Question Of The Week

November 9, 2023

Posted on by Courtney Patterson

QUESTION:
As a part of the threshold eligibility criteria in our Credentials Policy, physicians are required to be board certified by a board approved by the ABMS or AOA.  Can we accept certification by a foreign board from a physician who has applied for Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a complex question since it may implicate other threshold eligibility criteria in your Credentials Policy.  For example, many medical staffs and hospitals also require a physician to have successfully completed a residency and, if applicable, a fellowship training program approved by the ACGME or AOA.  Thus, if a physician is board certified by a foreign board, it may also mean they did not receive their training in a residency approved by the ACGME or AOA and, consequently, do not meet that criterion as well.

Nonetheless, assuming all other threshold eligibility criteria are met, you may accept certification by a foreign board even though your Credentials Policy requires physicians to be board certified by an ABMS or AOA board.  However, you would first have to go through the waiver of threshold eligibility criteria process outlined in your Credentials Policy.  As an alternative, some hospitals with which we work that repeatedly come across this issue have incorporated a process in their Credentials Policy to use when evaluating whether a foreign board meets the standards of their hospital.  They consider whether the foreign board has comparable certification requirements, including those related to: (1) education and training; (2) letters of attestation or reference; (3) licensing; and (4) written and oral examinations.  A hospital may also give consideration to whether the foreign board is accepted by, for example, the relevant board of the American Board of Medical Specialties for purposes of qualifying for board certification in the United States (e.g., members of The Royal Australian College of General Practitioners are eligible to receive initial board certification through the American Board of Family Medicine) and if the Medical Executive Committee has previously determined that the foreign board meets the standards of the hospital.

It is also important to remember that the burden of demonstrating and producing information to support an applicant’s qualifications lies with the applicant.  This should be specifically stated in your Credentials Policy.  Therefore, if an applicant has certification by a foreign board, the burden is on them to provide information related to the factors described above for evaluating whether the foreign board meets the standards of the hospital.  If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

November 2, 2023

Posted on by Courtney Patterson

QUESTION:
What’s this I hear about having to post a notice in all of our provider-based clinics that patients will be receiving a bill for facility fees?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
It’s technically not required by law – yet.  But a lot of the Medicare Administrative Contractors are recommending it.  Here’s an example from Noridian. The provider-based billing rules, at 42 C.F.R. § 413.65, require that provider-based facilities hold themselves out to the public as part of the main provider.  When patients enter the provider-based facility or organization, they need to be aware that they are entering the main provider and are billed accordingly.  A poster like this is a good way to assure compliance with this requirement.

If you have a quick question about this or the provider-based rules in general, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

October 26, 2023

Posted on by Courtney Patterson

QUESTION:
A new physician in a difficult to recruit specialty just fell into our laps.  When I asked my lawyer to prepare an Employment Agreement with a November 1, 2023 Starting Date, I was sent an agreement with a number of conditions that cannot possibly be completed in a week. Why must lawyers make these things so complicated?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Your lawyer is doing you a favor.

The beginning of an employment relationship is not a simple matter.  The Employer must staff and equip an office for the new physician.  Not something that can be typically done in a week.  However, even if there is sufficient space and personnel for the new physician’s practice, don’t forget that all new employees, including physicians, must complete all required pre-employment screens – that takes time.

But what is often overlooked at the beginning of the legal relationship between a physician and his/her Employer is that since the Employer will be legally obligated to begin to compensate the physician as of the starting date of the agreement, as of that date, the Employer needs to make sure that the physician can perform all of the duties that are set forth in the agreement and (most important to the Employer) that the Employer will begin to be paid for the professional services that are provided by the new physician.

Many commercial insurers take 60-90 days to “credential” a new physician.  They also typically take the position that they have no legal obligation to reimburse the Employer for the professional services that are provided by that physician to the third party’s enrollees until that credentialling process has been completed.  If this process is not timed correctly, the Employer could be on the hook for up to three months of the physician’s salary with no revenue to cover that cost.

But let’s now look at the fact that a physician in a needed specialty fell into your lap.  I am not saying that this can never happen – but it is more likely than not, that this physician found themself in a situation where they were terminated from their old job and needed a new one fast.

You won’t know whether you are lucky, or stuck with a problem physician, until the Employer and the hospital’s credentialling processes have been completed.  Again, this takes time – time that is well spent!

