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March 19, 2026

Posted on by Courtney Patterson

QUESTION:
Your Question of the Week a few weeks ago provided a bunch of good tips for handling external reviews (that we had happily followed!), but it didn’t address one big issue our peer review committee is wrestling with right now.  Specifically, our committee arranged for an external review on a highly technical procedure that only one member of our medical staff performs that had resulted in a number of patient complications.  The issue that we are struggling with right now – with a difference of opinion among the committee members – is whether we need to show that report to the physician.  Some members of the committee think we will waive the peer review privilege if we do, while others disagree and say we have to show her to be fair.  Do we?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of waiving the peer review privilege, every state is different and you certainly should consult your legal counsel to make sure you are operating within the terms of what your state might require; however, it would be a rare/unusual statutory provision or court interpretation that would result in the peer review privilege being waived by a peer review committee sharing an external review with the physician whose care was being reviewed – when it is being done in order to allow that individual to provide additional input into the review.  That kind of interaction is at the heart of the peer review process itself.

Presuming waiver of privilege is not an issue, then yes, in order to be fair to the physician, we do strongly recommend that individuals whose care is the subject of an external review be given the opportunity to review those reports and to provide a response.  Ideally, this means that the report is provided to the individual in advance and the physician is given a period of time in which to review and provide a written response to the committee versus, for example, merely allowing the physician to review the report for the first time at the peer review committee meeting.  The goal of peer review is for the committee to have full and complete information before it makes a determination, and an informed and thoughtful response from the physician at issue is vital.

Sometimes, the concern that we hear raised is that the physician may contact the external reviewer, trying to lobby them to change their opinion, or even harass or threaten that individual.  If that is a concern, it can be addressed in advance by informing the physician that attempts to contact the external reviewer are inappropriate and would be assessed under the medical staff’s professionalism or code of conduct policy.  And in extreme cases, where the committee is truly concerned about the potential of such conduct, an alternative may be to provide a summary of the reviewer’s credentials and the body of the report only, deleting the external reviewer’s name and contact information – explaining why the committee took that step in the correspondence to the physician.

If you have a quick question about this, e-mail LeeAnne Mitchell at lmitchell@hortyspringer.com.

March 12, 2026

Posted on by Courtney Patterson

QUESTION:
This week’s question is taken from those submitted at the January 15-16, 2026 Complete Course for Medical Staff Leaders, held in Amelia Island.

Sometimes it’s very tempting to call a colleague you may know at another hospital to clarify the details of an applicant.  While I believe this is done routinely, is it legally permissible if the applicant has not declared this person a reference?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
As a general rule, it is perfectly acceptable (and appropriate) to contact anyone who may have any information that is relevant to an applicant’s qualifications.

This is America – so of course this has been litigated.  Check out what the United States District Court for the District of New Jersey said in this 2014 case (where a physician alleged wrongdoing by a Credentials Committee chair, who contacted individuals not listed by the applicant on her application):

“As to [the Credentials Chair’s] request for information from non‑references…affirmative contact with these individuals, that is, without prior clearance for such action from Dr. Pal, reflects a diligent and comprehensive investigation in connection with her application for privileges…”

Pal v. Jersey City Medical Center (D.N.J. Oct. 24, 2014)

So, who can you contact?  Anyone who may have information about the applicant’s clinical skill, experience, training, professional conduct, health status, etc.  You likely have a statement in your Medical Staff Bylaws and on your Medical Staff application forms that states something to this effect (virtually all organizations do).

The “usual suspects” for affiliation verifications/references include other health care facilities where the applicant is employed or has been employed, or has held medical staff membership or clinical privileges.  Department chairs from current and previous organizations, as well as residency program directors (if recently out of training), and current and past employers are also often contacted.

But, what about a nurse supervisor at a facility that has reported interpersonal conduct issues by the practitioner?  What about the applicant’s arresting or probation officer?  An ex-wife who filed a restraining order?  Yes to all of these!  Anyone who may have information relevant to the qualifications of the practitioner to be a medical staff member (including maintaining orderly operations of the hospital) or to exercise privileges (including anyone who may have information about health status, reliability, clinical performance, education, training) can be contacted and asked for information.

To get back to your question – you specifically asked whether you can contact a colleague you know.  Of course (as noted above), the answer is yes (we really do mean anyone who may have information about the applicant, including anyone who may be able to share real life observations or other information).  But, here’s the kick – whenever you request and/or obtain information about an applicant, that should be documented in the credentialing file.  Therefore, before you call in a personal favor to a friend, realize that your contact with that individual needs to be documented in the file and anything they tell you will not be “off the record.”

