May 23, 2019

QUESTION:        We have a group practice that is affiliated with our health system.  The group practice employs physicians and advanced practice clinicians.  Two months ago, one of the employed physicians was given notice that the group was not going to renew his contract and his employment would expire in 90 days.  The contract provides that when his employment expires, his appointment and privileges at all health system hospitals expires too.

Last night, the Medical Executive Committee at one of our system hospitals started an investigation into complaints about this physician’s behavior.  If the investigation is not completed by the time his contract expires are we required to report this to the National Practitioner Data Bank as a resignation while under an investigation?
ANSWER:            The answer to this question is no.  You would not have to file a report with the Data Bank because the expiration of appointment and privileges was triggered by an expiration in his employment contract.   There is helpful guidance on this issue in the NPDB Guidebook.  In a related scenario, outlined in the Q&A: Reporting Clinical Privileges Actions section of the Guidebook, it noted that a report would not have to be submitted: “The termination was not a result of a professional review action and, therefore, was not reportable. It does not matter that the employment termination, which was a result of the hospital’s employment termination process, automatically resulted in the end of the practitioner’s clinical privileges.”

While your situation is a little different, the same principle should apply.  The physician did not resign during, or in exchange for not conducting, an investigation.  Rather, the physician’s appointment and privileges automatically expired as a result of the contract expiration.  The controlling act was the expiration of the physician’s contract which affected his appointment and privileges.

As a practical aside, we recommend that serious consideration be given to when an investigation should be commenced.  The Medical Executive Committee should only commence an investigation when it has exhausted collegial, progressive steps or if there are extreme circumstances, such as a pending precautionary suspension.

If the subject physician is employed by a system-affiliated group, there is nothing wrong with considering the physician’s employment status prior to the Medical Executive Committee commencing a formal investigation.  Generally, in these situations, when a physician’s employment is set to expire or be terminated, there would be no need for a formal investigation.  The problem behavior should not be ignored but less formal steps, such as the implementation of a performance improvement plan for behavior, could be taken in the interim to facilitate the smooth and orderly operation of the hospital.  A formal investigation is not likely the best use of your time or resources.

July 19, 2018

QUESTION:        We have two physicians in two different specialties, all four of whom have been willing to take emergency call two days each week, but they have announced that they want their employed advanced practice clinicians (“APCs”) to take their call on weekend days; they are no longer willing personally to take any call on weekends.  ED visits are rare in one of those specialties but common in the other.   Does that comply with EMTALA?

ANSWER:            According to CMS, hospitals must have specialty call schedules that meet the needs of patients in the community.  With only two physicians in any specialty, a reasonable call schedule can be developed with arrangements to transfer patients on the days (known in advance) when those specialists are not on call.  CMS will consider “all relevant factors” in determining compliance, and would expect that the call schedule be based on data showing when patients seek care in the ED for the specialties represented on the medical staff.  Are these specialists on call for their own practices on weekends?  That would be a factor to be considered per CMS.  Another hospital to which patients in need of a specialist on a weekend are transferred might report your hospital, leading to an investigation.  The specialists’ refusal to provide any weekend call thus could put the hospital in jeopardy.  CMS allows APCs to participate in the response to call pursuant to policies adopted by a hospital board.  However, CMS does not permit APCs to be listed on the call roster independently (even if they can practice independently in your state). CMS likely would not accept the inclusion of the APCs on the call schedule in lieu of a physician specialist (despite the newer language in the CMS Conditions of Participation and Interpretive Guidelines calling for APCs to have a greater role on the medical staff).  If a patient presents on a weekend in an emergency medical condition, needing the care of the specialist who employs (and supervises/collaborates with) the APC, the physician would be responsible to come in if the ED physician determines that the specialist is needed personally.  (That could be a condition of the grant of privileges.)  It would be best to convene a working group of physician leaders (including an ED physician), the management team, counsel, risk management and at least one Board member to review data showing when patients present to the ED in need of various specialties, and the relative burden among the specialties on the staff. That group can develop a compliant plan.  The risks are significant so it behooves every organization to develop a policy.

Be sure to join Ian Donaldson and Barbara Blackmond for The Complete Course for Medical Staff Leaders!  We cover EMTALA basics, as well as solutions to common dilemmas, in an entertaining way.