bylaws

September 21, 2023

Posted on by Courtney Patterson

QUESTION:
We recently received an NPDB report for one of our Medical Staff members.  The Adverse Action Code, used by the hospital in its NPDB report, was “Voluntary Surrender of Clinical Privilege(s), While Under, or to Avoid, Investigation Relating to Professional Competence or Conduct.”  However, the narrative section of the NPDB report reflected that the physician resigned during a “performance improvement plan” (PIP).  We don’t consider a PIP to be an investigation and ordinarily we would not report a physician who resigned during a PIP.

The problem is that the threshold criteria in our bylaws state that an individual is ineligible for appointment, reappointment or continued appointment if they “resign during an investigation or in exchange for not conducting an investigation.”  Our bylaws also provide that failing to satisfy threshold criteria at any time results in an automatic relinquishment of appointment and clinical privileges.

The physician is a longstanding member of our Medical Staff and we have never had any quality or behavior issues with him.  Based on the NPDB Report, he doesn’t seem to meet our threshold criteria and his appointment should be automatically relinquished, at least according to our bylaws.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Before you make any decisions, you are going to need additional information.  You can start with the physician and ask him to provide information regarding the underlying issues that led the other hospital to adopt the PIP.  You are also going to want a copy of the PIP itself.  Your bylaws should allow you to request this information from the physician.  You can also request the physician to sign an authorization so you can get information directly from the other hospital.  This will allow you to understand their side of the story.

Depending on what you learn, it may be appropriate to allow the physician to request a waiver for failing to satisfy one of the threshold criteria.  For instance, if you learn that the PIP was being carried out as part of initial collegial efforts and progressive steps activities, without any history of prior problems, and would not have risen to an investigation in your hospital, you may consider granting the physician a waiver.

The waiver process typically involves all the heavy hitters including input from the department chair and a recommendation from the Credentials Committee and Medical Executive Committee with final action by the Board.  Any grant of a waiver should expressly articulate the reasons supporting the decision.

Even if you decide to grant a waiver, that doesn’t mean you have to ignore the PIP.  If the PIP developed by the other hospital has useful conditions, you may want to adopt some or all of them to help you evaluate the physician’s performance and provide meaningful feedback to him.

The language in the Bylaws pertaining to automatic relinquishment if threshold criteria are not met should include a reference to the waiver process.  Therefore, the granting of a waiver should address and resolve the automatic relinquishment with no need for further action.

Both the threshold eligibility criteria and the automatic relinquishment language in the Bylaws are incredibly useful tools and are two of our “go to” favorites.  As we expand our list of robust threshold criteria and our list of events that trigger an automatic relinquishment, we should also strive to make sure that these are being applied in a way that is fair and reasonable.  Along these lines, it is important to make sure we have adequate information, especially from the involved physician, before making a final decision.  And if occasionally we bend to make sure the result is appropriate under the circumstances, that’s not a bad result either.

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

March 30, 2023

Posted on by Courtney Patterson

QUESTION:
We’re in the process of reviewing our Medical Staff Bylaws, so we need to get the Bylaws Committee up and running.  The Bylaws state that the Bylaws Committee will be chaired by the Vice President of the Medical Staff, but the Vice President resigned a few months ago.  Should the President of the Medical Staff just appoint another Bylaws Committee chair?  Or should it be the MEC that appoints the chair?  Or should the Bylaws Committee just vote on a new chair?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
The Medical Staff Bylaws should have the answer.  In the article in the Bylaws that deals with officers, their eligibility criteria, duties and election, there should be a section regarding what happens when there are vacancies.  Vacancies can be filled based on what works best for a particular hospital.  Usually, if there is a vacancy in the office of President of the Medical Staff, the Vice President is elevated to that role.  If there is a vacancy in the office of Vice President, Secretary or Treasurer, the Medical Executive Committee will usually appoint an individual to fill the office for the remainder of the term or until a special election can be held, whichever is decided by the Medical Executive Committee.  In this case, let’s assume that the MEC appoints the individual, in which case, the VP can take the reins of the Bylaws Committee.