So, if you plan to contact a personal friend, acquaintance, or colleague to request information, remember to treat the contact and request with the same formality that you would treat other requests.  If you are asking for important information, trying to clear up concerning rumors or verify whether the applicant has made a misrepresentation, etc., it may be best to make the request for information in writing (and to supply a copy of any authorization/release that your applicant has signed).

Never promise that information revealed to you will be kept secret (this is a promise you cannot keep!).

And, if your friend/colleague holds a leadership position at another facility (e.g., they are the chair of credentials or department chair at the facility where the applicant recently held privileges), remember that they have legal obligations of confidentiality with respect to their proceedings as medical staff leaders and when they act in those roles they are agents of the facility.  Accordingly, it may be best in those cases to direct your request to the facility itself, rather than the individual (so that the individual is not put in a difficult position).

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

March 5, 2026

Posted on by Courtney Patterson

QUESTION:
There is a new GI on our staff who had a concerning number of complications during his initial focused professional practice evaluation.  To make sure our process was completely objective, we decided to get an external reviewer to evaluate some of the cases with complications.  Instead of sending all of the cases of concern, we sent a sample which reflected the various kinds of complications the GI had during his first eight months of practice.  We thought this would allow us to expedite the review and save a little money at the same time.  Is this ok?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Obviously, you’ll want to review and follow your peer review policy.  In our experience, most peer review policies would not be detailed enough to address your question and thus you should have some flexibility to decide which cases you want to send for external review.  You are correct that the cost of the external review will increase with the number of cases and the length of time it takes to get the report back may also increase with the number of cases.  Those are relevant practical considerations.  At the same time, you may want to send enough cases so the external reviewer is able not only to comment on the individual case but also whether there is a pattern or trend of care that might be concerning.

You can also stage the review, starting with a smaller sample size and then adding additional cases if you want the reviewer to address the broader question of whether there may be a pattern of concerning care.  It can often be helpful to provide the reviewer with information about the physician’s overall case volume and complication rate.  You should also not hesitate to confer with the external reviewer after they have provided you with their report.  These meetings can often be very instructive, especially if concerns have been confirmed in the report, to help you frame and implement remedial actions.

The bottom line is you want to make sure you follow your peer review policy.  At the same time, you probably have a lot of flexibility and discretion in deciding how many and what kind of cases to send to the external reviewer.  If you have a lot of cases of concern, you may want to stage the review to make sure you are getting the most out of the review.

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

February 19, 2026

Posted on by jwilbert

QUESTION:
The physician group practice that is affiliated with our health system wants to develop a peer review process for outpatient practitioners.  Does this make sense and, if so, what are some considerations in setting up such a process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:

Even though an answer to this question involves an evaluation of the unique circumstances of the group practice, there has been a significant increase in interest in this topic.  In our experience, the motivation for wanting an outpatient peer review process makes sense.  The groups with which we have worked are interested in enhanced mechanisms and processes to better evaluate clinical care and address conduct concerns for ambulatory care practitioners, rather than solely relying on the human resources/employment process.  They are also interested in taking advantage of any available peer review protections under state law that may only apply if there is a peer review structure in place.

An outpatient peer review process can be modeled on the process for your hospital’s medical staff.  However, the structure is usually scaled down.  For example, Clinical Specialty Review Committees, if being used for specialty reviews and expertise as a part of the Medical Staff peer review process, are generally not needed for outpatient peer review (but, as noted below, you want to reference your state’s peer review statute to confirm that any chosen structure maximizes protections under the law).  Instead, you can rely on Clinical Specialty Reviewers or assign a member from the outpatient peer review committee who has the specialty expertise or knowledge to perform the case review.

As noted above, an additional consideration is your state’s peer review statute.  If the statute contemplates peer review protections for outpatient peer review, you want to make sure that your process is set up to take advantage of those protections.  By way of example, Colorado law discusses “professional review committees” of “authorized entities” (e.g., hospitals and physician groups).  These professional review committees may share information with one another – for example, from hospital to group and group to hospital.  The committees and their individual members are entitled to certain immunities from liability, and the records of professional review committees are confidential and privileged.  However, for these protections to apply under Colorado law, the authorized entity and professional review committee must have statutorily required policies and procedures in place describing, among other things, hearing and appeal rights for practitioners.  The professional review committee also has to register with the state.  Thus, any peer review policy for an outpatient professional review committee will need to have these requirements addressed to be eligible for the protections in Colorado.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.  Also, tune in to The Brave New World of Ambulatory Peer Review, a podcast from Horty, Springer & Mattern attorneys Ian Donaldson and Charlie Chulack will be available on Wednesday, February 25, 2026 for more on this topic.

