied in a reasonable manner.

A hospital must satisfy EMTALA’s first duty by providing an appropriate Medical Screening Examination (“MSE”) to any individual who comes to the hospital’s Emergency Department requesting examination or treatment.  While an MSE is not required to be conducted by a physician, if a non-physician will conduct the MSE, they must be qualified, and have been approved by the Board, to perform an MSE.

It is important to note that EMTALA does not impose a national standard of care on how to screen patients.  Therefore, a hospital is not required to provide an MSE that is comparable to an MSE offered in other hospitals, nor is a hospital required to provide more than an initial MSE.  However, if the screening is so cursory that it is not designed to identify a patient’s acute and severe symptoms to alert the ED personnel of the need for immediate medical attention to prevent serious bodily injury, the hospital may be found to have failed in its duty to conduct an MSE.

Once the MSE determines that the patient is suffering from an emergency medical condition, the next obligation that EMTALA imposes on the hospital is to provide such further medical examination and treatment as may be required to stabilize the patient’s emergency medical condition, either for admission or to transfer the patient to another medical facility.  (BREAKING NEWS – be sure to read next week’s HLE as a court just found, for what we can determine is the first time, that a court has disagreed with HHS’s long held position that EMTALA’s obligations end once a patient is admitted to a hospital.)

EMTALA imposes strict guidelines on patient transfers.  A patient in an emergency medical condition may be transferred to another medical facility if after being informed of the risks of transfer and of the hospital’s treatment obligations, the individual requests to be transferred (“patient-initiated transfer”), or based on the information available at the time of transfer, the physician determines that the medical benefits to be received at another medical facility outweigh the risk to the patient of being transferred (including, in the case of a woman in labor, the risks to the unborn child) and a certification to this effect is signed by the physician (“physician-initiated transfer”).

Where a transfer is permitted, the hospital’s duty to stabilize the patient prior to transfer requires the hospital’s ED to provide “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.”

Therefore, a hospital may not transfer a patient with an emergency medical condition which has not been stabilized.  The hospital’s duty under EMTALA to “stabilize” the patient prior to transfer includes: (i) appropriate treatment of the patient while awaiting transfer: (ii) taking the steps reasonably required to minimize the risks associated with the transfer; and (iii) making sure that the patient is transported in an appropriate manner that takes into account the patient’s emergency medical condition.

A patient will have a claim against the hospital for a breach of EMTALA’s duty to stabilize pending transfer where the patient is able to show that the hospital did not satisfy this duty.

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

January 16, 2025

Posted on by Courtney Patterson

QUESTION:
How should we handle distributing peer review materials prior to a meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
In general, we recommend that documents not be distributed before meetings.  You always take a risk when you distribute peer review materials prior to a meeting, because if the materials are lost, misplaced, or treated carelessly, peer review protections could be lost.  Confidential materials should not end up in the hands of someone who is not part of a legally protected peer review committee.

But, we also realize that sometimes confidential materials have to be reviewed prior to a meeting, because it may be a huge pile of documents.  So, here are a couple ideas:

You could keep all of the peer review materials in a central location, like the medical staff office.  Committee members can have access to the materials, but won’t be able to take them out of the office.  Also, here, don’t allow any copies to be made, unless the VPMA, CMO or CEO allows it.

Another idea is to put the committee member’s name and phone number on the materials, along with a number, like 1 of 12.  The committee members should be told that no copies may be made, and that the documents should be returned after the meeting.  Then, after the meeting, the materials should be collected, all of the numbers accounted for, and the copies destroyed – only keep the originals as official records.

One final idea that can be used with the first two ideas is to stamp all of the confidential materials with a stamp that states “Protected and Confidential Pursuant to the State Peer Review Statute.”  Again, a red flag goes up if the stamp is seen outside the meeting room.

During the pandemic, everything became virtual, which raised a whole host of issues.  Everyone is now more comfortable sharing peer review documents electronically through protected portals and the like, but there is still a need to be cautious.  So, sit down and think everything through on how to tackle this.  For example, think about:

  • How do you control access? (passwords, secure email, etc.)
  • Do you send emails to gmail accounts or only to hospital accounts?
  • Are you going to blind the records? Prohibit copies?

We advise pulling in your facility’s tech experts to work with you as a part of this process.  Which videoconferencing platform is secure for HIPAA and other privacy laws?  Create a list of approved software programs.

We’ve developed a policy on virtual meetings.  The highlights of the policy are:

  • Virtual participants should be required to maintain compliance with all policies relating to confidentiality, data privacy, electronic communications and security. We recommend that all meetings begin with a reminder about confidentiality, privacy and security, and that this be reflected in the minutes.  Quorum and voting requirements apply as if at an in‑person meeting.
  • The best practice is to prepare for calls by testing new cameras and microphones before the meeting. Also, minimize outside distractions, such as the dog coming in and out of the picture, hearing the neighbors fighting, or the kid next door testing out the new exhaust on his Dodge Challenger.  You can’t soundproof the walls, but do try to find a secluded, quiet space.

Some practical tips for virtual meetings…

  • Remember that you’re in a professional setting. During the pandemic, there were stories about people making dinner, brushing their teeth, etc., while on Zoom.  Avoid that and give the meeting the attention it deserves.
  • Remember that mute is your friend. Keep microphones on mute unless speaking, and always assume that the mic is hot.  Pre‑pandemic, there’s the famous story about President Ronald Reagan forgetting that he had a hot mic, and saying “My fellow Americans, I’m pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes.”  Then there are the pandemic stories – all members of a San Francisco area school board resigned after they were heard making disparaging comments about parents at a virtual board meeting.  Always assume the mic is hot and the camera is on.

