Question:

An adult patient recently requested a copy of her birth records. She was adopted as an infant and her birth records, while still maintained by the hospital, include information about her birth mother.  Should we release the records?  If so, should we redact information about the birth mother?

Answer:

The federal Health Insurance Portability and Accountability Act (“HIPAA”) privacy regulations require covered entities (including hospitals) to provide patients with access to their protected health information in a designated record set.  45 C.F.R. §164.524(a).  This includes a copy of any medical record that is used to record and make decisions about the patient’s care.  In the case of an infant, the birth record would be included.

There are exceptions to patients’ right of access under HIPAA.  One of those exceptions applies when the information to be disclosed could harm the person mentioned in the record. Specifically, the HIPAA regulations provide:

Reviewable grounds for denial.  A covered entity may deny an individual access, provided that the individual is given a right to have such denials reviewed, as required by paragraph (a)(4) of this section, in the following circumstances:

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(ii) The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person;

45 C.F.R. §164.524(a)(3).

In the case of parents who relinquish custody of an infant for adoption purposes, it is well within a licensed health care professional’s (e.g., social workers, CMOs, nursing supervisors) discretion to determine that access by the now-grown infant is reasonably likely to cause harm (e.g., mental anguish, anxiety) to the relinquishing parents.  In reaching that conclusion, the health care professional could point to the state’s adoption procedures.  Most states have detailed statutes and regulations that outline the procedures that courts and adoption agencies must follow when managing adoption records.  The obvious intent of those laws is to protect adopted children and relinquishing parents from discovering each other’s identities without mutual consent.

Note that if access to the birth records is denied by the hospital pursuant to the HIPAA regulations’ exception at 45 C.F.R. §164.524(a)(3), the hospital must:

• Give the adopted individual a copy of any information in the record that is not likely to harm the birth parents (probably, a copy of the entire record with all identifying information about the parents removed).  45 C.F.R. 164.524(d)(1).
• Provide a timely, written denial to the individual, including the basis for the denial, a statement of the individual’s right to request review, an explanation of how the individual can exercise that right, and a description of how the individual can complain to the hospital (including the name or title and telephone number of the contact person) or to the Secretary of the Department of Health and Human Services. 45 C.F.R. 164.524(d)(2).
• If the patient appeals the denial, the hospital must appoint a licensed health care professional who was not involved in the original decision to deny access to review the request for access.  The hospital must then promptly inform the patient of the reviewing professional’s decision and take other action as required to carry out the reviewing professional’s decision.  45 C.F.R. 164.524(d)(4).

Finally, though it is not legally required, if you intend to deny access to a birth record, consider referring the requestor to the local courts or child welfare agency to obtain more information about lawfully obtaining the identity of the birth parents.  Many states have amended their adoption procedures in recent years to provide a process for adoptees or birth parents to seek each other’s consent to share their identities and contact information.

Question:

Questions have arisen regarding the quality of care provided by Dr. R. Kiner at the hospital.  The Chairs of our Credentials and Peer Review Committees, Dr. H. Wagner and Dr. P. Traynor, both say that a review, and not an investigation, should be performed concerning Dr. Kiner’s hospital practice.  Why is there a distinction?

Answer:

Part of the answer is that an investigation is usually a much more formal process and is to be conducted in accordance with the investigation process described in the hospital’s Credentials Policy or Medical Staff Bylaws.  A review is less formal and may be conducted pursuant to a designated process, such as the peer review process, or a more ad hoc process.  Part of the answer is also legal.  A physician who relinquishes his or her medical staff appointment and/or clinical privileges either during or in lieu of an investigation is to be reported to the Data Bank.  That is not the case when a review is involved.

Question:

Thanks for the answer in last week’s Health Law Express that when it comes to minutes, “don’t” record the details of any discussion, since less detail is better, except when it comes to making an adverse recommendation regarding a physician.  Do have any other “don’ts” that you can share with us?

Answer:

Yes, another “don’t” is don’t record personal remarks unrelated to the committee’s business.  For example, if Dr. Smith’s competence is an issue, don’t record “Dr. Jones thinks that Dr. Smith is incompetent, mean to children, and kicks dogs.  But, Dr. Jones said that Smith must have a lot on his mind since his son was just arrested for heroin possession.”  The only issue before the committee that is relevant is Dr. Smith’s competence.  So record “The committee recommended that Dr. Smith’s clinical privileges for laparascopic cholecystectomies be revoked because of competence concerns.”

To learn more about medical staff documentation issues, please join Nick Calabrese and Ian Donaldson, attorneys at HortySpringer, for an audio conference entitled “Documentation: Committee Minutes and Medical Staff Files” on October 1.