Just as the Employer wants to be paid for the new physician’s services on their first day of employment, the Employer will also want that physician to be able to exercise clinical privileges as of that date as well.  That cannot happen unless the Agreement states that the Agreement does not begin until the hospital credentialling process has been successfully completed.

That is why we advise our clients that hiring is a process.  It takes time.  While you must be flexible, most hires require 60-90 days’ advance notice to set up the physician’s practice, to complete pre-employment screens, to credential the physician with third-party payers, and to allow sufficient time to complete the medical staff credentialling process.  The Agreement should require all of this to be completed by a date-certain, which is also the “Starting Date” of the Agreement and the date that the Employer has the legal obligation to begin to compensate the physician.

The Agreement should also specifically provide the Employer with the right to cancel the Agreement if the physician fails to complete this process in a timely manner, especially if that delay is caused by a clinical or behavioral concern that is discovered during the medical staff credentialling process.

While it is lawful to pay a reasonable signing bonus to a physician as soon as the physician signs on the dotted line, it is preferable not to be obligated to make any kind of upfront payment until the physician is on site and has begun to provide services as your employee.  However, if a signing bonus is paid before the physician begins to provide services, then the Agreement should make it clear that that upfront money must be repaid if the physician fails to start when required by the Agreement.  It is also a good idea to pro-rate the signing bonus so that a portion of that payment must be repaid if the physician does not remain employed for a minimum period of time.

If you have a quick question about this, e-mail Henry Casale at hcasale@hortyspringer.com.  If you want an in-depth discussion of Hospital-Physician employment relationships, compensating physicians and APPs, the Fraud and Abuse laws, the False Claims Act and much more, join me, Dan Mulholland and Hala Mouzaffar in Phoenix from November 16-18, for our Hospital-Physician Contracts and Compliance Clinic.

October 19, 2023

Posted on by Courtney Patterson

QUESTION:
Our hospital is in the process of refining our peer review process.  Our existing framework involves a multi-tiered review where cases are evaluated and assigned a level of complexity or concern, ranging from Level 1 to Level 4.  We are actively exploring enhancements to our current process.  Any suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The peer review process is one of the most essential processes a hospital has in its toolbelt.  While a hospital’s peer review process should be tailored to fit its culture and needs, we do have some general guidelines that we suggest for everyone.

(1)        Ditch Numbering Systems
Reviewers should be assessing whether there was a concern with the care provided and how that concern could be addressed.  The problem with numbering is that no case ever fits neatly into one category.  So, more energy is put into deciding if a case is a 2 or 3 than what really matters in the review process (i.e., how to help a practitioner improve).

(2)        Incorporate Progressive Steps
Only rarely does peer review need to result in disciplinary action.  Some events can be addressed through a simple conversation or a letter educating the provider on what went wrong.  Other times, tools like performance improvement plans (for example, additional training) might do the trick.  Whatever you choose, your process should emphasize educational, collegial options with disciplinary action being the rare last resort.

(3)        Be Flexible
Do not create such a strict peer review policy that you box yourself in.  It’s not reasonable to create a rigid structure (i.e., first offenses will receive an educational letter, second offenses will receive a collegial conversation, etc.).  Make sure your process is constructed in a way that gives your peer review committee flexibility to identify the most effective performance improvement option under the circumstances.  A fundamental tenet should be to use the least restrictive option that will keep patients safe and help the practitioner to improve.  On the other hand, if a real red flag case comes through, you want to make sure your policy clearly states you can handle the case appropriately (by taking more significant action right away, if needed) instead of being required to work your way through each of the steps in the policy.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

October 12, 2023

Posted on by Courtney Patterson

QUESTION:
As of last week, we no longer maintain a contract with a particular insurer, resulting in a change of network status.  How do we handle patients who are now considered “out-of-network”?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
The No Surprises Act has anticipated this issue.  Moving forward, if a contract terminates between a plan and provider or facility, the NSA applies continuity of care protections to individuals who are considered a “continuing care patient” and who are in the process of receiving items or services from the facility for which their insurance would cover.

In the event a plan’s contract is terminated with a provider or facility, the plan will notify its enrollees who are continuing care patients.  These patients will have the right to elect continued transitional care from the provider and can choose to have the same benefits as they would have had under the plan had the contract not terminated.  This election would only apply to the course of treatment currently being furnished by the provider or facility that qualifies the individual as a continuing care patient.