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

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.

October 10, 2024

Posted on by Courtney Patterson

QUESTION:
We are amending our medical staff governance documents and considering giving Advanced Practice Professionals (“APPs”) a larger role in medical staff affairs.  Do you have any recommendations based on your experience working with other hospitals?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
With the ever-increasing role that APPs, such as physician assistants and nurse practitioners, play in the delivery of health care in hospitals, we are seeing many hospitals across the country wrestle with this question.  Unfortunately, there is not a “one-size-fits-all” answer and the appropriate solution needs to take into consideration federal and state regulations and the culture of your medical staff and hospital, among other things.

Let’s start with the regulations.  The Centers for Medicare & Medicaid Services Conditions of Participation (“CoPs”) defer to state law when it comes to appointing APPs to the 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…non-physician practitioners who are determined to be eligible for appointment by the governing body.”  42 C.F.R. §482.22(a) (emphasis added).  However, you want to be sure to check your state’s laws and regulations to determine if those sources are more restrictive.  By way of example, Pennsylvania limits medical staff membership to physicians and dentists.  28 Pa. Code § 107.2.  Even though Pennsylvania has a “structured exception” allowing hospitals to admit podiatrists to the medical staff, there is no corresponding exception for APPs.  Compare Pennsylvania’s restrictive approach with the approach taken by Colorado, which allows both physicians and non-physician practitioners to be on the medical staff.

Even in the states that permit APPs to be on the medical staff, we are seeing a variety of approaches.  Some hospitals make APPs eligible for medical staff membership, including appointment to the Active Staff.  That being said, these hospitals impose appropriate limitations on their prerogatives when compared to physician members of the Active Staff such as not being able to serve as the President of the Medical Staff (the Interpretive Guidelines to the CoPs say that the President of the Medical Staff “must be a doctor of medicine or osteopathy, or, if permitted by state law where the hospital is located, a doctor of dental surgery, dental medicine, or podiatric medicine”).  While we don’t see this approach taken frequently, it is more common with Critical Access Hospitals or smaller hospitals where the majority of clinical services are provided by APPs.

A more common approach is gradual integration of APPs into medical staff functions.  For example, the medical staff may begin by creating an APP Credentials Committee which reviews applications of APPs and reports to the regular Credentials Committee, or appoint APPs to the Credentials Committee to tap into their expertise when it comes to state scope of practice laws for APPs, how they practice, and what they are permitted to do in similarly-situated hospitals.  Some hospitals are also appointing an APP to the Medical Executive Committee and Multi-Specialty Peer Review Committee.  It varies with respect to whether they are given voting rights since we have seen some physician members of the medical staff express discomfort with an APP, who may have a supervising agreement while practicing in the hospital, evaluating the care they provide as a part of one of these committees.

In conclusion, APPs are increasing in number and have a growing role in providing clinical services in hospitals.  If your medical staff has not yet addressed this issue, the odds are that it will need to in the future.  Nevertheless, these are interesting and exciting issues whose solutions can result in a more vibrant and robust medical staff and hospital.

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

October 3, 2024

Posted on by Courtney Patterson

QUESTION:
We have a patient scheduled for surgery who is deaf and we want to make sure that we are providing reasonable accommodations in accordance with the Americans with Disabilities Act. With that said, do we have to hire an in-person sign language interpreter, or can we rely upon video remote interpreting services to communicate with the patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
It’s great that you’re planning ahead to ensure that you can communicate effectively with your patient, especially in situations like these where communication is critical to quality care.  Under Title III of the Americans with Disabilities Act (“ADA”), hospitals and other places of public accommodation are required to provide “auxiliary aids and services” to individuals with disabilities to ensure effective communication.  “Auxiliary aids and services” include qualified interpreters who are either on site or available through video remote interpreting (“VRI”) services.

If your hospital is considering VRI services in lieu of in-person interpreters, please note that, in accordance with the ADA, these services must provide:

  • real time, full motion video and audio over a dedicated, high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
  • a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;
  • a clear, audible transmission of voices; and
  • adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 CFR § 36.303.

The type of auxiliary aid or service will vary depending on the complexity of the communication involved and the context in which the communication is taking place.  While the ADA encourages consulting with the individual to determine the type of aid needed, it is the ultimate decision of the hospital or public accommodation so long as the chosen method of communication results in effective communication.  Therefore, as long as the VRI services provided meet the requirements listed above, and it is determined that VRI is an appropriate method of communication under the circumstances, then it is likely sufficient for a hospital to offer a patient such services as a reasonable accommodation rather than provide and pay for an in-person interpreter.

If you have a quick question about this, or any other hospital-related ADA issue, e‑mail Mary Paterni at mpaterni@hortyspringer.com.

September 26, 2024

Posted on by Courtney Patterson

QUESTION:
Since election season is upon us, what are the rules regarding 501(c)(3) tax‑exempt organizations participating in political activity?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
This is directly from the IRS website:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.  Violating this prohibition may result in denial or revocation of tax‑exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances.  For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non‑partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get‑out‑the‑vote drives, would not be prohibited political campaign activity if conducted in a non‑partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

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