Question: We often struggle with how much detail to include in our minutes, especially when we are dealing with a sensitive physician issue.  Is “the less detail the better” rule what we should follow?

Answer: Yes, the rule we generally recommend to our clients is that, when it comes to minutes, less detail is better.  However, like every good rule, there are important exceptions.  For example, in a situation where your committee will be making an adverse recommendation regarding a physician, it is better to include more detail in your meeting minutes, because including more detail in such situations can only help you later on.  Showing that you have identified a conflict of interest and that it has been appropriately managed (e.g., the conflicted member has recused himself or herself) is another instance when it can be helpful to have good documentation that the committee “did the right thing.”  Also, if you are granting an applicant a waiver, it is important to show why there were exceptional circumstances justifying the waiver for that applicant (especially when an applicant who is not so exceptional comes along later seeking a waiver).

Of course, “more detail” does not mean verbatim transcripts of discussions, who said what to whom, etc. Rather, using your minutes to document objective facts that can be used to create a  record of who, what, when and why at a later date should be the goal.

To learn more about medical staff documentation issues, please join Nick Calabrese and Ian Donaldson, attorneys at Horty Springer, for Documentation: Committee Minutes and Medical Staff Files on October 1.

Discussion will include:

• Committee Minutes – how much is too little?  Too much?  Are they your best friend or your worst enemy?
• Credentialing Files – what goes in? What comes out?
• Who has access to the file?
• Can you share information among “sister” corporations?
• What are the keys to confidentiality in a social media world?

 

Question: Our physician group is a subsidiary of our parent.  We use overlapping board membership.  As a result, we have not been able to integrate our physician employees onto the board of our physician group.  Do you have any ideas?

Answer: Yes, we do.  In our experience, a physician group is very different than a typical health system subsidiary corporation and, as a result, the typical parent-subsidiary board has been of little benefit in integrating physicians into the management of the physician group.

We recommend that physician groups consider instituting a “Physician Governing Board” by developing a charter that describes the manner in which the members of the Physician Governing Board are elected by the physician employees; its responsibilities; and its relationship to the corporate board and how it will provide the employed physicians with meaningful input as to the development, integration and operation of the physician group.

Most importantly, we have found that a Physician Governing Board helps to provide the employed physicians with a sense of “ownership” in the group without affecting the health system’s non-profit status and to provide the employed physicians with a platform to adopt groupwide practice standards, which have often increased physician and patient satisfaction, increased physician and patient retention and increased the economic performance of the group.

Do you want to learn more about the physician governing board and much much more?

Join Henry Casale, Rachel Remaley and Charlie Chulack for The Institute on Employed Physicians and Their Impact on the Medical Staff.

October 3-5, 2013
Chicago, Illinois

January 23-25, 2014
Naples, Florida

Question: We are revising our Bylaws and, to comply with federal regulations and accreditation standards, are moving the requirements for histories and physicals from the Medical Staff Rules and Regulations to the Bylaws.  In doing so, a question came up from the Medical Staff regarding what exactly is required for inclusion in a “complete medical history and physical examination”?

Answer: While there is no definitive instruction on what a complete history and physical examination must include, we recommend as a best practice including the following:  patient identification, chief complaint, history of present illness, review of systems, personal medical history and family medical history, social history, physical examination, data review, assessments, plan of treatment, and any signs of abuse, neglect, or addiction.  This allows for a comprehensive, well?documented history and physical, which (1) assists in obtaining an accurate diagnosis; (2) demonstrates that the history and physical was thorough (which will insulate against malpractice claims); and (3) informs the plan of care and any follow-up treatment.

The Joint Commission only requires that the Medical Staff specify the minimal content of histories and physicals.  Thus, the Joint Commission leaves the minimal content of histories and physicals to the discretion of the Medical Staff.  However, the Joint Commission’s Glossary provides some insight on expectations for histories and physicals.  In that Glossary, “history and physical” is defined as follows:

Information gathered about an individual using a holistic approach for the purpose of establishing a diagnosis and developing a plan for care, treatment, and services to address physical health issues. The history may include information about previous illnesses, previous medical or surgical interventions and response to treatment, family health history, and social, cultural, economic, and lifestyle issues that may affect the individual’s health and well-being. The physical involves the physical examination of the individual’s body by the following means: inspection, palpation, percussion, and auscultation. When used in concert with behavioral health care services, the history and physical may be used to rule out physical causes for behavioral health conditions or to assess the impact of a medical diagnosis or treatment on a behavioral health condition.

Hospitals may also want to check with insurers to determine if reimbursement is dependent on any specific requirements for histories and physicals.  Medicare billing rules on this particular topic are silent.  Some commercial insurers, on the other hand, have stringent requirements for history and physical documentation.  For example, some Blue Cross/Blue Shield products require history and physical documentation to include pertinent information such as age, height, vital signs, past medical and behavioral history, family history, and preventive health maintenance and risk screening.