If the patient elects to continue treatment with their provider or facility, then the provider or facility must (1) accept payment from the plan for items or services furnished to the continuing care patient as payment in full and (2) continue to adhere to the policies, procedures and standards imposed by the plan for the individual as if the termination has not occurred.

According to CMS, this election may continue for the earlier of 90 days from the time the patient is notified of the plan’s termination or until the date on which the patient no longer qualifies as a continuing care patient with the provider or facility.

As an example, if a pregnant woman learns at her next obstetrician appointment that her physician no longer maintains a contract with her insurance, she would be eligible for continuity of care protections because she is receiving ongoing treatment for her pregnancy.

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

October 5, 2023

Posted on by Courtney Patterson

QUESTION:
Our Bylaws state that an individual is not eligible to have his or her application processed if the applicant does not satisfy our threshold eligibility criteria.  Occasionally, this results in an application being held up in terms of processing even though we feel fairly certain that the applicant will – eventually – meet the relevant eligibility criteria.  For example, when a new physician is being recruited to a local group, that individual will often file the application for medical staff appointment prior to moving, in order to get to work immediately upon relocating.  But, since that individual often lacks a home or practice office within the requisite geographic area (close enough to respond to patients), and may lack a coverage arrangement with a member of the Medical Staff, professional liability insurance, in-state licensure, and/or a DEA registration linked to an address within the state (since the local employment arrangement has not yet commenced and/or routine paperwork associated with relocation is still in process), the applicant is ineligible.  Is there any way to prevent unnecessary delays in cases such as these?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Yes!  Especially with the physician and health care worker shortages that are being faced by so many health care facilities around the country, it is essential to eliminate delays in credentialing – particularly where those delays do not improve quality or patient safety.  Of course, threshold eligibility criteria are incredibly important in administering an efficient and effective credentialing process, but scenarios such as the one you describe can lead to frustration and lost time and money.

All of this can be fixed by incorporating language into the Medical Staff Bylaws or Medical Staff Credentials Policy specifying that applications can be processed, despite the fact that an applicant does not meet a threshold criterion, provided that finalization of any action on Medical Staff membership or Clinical Privileges will be held at bay until such time as satisfactory evidence of the individual’s satisfaction of the relevant criteria is received by the Hospital.  We call this “Processing Applications Pending Resolution of Ineligibility.”

A few important things to note:

  • Where an eligibility criterion cannot be resolved, the new language and process would not be invoked and the application would not be processed. For example, if an applicant were a convicted felon, that is not an eligibility criterion that is in the process of being resolved and, in turn, that applicant could easily be informed at the outset that he or she is ineligible and the application will not be processed.  Case closed.
  • Credentialing is a time-consuming business – you don’t want to waste the time of your leaders processing applications for individuals who are likely to have a complex resolution to the matter that rendered the individual ineligible. For example, if an applicant had their privileges revoked at the hospital where they last held Medical Staff membership, but has a lawsuit pending against that hospital to challenge the revocation, it would not be wise to process the application pending resolution of ineligibility.  Why?  Amongst other reasons, because doing so would not promote efficiency.  If (and it’s a big IF) the lawsuit were successful and the individual had his or her membership and privileges reinstated at the prior facility (or had a court determine that the other hospital acted wrongfully), while that would render the individual eligible for consideration at your hospital, it would also raise a lot of questions and warrant careful subjective scrutiny of the matter through your credentialing process.  So, even if you had been processing the application pending that judgment, you would still have lots of credentialing work to do (some of which may be repetitive of the work already done on that application).
  • In the end, you are most likely to want to generate efficiencies by proceeding with the processing of those applications most likely to move through the process without a hitch once all of the paperwork and logistics are finalized (e.g. those awaiting receipt of a license, where there is nothing in the application to indicate that licensure will be delayed or, alternatively, those who expect to have malpractice coverage on their first day of employment, which will be on an upcoming date with a known group). To achieve this, consider drafting your Bylaws/Credentials Policy language to give your leaders (perhaps the CMO and/or Chief of Staff) some discretion in determining whether an application should be processed – as an exception to the rule – while awaiting resolution of a matter of eligibility.
  • Finally, do not forget to include a process for the Hospital to verify resolution of the relevant threshold criteria before finalizing appointment and privileges. To avoid any mix-ups, some organizations draft their language to allow processing of the application only through the MEC recommendation, holding the application at that point until the CMO verifies evidence has been received verifying that the applicant satisfies all eligibility criteria (for example, a copy of the individual’s license or malpractice certificate is submitted).  If any information submitted in furtherance of resolution raises additional concerns about the applicant, the application should be returned to the Medical Staff Office for consideration and should go back through the credentialing process for this new information to be considered as part of the application (this could occur, for example, if the individual provides proof of having received his or her in-state license, but that licensure is subject to conditions).

