Question Of The Week

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.

August 31, 2023

Posted on by Courtney Patterson

QUESTION:
Can a physician assistant or nurse practitioner sign off on an EMTALA transfer certification?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The EMTALA regulations at 42 CFR §489.24(e)(1)(ii) allow a “qualified medical person” such as an N.P. or P.A. to sign the transfer certification if a physician is not physically present in the emergency department at the time an individual is transferred.  The regulation reads as follows:

(B)       A physician (within the meaning of Section 1861(r)(1) of the Act) has signed a certification that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual or, in the case of a woman in labor, to the woman or the unborn child, from being transferred.  The certification must contain a summary of the risks and benefits upon which it is based; or

(C)       If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (e)(1)(ii)(B) of this section after a physician (as defined in Section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification.  The certification must contain a summary of the risks and benefits upon which it is based.

Therefore, while an N.P. or P.A. can sign an EMTALA transfer certification if they have been categorically designated as a “qualified medical person” in the medical staff bylaws, rules and regulations, a physician needs to countersign it.

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

August 24, 2023

Posted on by Courtney Patterson

QUESTION:
A physician on our Medical Staff has made numerous entries into the EMR critiquing hospital staff.  We have approached the physician several times to inform her that a patient’s medical record is not an appropriate forum for these comments, but she claims that as the attending physician she has the right to put whatever she wants to in the records, and continues to do so.  What can we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Regulatory and accreditation requirements make it clear only objective clinical information relative to an individual patient’s medical condition should be documented in the medical record.  Entering comments in a patient’s medical record that are critical of other individuals – or the hospital itself – is inappropriate and does not advance the care of a patient.  These types of extraneous comments can also create legal risks to the hospital and to all individuals involved in the care of the patient.

A physician who has a complaint or concern regarding the care provided by another member of the health care team should be advised that the medical record is not the proper forum for reporting such issues.  Instead, they should be directed to register those concerns through the appropriate administrative reporting channels.  Most times, providing this education and counseling to the physician is sufficient to resolve the concerns and change their behavior.  If not, the physician should be advised that failure to follow hospital and medical staff policy regarding appropriate medical record entries will be referred for review under the Medical Staff’s Professionalism Policy or Code of Conduct.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

August 17, 2023

Posted on by Courtney Patterson

QUESTION:
I was recently appointed as chair of a medical staff committee and am very happy, but I just realized that instead of merely attending meetings, I’ll have to run them, so I’m also extremely nervous.  Help!!!

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
An efficient meeting is the key to making it an effective meeting, and running a meeting is hard work.  Here are some tips:

Tip #1.  Start on time.  This is one of the most important tips.  If a meeting isn’t started on time, chances are it won’t end on time, and that has consequences which we’ll discuss below.  If a meeting always starts on time, the attendees will more than likely be there on time, since no one likes to walk into a meeting late, and being late disrupts the meeting.

Tip #2.  Limit the conversation.  What “limit the conversation” means is that if a couple of attendees in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?” Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion.  This can be hard to do, but it is a skill that needs to be developed.  Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #3.  Take an issue off-line.  There are times when a meeting is getting bogged down because no one has the information needed to make a decision.  For example, is the bylaws revision being discussed a Joint Commission Standard? A best practice? If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue.

Another reason to take an issue off the agenda is when there are so many conflicting points of view that the issue won’t be able to be resolved at the meeting.  The chair knows that no matter how much more discussion there is, the issue won’t be resolved.  So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #4.  End on time.  This is the most important tip.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, others will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make – focus is lost.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  Also, not ending on time affects meeting attendance.  If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

Sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. – that happens.  But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting.  The exception is if the issue is of critical importance, but that will be few and far between.

If you have a quick question about this, e-mail ncalabrese@hortypringer.com.

August 10, 2023

Posted on by Courtney Patterson

QUESTION:
One of our medical staff members asked if, under the Health Insurance Portability and Accountability Act (“HIPAA”), he can inform a patient he is currently treating about the cancer history of a former, deceased patient who was a family member of the current patient.  The physician believes that this information will assist the patient in making choices about the direction of her treatment. Can he do that?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
The HIPAA Privacy Rule protects “individually identifiable health information,” which is defined to include a patient’s past physical health condition.  Thus, the deceased patient’s cancer history meets this definition.  However, since the patient is deceased, is the information still protected under the HIPAA Privacy Rule?  The answer to this question is “yes.”  The HIPAA Privacy Rule protects individually identifiable health information of deceased patients for 50 years following the date of the death of the individual.  Assuming the patient hasn’t been dead for 50 years, the patient’s individually identifiable health information is subject to the protections of the HIPAA Privacy Rule.