Question: Our peer review committee is struggling to keep up with its workload.  Committee members want to do a good job of communicating, so the committee is constantly drafting letters to Medical Staff members regarding the status of case reviews, requesting input, or providing helpful information.  Is there anything we can do to be more efficient?

Answer: Yes!  Valuable physician time can be conserved by having the Quality Department or Medical Staff Office be empowered to generate “informational letters.”  Physicians on the peer review committee could first identify situations for which physician review is not required.  Examples include the failure to complete medical records in a timely manner, clear violations of Medical Staff rules, or the failure to follow protocols that have been approved by the Medical Staff.  The key point is that these situations must be readily identifiable through objective criteria.  When these objective criteria exist, the Quality Department or Medical Staff Office could generate an informational letter for signature by an appropriate Medical Staff leader.  Physicians who receive an informational letter would not be required to take further action or respond to it, though they would be free to prepare a response if they wanted.  If the number of informational letters sent to a practitioner suggests that a pattern has developed, the matter would be reviewed more closely through the peer review process.

Also, hospitals should have a complete set of pre-drafted, template letters for various situations the peer review committee may face.  For example, there should be template letters for requesting input from a physician, inviting a physician to a meeting, seeking an external review, and so on.  Having these letters allows committee members to take advantage of the experience and wisdom of those who served before them.

If you’re interested in other peer review best practices, please join us at The Peer Review Clinic.

Question: We have a new maternal-fetal medicine specialist on our staff at our hospital. We have never had this type of specialist before on staff. How do we go about privileging?

Answer: When hospitals receive applications from sub-specialists, such as a maternal-fetal medicine specialist or any number of other specialized providers, issues arise because the hospital has never had that type of specialist on its medical staff.  For example, the specialist may request clinical privileges for some procedures that have never been performed at the hospital.  The specialist should be told that those procedures are not currently performed at the hospital, but that within a reasonable amount of time, the request will be considered and the specialist will be informed of whether the hospital intends to allow the procedures to be performed.  Information should be sought from a number of sources, including training programs and other hospitals. If the Board decides to allow the procedures to be performed, criteria for clinical privileges should be developed.  Also, the hospital may wish to consider bringing in an outside specialist to observe and evaluate the new specialist for the first few cases.  The outside specialist should be granted temporary privileges for this purpose.

Question: We recently worked with a hospital that was dealing with a real threat of a potential shooter coming and so “locked down” its campus.  In the past year, we have worked with hospitals regarding the use of tasers in their facility, particularly the ED; the use of metal detectors and wand screenings of visitors to the hospital’s behavioral health unit (the patients are already searched); disruptive inpatients who may need to be expelled by the hospital for staff safety; and prohibiting certain individuals from coming to the hospital for fear of potential abuse, physical and/or verbal, of hospital staff and employees.  What the heck is going on?

Answer: Security and safety concerns are getting increasing attention from hospitals.  Unfortunately, hospital campuses and buildings can be scenes of violence, and it is prudent to be prepared.  Hospital buildings are necessarily open to the public 24 hours a day, seven days a week, and often have multiple entrances to the main and other buildings.  How can patients, visitors and staff best be protected?

Working with counsel, a hospital management team should assess the risks, review available data and develop (or revisit) policies.  You may find that it would be good to provide more training to security and staff, in general, as to how to deal with violent situations.  Work through communications and operations plans for a geographically limited incident (e.g., a violent individual in the ED) to one that affects the entire campus (e.g., a potential shooter).  And work with the police in advance as to how and when the hospital should get them involved.

This is not going to get any better.  Let’s be prepared with the right policies, staff, training and communication protocols.

 

 

Question: Should our Medical Staff have a policy that governs the use of Medical Staff funds?

Answer: Many Medical Staffs have policies that outline guidelines for permissible expenditures of Medical Staff funds.  All expenditures must comply with the Stark rules, the Medicare/Medicaid anti-kickback law, and (if applicable) IRS tax exemption rules.  Some examples of expenditures that we have seen in such policies include sending flowers to a funeral or contributions towards a preferred charity in cases of death within a Staff member’s family, plant/fruit baskets to Staff members who are hospitalized and similar reasonable activities when consistent with the hospital’s tax-exempt status, Stark and anti-kickback laws.  There are other appropriate uses of funds Medical Staff leaders can address in such policies.  Having such a policy would help protect everyone in the event of a whistleblower claim or government investigation.

To learn more about how to appropriately manage Medical Staff funds, join HortySpringer attorneys Henry Casale and Alan Steinberg for an audio conference on September 3, 2013, entitled “Medical Staff Funds – Dues and Don’ts.”