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

September 28, 2023

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing, privileging, and peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions as Medical Staff leaders. Legally, there is no support for viewing an employment relationship as a disqualifying factor when it comes to participating in these activities. And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians who do.

Of course, if a specific concern is raised about an individual’s participation in any given process, it always makes sense to consider whether an individual’s employment would result in a conflict of interest under the guidelines that have been adopted by the Medical Staff.  But, practically, it seems difficult to imagine a Medical Staff adopting bylaws documents that would exclude an employed physician from serving in a leadership position – or from otherwise participating in credentialing and peer review activities – given the large number of physicians who are now employed by hospitals and/or their affiliates.

If you have additional questions about this, please contact Ian Donaldson at IDonaldson@hortyspringer.com.

September 21, 2023

Posted on by Courtney Patterson

QUESTION:
We recently received an NPDB report for one of our Medical Staff members.  The Adverse Action Code, used by the hospital in its NPDB report, was “Voluntary Surrender of Clinical Privilege(s), While Under, or to Avoid, Investigation Relating to Professional Competence or Conduct.”  However, the narrative section of the NPDB report reflected that the physician resigned during a “performance improvement plan” (PIP).  We don’t consider a PIP to be an investigation and ordinarily we would not report a physician who resigned during a PIP.

The problem is that the threshold criteria in our bylaws state that an individual is ineligible for appointment, reappointment or continued appointment if they “resign during an investigation or in exchange for not conducting an investigation.”  Our bylaws also provide that failing to satisfy threshold criteria at any time results in an automatic relinquishment of appointment and clinical privileges.

The physician is a longstanding member of our Medical Staff and we have never had any quality or behavior issues with him.  Based on the NPDB Report, he doesn’t seem to meet our threshold criteria and his appointment should be automatically relinquished, at least according to our bylaws.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Before you make any decisions, you are going to need additional information.  You can start with the physician and ask him to provide information regarding the underlying issues that led the other hospital to adopt the PIP.  You are also going to want a copy of the PIP itself.  Your bylaws should allow you to request this information from the physician.  You can also request the physician to sign an authorization so you can get information directly from the other hospital.  This will allow you to understand their side of the story.

Depending on what you learn, it may be appropriate to allow the physician to request a waiver for failing to satisfy one of the threshold criteria.  For instance, if you learn that the PIP was being carried out as part of initial collegial efforts and progressive steps activities, without any history of prior problems, and would not have risen to an investigation in your hospital, you may consider granting the physician a waiver.

The waiver process typically involves all the heavy hitters including input from the department chair and a recommendation from the Credentials Committee and Medical Executive Committee with final action by the Board.  Any grant of a waiver should expressly articulate the reasons supporting the decision.

Even if you decide to grant a waiver, that doesn’t mean you have to ignore the PIP.  If the PIP developed by the other hospital has useful conditions, you may want to adopt some or all of them to help you evaluate the physician’s performance and provide meaningful feedback to him.

The language in the Bylaws pertaining to automatic relinquishment if threshold criteria are not met should include a reference to the waiver process.  Therefore, the granting of a waiver should address and resolve the automatic relinquishment with no need for further action.