 

February 5, 2026

Posted on by Courtney Patterson

QUESTION:
Our hospital recently received a request from a former Medical Staff member for a complete copy of her credentials and peer review files.  Are we required to provide the copies as requested?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While you always need to check your state law, in most states a hospital would not be required to provide a former Medical Staff member (or even a current member) with a copy of her credentials and peer review files.  (This is different than an HR file, as most states do require that employees be granted access to personnel files.)

To avoid any confusion when these types of requests are made, we recommend hospitals adopt a policy that governs access to credentialing and peer review files.  For existing members, the policy might describe the rules for accessing “routine” and “sensitive” documents, with sensitive documents receiving special protection (for example, names of those who raised a concern will be redacted).  For former members, the policy could state simply that copies will not be provided (assuming that is consistent with state law), but that the hospital will respond to credentialing requests from other hospitals so long as the former member has signed the appropriate authorization and release.

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

January 29, 2026

Posted on by Courtney Patterson

QUESTION:
One of the new members of our Peer Review Committee is adamant that we should not be using the term “investigation” when referring to the review of a provider’s care. What is the big deal with using that term?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The term “investigation” is a loaded term in the Medical Staff world. Because of that, it is very important that we are careful in how we throw that term around, and that we only use it when it is truly appropriate.

The term “investigation” should be reserved for only when the Medical Executive Committee has made the determination to employ the formal investigation process laid out in your Medical Staff Bylaws.  The formal investigation process is that very long section in your Bylaws that details appointing an investigating committee, explains how investigations are handled, outlines hearing rights, defines rights to an appeal, and so forth.  Additionally, we want to be specific as to when a formal investigation has begun because it carries legally required notice requirements and potentially reporting requirements.

For that reason, when other Medical Staff committees are engaging in routine review activities – such as taking a closer look at cases referred for peer review or interviewing individuals as part of the peer review process – we should avoid calling those activities an “investigation.”  Using that term outside its formal meaning risks confusing informal review with the official investigation process required by the Bylaws.

Instead, we recommend using other terms – such as review, assessment, evaluation, or fact‑finding – when referring to these non‑formal activities.  While this distinction may seem subtle, it can be crucial if the committee’s actions are ever subject to legal scrutiny.

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

January 22, 2026

Posted on by Courtney Patterson

QUESTION:

We are currently reviewing the application of a physician and have encountered several red flags during credentialing.  Our main concern is that the physician failed to disclose on his application a prior hospital where he practiced and where his privileges were restricted – information we uncovered through a National Practitioner Data Bank query.  Throughout the process, the physician has been largely unresponsive and difficult to work with, and he has explained the omission as an oversight by his office staff. Given the nature of the restriction, however, it seems unlikely this affiliation would be easily forgotten.  How should we proceed if we believe the explanation may not be truthful?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
While some misstatements and omissions on application forms may be benign, others can be serious, and your concerns are well founded.  Because this is the applicant’s first interaction with the Medical Staff, it is important that they make a strong impression.  Beginning that relationship with potentially intentional omissions may signal future issues if the applicant is appointed and granted clinical privileges.

If you do not already have one, consider incorporating into your Medical Staff Bylaws an administrative process that addresses an applicant’s failure to disclose pertinent information on their application.  Specifically, the Bylaws should state that the hospital will stop processing the application upon discovery of a misstatement or omission.  The applicant should then be notified of the issue and given an opportunity to respond, after which the hospital may determine whether to resume processing the application.  We also recommend including corresponding language in the attestation the applicant signs upon completion of the application.

Because this is an administrative issue – not an adverse recommendation – the Bylaws should make clear that a decision to stop processing an application due to a misstatement or omission is not a “denial” and does not give rise to hearing or appeal rights.  In other words, the hospital isn’t rejecting the application based on the physician’s competencies, training, or experience.  The application simply won’t move forward because the applicant failed to fully or accurately disclose information needed to fully vet his application.