It is certainly important that a patient understand their family history, including risks for certain diseases and disorders so that they can proactively address those risks.  Here, the treating physician’s hands aren’t completely tied when it comes to counseling the patient on such matters.  He has a few options.  The physician can rely on an exception to the HIPAA Privacy Rule, which permits the disclosure of protected health information for treatment activities.  According to guidance issued by the United States Department of Health and Human Services, the “treatment” exception “allow[s] use and disclosure of protected health information about one individual for the treatment of another individual.”  If the physician is concerned that counseling on a family member’s cancer history does not definitively meet the definition of “treatment” under HIPAA, he has other options.  First, and most obviously, the physician can ask the patient if she is aware of any family history of cancer.  If not, the physician can obtain a written HIPAA authorization from a personal representative (e.g., the deceased patient’s executor or administrator) to disclose the information.  If the physician is unable to obtain a written authorization for whatever reason (such as an inability to locate the personal representative) or believes this is too burdensome, the physician can still make treatment recommendations without disclosing health information protected under HIPAA.  For example, the physician may recommend more frequent cancer screenings based on the family history to which he is privy.

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

August 3, 2023

Posted on by Courtney Patterson

QUESTION:
One of our current fellows applied for appointment and clinical privileges at our facility, is this allowed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Fellows are physicians that have already successfully completed a residency training program and are choosing to further specialize their medical training through a fellowship. By virtue of this, if a fellow were not pursuing this extra training, they would likely be an independently practicing physician. Because of this, fellows are typically eligible to apply for appointment and clinical privileges under the Medical Staff Bylaws and Credentials Policy.

However, there are a couple additional items to consider before granting them appointment and privileges.  The first is, why are they applying for privileges? For an accredited fellowship program, fellows do not need to obtain independent appointment and clinical privileges at a facility to participate in the program. On the other hand, if a fellow is seeking to moonlight, then they will need to be granted privileges outside of the fellowship program for which they are qualified based on the residency program they completed.

The next big question is, what privileges are they applying for, and should you grant them?  Fellows still need to demonstrate the minimum competence and skill for those privileges for which they apply.  They are under the same expectations you would have of any other provider.  So, while they are probably eligible to be privileged for procedures and skills they learned during residency, it wouldn’t make sense to grant them privileges for something they are actively learning in their fellowship.

From there, additional considerations may come up depending on your Medical Staff Bylaws and other policies. For instance, will you have to waive any threshold eligibility criteria?  What Medical Staff category will they be eligible for?  Will you have to waive any criteria of that category?

For more information on this topic, I suggest checking out our recent Grand Rounds Audio Conference on Moonlighting Residents and Fellows!

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

July 27, 2023

Posted on by Courtney Patterson

QUESTION:
We have a patient who is extremely disruptive and abusive to staff. We have spoken to the patient and given them several opportunities to curb this behavior. However, it appears to be getting worse. Can we terminate our relationship with this patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Dealing with disgruntled patients can be a common occurrence, but patients who exhibit abusive behavior to practitioners and staff can be extremely disruptive to daily operations and patient care. While it is unfortunate that it has to come to this, you have the option of ending your relationship with that patient. How you go about doing so is key.

Providers who wish to terminate a patient must avoid doing so in a manner that would constitute “patient abandonment.” This can occur when the physician withdraws services after establishing a physician-patient relationship and fails to provide the patient with notice of the physician’s exit. State medical boards often hold physicians accountable and impose disciplinary action when this occurs.

Therefore, when considering terminating a patient relationship, it’s imperative that you provide the patient with written notice that explains, in brief, the reasons why the relationship is being terminated and the importance of continuing treatment.

In order to maintain continuity of care, you should give the patient a sufficient opportunity to make other arrangements and offer assistance/recommendations to help the patient identify alternative services. In the interim, it is important that you continue to provide treatment and access to services for a reasonable time prior to the termination of the relationship. We generally recommend 30 days; however, this may be longer or shorter considering the access to and availability of alternative services.

Keep in mind, however, that when a physician’s relationship with the patient terminates, the hospital’s obligations under EMTALA do not. Should the patient present to the hospital’s emergency department with an emergency medical condition, the hospital will still be required to provide a medical screening exam and stabilizing treatment for the patient regardless of whether you terminated your relationship with them.