Both the threshold eligibility criteria and the automatic relinquishment language in the Bylaws are incredibly useful tools and are two of our “go to” favorites.  As we expand our list of robust threshold criteria and our list of events that trigger an automatic relinquishment, we should also strive to make sure that these are being applied in a way that is fair and reasonable.  Along these lines, it is important to make sure we have adequate information, especially from the involved physician, before making a final decision.  And if occasionally we bend to make sure the result is appropriate under the circumstances, that’s not a bad result either.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

September 14, 2023

Posted on by Courtney Patterson

QUESTION:
Our Medical Staff Leadership Council intends to ask a physician to agree to a voluntary Performance Improvement Plan (“PIP”) to address behavioral concerns. Do you have any tips for drafting the PIP?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  A PIP is much more likely to be successful if the letter to the physician describing the PIP is carefully drafted and addresses certain issues.  Here are a few thoughts:

  1. Details matter.  The Leadership Council should identify exactly what it wants the physician to do and then include those specific expectations in the PIP.  For example, it’s not enough to say “complete additional EMR training.”  The PIP should identify what type of EMR training, how many hours, the deadline for completion, and how completion will be documented.  The key point is that the requirements should be clear so everyone knows what’s expected.
  1. Identify appropriate PIP elements to address the behavioral concern. Different types of concerns benefit from different types of training.  For example, a physician who has difficulty interacting with patients may benefit from different training than a physician who is abrasive to staff.  Fortunately, the number of training options has increased significantly in recent years, so it’s generally possible to find a program that fits your specific needs.  Here’s a link to a 45-page document from the Federation of State Medical Boards that describes various training options:  https://www.fsmb.org/siteassets/spex/pdfs/remedprog.pdf.  If your hospital is a member of a health system, you could also touch base with other hospitals and ask for their experience with different training options.
  1. Identify a process for reviewing and addressing subsequent instances of inappropriate behavior, especially if there is a pattern of concerns with the physician. The PIP could identify the fact-finding that will occur (which will always include obtaining the physician’s input about any future allegations) and then describe the options the Leadership Council has for dealing with violations of the PIP.  You want to give the Leadership Council flexibility to deal with less significant violations of the PIP; for example, through a collegial discussion.  But if a “Formal Violation” of the PIP occurs, you could outline the progressive steps that will be used for the first, second, and third Formal Violations (for example, final letter of warning, three days of off-site training at the physician’s expense, 360 degree review, agreement to not exercise privileges for 10 days, referral to the Medical Executive Committee for review under the Medical Staff Bylaws, etc.).
  1. Think about the duration of the PIP. Particularly if it describes specific consequences for inappropriate behavior, will those consequences be in effect for six months, 12 months, or indefinitely?  Will the number of “Formal Violations” be re-set to zero after a certain amount of time has passed without a violation?
  1. Use a proper tone, one that is as positive as possible. A PIP for behavior may need to be firm to convey the expectations for behavior going forward.  Still, the PIP should be collegial and explain why appropriate behavior benefits patient care.  The PIP should not sound scolding or punitive.

If you have a quick question about this topic, feel free to e-mail Phil Zarone at pzarone@hortyspringer.com.  For more information, join us at the Peer Review Clinic in Phoenix from November 16-18, 2023.

September 7, 2023

Posted on by Courtney Patterson

QUESTION:
When should we request input from physicians when one of their cases is identified for review through our peer review process?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Some physician leaders want to obtain input as soon as a case is identified for review, before the case is sent to the initial committee in the review process (referred to as the Clinical Specialty Review Committee (“CSRC”) in our model).  Their rationale is that obtaining input right away (before the case is sent to the CSRC) will expedite the CSRC’s review of the case.  The CSRC won’t have to delay reviewing the case until its next meeting while it waits for the physician’s input.  Also, obtaining input right away might emphasize to Medical Staff members that the process is transparent and their input will be considered.

The problem with obtaining a physician’s input immediately is that the CSRC might have decided that the case raises no concerns even without the physician’s input.  In that situation, the physician will have spent time preparing comments that weren’t needed.  This wastes the physician’s time and probably creates unnecessary anxiety.

To get the best of both worlds, the peer review process might include a triage step.  The Chair of the CSRC could review cases and identify those that are more likely to require review by the CSRC.  For those cases, input could be obtained prior to the CSRC meeting.  For other cases, input would only be obtained if the full CSRC believes it’s necessary.

Another option would be to get input from the physician right away if a case is identified due to a reported concern, referral from a sentinel event, referral from risk management, or some other source that makes it more likely that the CSRC will want to review the case.  But input might not be obtained right away for cases identified by a pre-determined trigger (because sometimes triggers can be more sensitive and identify cases that don’t raise a concern).

If you have a quick question about this, e-mail Phil Zarone at pzarone@hortyspringer.com.  Or, join us at the Peer Review Clinic in Phoenix, AZ from November 16-18, 2023.