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

January 15, 2026

Posted on by Courtney Patterson

QUESTION:
We received a subpoena from an attorney requesting the medical records of a patient.  The attorney represents the plaintiff in the case, and the patient is the defendant.  We are not a party to the litigation and want to comply with the subpoena, but we don’t want to violate the Health Insurance Portability and Accountability Act (“HIPAA”) either.  Help!

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Basically, there are three types of subpoenas – (1) a witness subpoena (requires an individual or entity to appear in court); (2) a deposition subpoena (requires an individual or entity to provide records or appear at a deposition); and (3) a subpoena duces tecum (requires an individual or entity to provide copies of records and/or attend a court hearing). In most cases, when a hospital is not a party to a lawsuit, it will receive a subpoena duces tecum.

Disclosing information under these circumstances is covered under the HIPAA Privacy Rule regulations at 45 CFR § 164.512(e) “Disclosures for judicial and administrative proceedings.”  The regulations require that certain conditions be satisfied before a covered entity, in this case a hospital, may disclose medical records in response to a subpoena duces tecum.

A subpoena duces tecum can be signed by a judge, but is usually signed by an attorney.  If it has been signed by a judge, the hospital can release the medical records as long as it discloses only the Protected Health Information (“PHI”) authorized by the judge.  If it has been signed by an attorney, as in this case, there is a different process.  Basically, if signed by an attorney, the regulations require that a hospital receive “satisfactory assurances” from the attorney that: (1) reasonable efforts have been made to notify the patient of the subpoena and that the patient had no objections to the subpoena, or that any objections to the subpoena by the patient have been resolved; or (2) reasonable efforts have been made by the attorney to secure a qualified protective order (a court order limiting the use, disclosure, and storage of information solely to a specific lawsuit, ensuring its return or destruction after the case ends).  Until the hospital receives either of these “satisfactory assurances,” it is prohibited by federal law from disclosing the medical records.

Our most important piece of advice in this instance?  If you receive a subpoena, please involve legal counsel as early and often as possible.

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

January 8, 2026

Posted on by Courtney Patterson

QUESTION:
I noticed in the Your Government at Work section of this week’s HLE that the financial limits in the Stark Law have been updated for Calendar Year 2026.  What do these limits mean and how do they apply now that we employ so many physicians?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Yes, the limits for Calendar Year 2026 apply and this is a good opportunity to update your compliance program to include the new 2026 limits.  But they may not be as relevant today as they have been in the past.  In order to describe how, and to whom, these limits apply, requires some background information on the Stark Law.

Nonmonetary Compensation – New Limit $535/year
The “nonmonetary compensation” exception to the Stark Law (42 C.F.R. § 411.357(k)) permits a hospital to make gifts to the physicians on the hospital’s medical staff, other than cash or cash equivalents, in an aggregate, annual amount that does not exceed the then applicable annual limit.

When this exception was adopted, this limit was $300.  However, after years of adjustment, the limit for calendar year 2026 is $535.  CMS will continue to update this amount annually and the current annual limit may be found in Your Government at Work section of this week’s HLE.

Even when indexed to inflation, the calendar year maximum amount makes this exception of limited utility.  Furthermore, in order to satisfy this exception, the hospital must track all such  gifts, the gifts must not be determined in any manner that takes into account the volume or value of referrals or business generated by the physician who receives the gift, and the gift may not be solicited by the physician.

There have been two recent changes to this exception:  (1) no more often than once every three years, a physician who has inadvertently received non-monetary compensation of up to 50% in excess of the then applicable limit may repay the excess within the earlier of the same calendar year or 180 days of receipt of the excess, and (2) a hospital or other DHS Entity may provide one medical staff function per year for the entire medical staff without regard to any monetary limit.

Unfortunately, in order to comply with this exception, hospitals and other DHS entities must track the value of all of the gifts provided to each physician during each calendar year.  Also, while the cost of the annual medical staff event is not counted against the then annual limit, any gifts or gratuities provided in connection with that event (including “door prizes”) will be subject to the annual limit.

Medical Staff Incidental Benefits – 2026 limit $46/Benefit
While it is helpful that CMS has recognized that the Stark Regulations should include an exception that recognizes a number of traditional relationships between a hospital and the physicians who are appointed to its medical staff, this exception is relatively narrow and has a number of requirements, including the requirements that the item or services must be:  (i) offered to all staff members practicing in the same specialty without regard to the volume or value of their referrals to the hospital; (ii) provided only during periods when the medical staff members are making rounds or are engaged in other activities that benefit the hospital or its patients; (iii) used by the medical staff member “on the hospital’s campus”; (iv) reasonably related to the delivery of medical services at the hospital; and (v) not intended to induce referrals.