We recommend checking your state medical boards for template letters that you can use when terminating a patient relationship. And, as always, if this unfortunate circumstance arises, consider consulting with an attorney to discuss how to approach ending your relationship with the patient to avoid running into “patient abandonment” issues.

If you have a question regarding terminating a patient relationship or questions you’d like to see featured in a future Health Law Express, email Mary Paterni at mpaterni@hortyspringer.com.

July 20, 2023

Posted on by Courtney Patterson

QUESTION:
I see that you have a new podcast that somehow the Stark and Anti-Kickback Statute (“AKS”) have been amended to address how a hospital can assist a physician suffering from burnout.  What do Stark and the AKS have to do with how a hospital and its medical staff can assist a physician in distress, and how did that happen?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Thank you for the opportunity to plug our new podcast entitled “Don’t Get Burnout from Your Wellness Program.”  While the podcast will provide more detail, here are the highlights.

The Consolidated Appropriations Act of 2023, which raised the debt limit, added a number of other provisions including a new Stark exception and a new Anti-kickback safe harbor on Physician Wellness Programs.  These new sections of the Social Security Act will allow hospitals and the other named types of facilities to incur the expenses required to send physicians on their medical staff to a Physician Wellness Program as defined in the statute under the conditions stated in the new exception/safe harbor.

We should also mention that a separate section of the Consolidated Appropriations Act directed the OIG to consider a new safe harbor, but don’t be thrown off by the title of this section which references something called “contingency management interventions.”  If you look beyond the title of this Section to its text, you will find that Congress is directing the OIG to consider adopting a new safe harbor on “contingency management compensation.”  There is no guarantee that the OIG will do anything other than consider a new safe harbor.  However, if adopted and if reasonable (which is a BIG IF) this new safe harbor may be helpful in a number of settings.

But I digress, with regard to the Physician Wellness Stark Exception/AKS safe harbor, it is helpful to see Congressional recognition that physicians are suffering from burnout and other behavioral health problems and that a hospital can provide the assistance described in the exception/safe harbor without violating the Stark law or the AKS.  However, as discussed in the podcast, that assistance must be provided in the manner described in the statute, which is not onerous, but does require a certain amount of process, such as having a written policy adopted in advance by the board.

On the other hand – who would have thought that a hospital providing this type of assistance to a member of its medical staff in need of Wellness services raises a concern under Stark or the AKS???

The fact that Congress felt the need to adopt this exception in order for a hospital to provide this type of assistance could be used to raise a question as to whether it violates Stark or the AKS if a hospital pays to send a member of the medical staff away for training or for a medical condition that is not expressly covered by the exception.  Should that occur, it will not be difficult to find another exception that applies – nevertheless don’t be surprised if medical staff practices that were taken for granted in the past are now questioned.

Also keep in mind that there is a broad exception under both laws for an employment relationship.  While the new Stark exception/AKS Safe Harbor could be used for an employed physician, it is not needed in that situation – you could rely on the employment exception to Stark and the AKS bone fide employment statutory exception and safe harbor.

For more insights on what is, and what is not, covered by this new law, check out the podcast referenced below.  If you still have any questions about this issue, please feel free to e-mail me or Dan at Hcasale@hortyspringer.com or Dmulholland@hortyspringer.com.

If you want more detail on compliance with the False Claims Act, AKS, the Stark law, the intersection of medical staff and employment law, and much more, consider joining Dan Mulholland, Henry Casale and our newest faculty member – Hala Mouzaffar – in Phoenix November 16-18, 2023, for our next seminar. 

July 13, 2023

Posted on by Courtney Patterson

QUESTION:
Our Leadership Council is developing a Performance Improvement Plan (“PIP”) for a practitioner at our hospital who does not play well with others.  One member of our leadership team suggested that we send the practitioner out for a mental health evaluation before finalizing the PIP.  Is this advisable?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
As a rule of thumb, we recommend that you stay away from requesting mental health evaluations from practitioners who have failed to meet your Medical Staff’s standards regarding professionalism.  In our experience, such an evaluation only tends to cloud the Leadership Council’s thinking on how best to address the inappropriate behavior that has been identified.  Additionally, a request for an evaluation might give the practitioner a basis for claiming that he or she was discriminated against under the ADA if disciplinary action is ultimately taken.  That is why we believe it is better to focus on the behavior at issue rather than spending too much time and energy trying to identify its cause.

Of course, impairment and “burnout” are real concerns.  So, if there is compelling evidence that suggests that the practitioner is dealing with a legitimate health issue, then an evaluation may be appropriate.  But that should be managed through your process on practitioner impairment, not your Professionalism Policy or Code of Conduct.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.