Question: Is there a time limit for precautionary suspensions? Or can it be until the investigation is completed, even if that takes more than 14 days?
Answer: The duration of a precautionary suspension is within the discretion of the hospital and medical staff leadership implementing the suspension, in accordance with any relevant provisions of the organization’s Medical Staff Bylaws or Credentials Policy. Of course, precautionary suspensions should only be implemented – and remain in place – as long as an imminent risk of harm to patients or others exists. But, there is no legal time limit for the duration of the precautionary suspension.
We get this question from time to time, probably because of some language found in the Health Care Quality Improvement Act (“HCQIA”). To clear up any confusion, let’s take a look at that language – and why it does not impose a time limit on precautionary suspensions.
The HCQIA is the federal statute which provides qualified immunity to those who conduct peer review activities and those who provide information during the course of credentialing and peer review.
With respect to those conducting peer review activities, the general rule is that HCQIA immunity is only available if the physician was provided notice and an opportunity to have a hearing and appeal before an adverse professional review action was implemented. There are two exceptions to this general rule, however, and hospitals and their leaders are excused from the “prior notice and hearing” requirements of the HCQIA in both of these situations:
- when privileges are restricted or suspended for 14 or fewer days, during which an investigation is conducted to determine the need for a professional review action; and
- when privileges are immediately restricted or suspended, subject to subsequent notice and hearing or other adequate procedures, where failure to take action may result in imminent danger to the health of an individual.
In our experience, hospital and medical staff investigations – especially if they involve clinical concerns – almost always take more than 14 days to complete. Therefore, we do not recommend that leaders proceed in suspending individuals pursuant to the first exception listed above.
Rather, we recommend precautionary suspension language that helps leaders fall within the safe harbor provided by the second option, described above. In other words, we recommend that the Bylaws or Credentials Policy provide for precautionary suspension (prior to investigations, formal “notice,” and hearing and appeal rights) when the leadership believes that failure to implement the suspension may result in imminent danger to the health of an individual. Further, we recommend review by the Medical Executive Committee on an expedited basis (no longer than 14 days after implementation of the suspension) regarding whether the suspension should be upheld until the issue can be resolved.
As a final point, be aware that the fact that a precautionary suspension is in place does not mean that an “investigation” must be conducted. There are a number of situations where an investigation might not be the right solution.
For example, the matter could potentially be resolved by gathering facts and working with the practitioner collegially, through the peer review process, to achieve performance improvements. In that case, resorting to formal investigation and “corrective action” procedures would not be necessary or warranted.
Note that in such a case, the precautionary suspension might be in place throughout the fact-gathering phase, while the peer review body considers the facts and develops a solution, and until such time as the practitioner completes any performance improvement activities. This could be far longer than 14 days.
By way of further example, a precautionary suspension might be implemented because of several bad and unexpected outcomes experienced by a physician’s patients within a short period of time (e.g., three patients died this month, unexpectedly). At the time the precautionary suspension is considered, you may have no idea why the unexpected and adverse outcomes have occurred. In turn, the precautionary suspension could be deemed necessary to put a hold on things while the cause of those outcomes is determined. In the end, resolving the matter might be as simple as consulting a few charts and talking to a few specialists to discover that these three patients were unusual in many regards and the outcomes, while unexpected, were not related to the care provided but, rather, to the unique circumstances of each patient.
Note that in this case, the precautionary suspension may be in place for only a few days.
In conclusion, precautionary suspensions serve the unique purpose of allowing the leadership to put things on hold – or implement a “pause” – while additional facts are gathered and an imminent risk is resolved. They are unrelated to whether or not an investigation is underway and the mere implementation of a precautionary suspension does not dictate that an investigation be conducted. Finally, there is no time limitation on precautionary suspensions, so long as your Bylaws or Credentials Policy language states that the grounds for precautionary suspension are imminent risk to the health of any individual.
(NOTE: Please consult counsel about situation-specific considerations regarding National Practitioner Data Bank reporting implications for precautionary suspension lasting more than 30 days.)