Also, the item must be of low value.  Originally, each item was valued at $25, and is subject to the same inflation adjustment used in the non-monetary compensation exception.  That is how CMS arrived at the $46 per benefit in calendar year 2026.  Future updates can be found at the same area of the CMS website as the update for non‑monetary compensation.

The Regulations also make it clear that internal access pagers, two-way radios and radios used away from campus to access patients and personnel on the hospital’s campus as well as identifying medical staff appointees on the hospital’s website or in hospital advertising, will meet the “on campus” test.  However, facilities that are owned or operated by a hospital will not be considered to be on the hospital’s “campus.”  Also, this exception does not apply to advertising or promotion that is intended to market a particular physician or his or her private practice.

This is the so-called “free lunch exception.”  Therefore, assuming that all of the requirements to the exception are met, a hospital may provide free meals, free parking or any other “on campus” incidental benefit that it normally provides to all members of its medical staff practicing in the same specialty without fear that that benefit will be construed as a prohibited compensation arrangement, so long as each individual benefit (i.e., each meal) is less than the per benefit amount described above.  There is no upper limit on the total amount of the medical staff incidental benefits, nor is there a requirement to track the total amount of medical staff incidental benefits provided to a medical staff member in any year.

Limited Remuneration to a Physician – 2026 Limit $6,237
This is an exception that was added on January 19, 2021 Rules that permits limited remuneration to an independent practicing physician for items or services without a written agreement (42 C.F.R. § 411.357(z)).  Remember that an employed physician is not required to have a written agreement so this exception will not apply to employed physicians.

Initially the limit for this exception was $5,000 per year.  However, that limit has increased annually and in 2026 this rule protects remuneration from a DHS Entity to an independent practicing physician for the provision of items or services provided by the physician to the entity that does not exceed an aggregate of $6,237 in calendar year 2026.  As with the exceptions described above, each year this amount will be further adjusted for inflation and can be found at the same place.

This exception can be of very helpful to cure technical violations of the Stark Law where an independent practicing physician may have been paid for a service without a written agreement.  But in order for this exception to apply, the total amounts of the payments to an independent practicing physician in calendar year 2026 cannot exceed the $6,237 limit, and the payment must satisfy all of the following conditions:  (i) is for items or services actually provided by the physician; (ii) is not determined in any manner that takes into account the volume or value of referrals or other business generated by the physician; (iii) does not exceed the fair market value of the items or services; and (iv) the arrangement would be commercially reasonable even if no referrals were made between the parties.

This exception may also be used for a lease but be sure to check the regulations since there are additional lease-specific rules that apply.  CMS has also stated that this exception will apply to all direct remuneration between a DHS Entity and a physician, regardless of how many such arrangements may be entered into in a calendar year.

CMS has stated that it does not expect this exception to cause hospitals and other DHS Entities to become lax in their compliance efforts.  However, as a result of the Stark self-disclosure process, CMS has recognized that a number of non-abusive, low value, compensation arrangements may be entered into that are not reduced to writing but otherwise comply with an exception.  CMS intends for this exception to protect such arrangements and by doing so should decrease the number of technical violations of the Stark Law that have in the past been submitted to the CMS self‑disclosure protocol.

Other Exceptions May Apply
Please keep in mind that these rules were adopted at a time when not as many physicians were employed as they are today.  As stated above, a written agreement is not required with an employed physician and so the limited remuneration exception is not needed for an employed physician.  With regard to the other exceptions described above, since a hospital or other DHS Entity is only required to comply with one Stark exception, there may be employment‑related policies that will apply in place of these rules.

Also, keep in mind that an independent practicing physician may be subject to a written agreement that may render these rules irrelevant.

So, these rules are helpful, but are much less relevant today than they have been in the past. 

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

Join HortySpringer partners Dan Mulholland and Henry Casale at the Hospital-Physician Contracts and Compliance Clinic Seminar in New Orleans April 9-11, 2026 and/or in Las Vegas November 5-7, 2026, to learn more about recent cases and trends, the happenings in Washington, DC that will affect health care providers, the OIG, the Anti-Kickback Statute, the Stark Law, the False Claims Act, and many more issues needed to navigate the new regulatory landscape confronting health care providers in 2026 and beyond.

And for a sassier discussion of recent cases involving the Anti-Kickback Statute and the False Claims Act, check out our latest episodes of The Kickback Chronicles podcast.