January 5, 2023

Posted on by Courtney Patterson

QUESTION:
There is a lot of confusion amongst members of our Medical Staff about the relationship between Medical Staff appointment and clinical privileges.  For example, it is common to hear individuals refer to “Active Staff Privileges.” How can we help educate our Medical Staff on the difference between Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Many people confuse or intertwine these two concepts, even though they are separate and distinct.  As such, it is important that your bylaws recognize appointment and clinical privileges as distinct concepts.

Appointment relates to an individual’s membership on the Medical Staff (i.e., that they are recognized as being “on the team”).  With this membership comes certain rights and responsibilities, like voting, serving on committees, etc.

Clinical privileges relate solely to the patient care services an individual has been authorized to provide at the hospital.  They do not relate to an individual’s involvement in Medical Staff affairs and, in turn, are not tied to the individual’s staff category.  In fact, an individual may be a member of the Medical Staff but have no privileges (e.g., “Community Staff”) or could have clinical privileges but no membership on the Medical Staff (e.g., telemedicine providers).

Ensuring your Medical Staff Bylaws documents make this distinction will hopefully help to educate your Medical Staff on this issue.

September 29, 2022

Posted on by Courtney Patterson

QUESTION:
We are in the process of credentialing a new applicant.  We spotted some red flags pretty early on.  The Chair of the Credentials Committee knows physicians where the applicant trained.  Those physicians are not included by the applicant on the application.  Can the Credentials Committee Chair still call these physicians or are we limited to talking to the references the applicant listed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  When it comes to gathering information about applicants for appointment, we like to say, “The sky is the limit.”  This means that you are permitted to obtain information from anyone who might have information that is relevant to the applicant’s qualifications.  The permission to obtain information is probably reflected in your Bylaws or Credentials Policy.  For instance, we include the following language in our documents:

The individual authorizes the Hospital, Medical Staff leaders, and their representatives to consult with any third party who may have information relating to the individual’s professional competence or conduct or any other matter relating to their qualifications for initial or continued appointment, and to obtain communications, reports, records, and other documents of third parties that may be relevant to such questions.  The individual also specifically authorizes third parties to release this information to the Hospital and its authorized representatives upon request.

This language protects both your hospital for asking for information and the person who has the information for providing it to you.  As added protection, there should also be similar information in the application form itself.  So, the bottom line is that you are not restricted from gathering information from individuals who the applicant has identified in the application.

The one area where you want to be careful is if you are calling a current employer.  The applicant may not have given notice of their intention to leave.  Usually, we recommend holding off on asking for a reference from the current employer until a little later in the process.  But, ultimately, you can ask the employer for a reference and, as a best practice, follow up with a phone call as well.

Looking for other guidance on difficult credentialing issues, why not join us in Las Vegas on November 17-19 for Credentialing for Excellence!

September 22, 2022

Posted on by Courtney Patterson

QUESTION:
A physician recently resigned employment with a group that’s affiliated with the hospital.  Is there anything we should consider with respect to the physician’s Medical Staff appointment and privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes, you’ll want to evaluate whether the physician is still eligible for continued appointment and privileges under the Medical Staff Credentials Policy (or Bylaws).

Malpractice insurance is often provided through employers, so physicians who resign their employment often lose their malpractice coverage.  Most Medical Staff Credentials Policies state that such insurance is a threshold eligibility criterion for appointment and privileges and that physicians will “automatically relinquish” their privileges if they lose their insurance.  (If your Credentials Policy doesn’t say this, it should!)  So, one step is to determine if the physician has acquired new malpractice insurance.

Similarly, Credentials Policies often require physicians to have acceptable coverage arrangements to be eligible for appointment and privileges.  Resignation from a group may mean that those coverage arrangements are no longer in place, so the existence of appropriate coverage should be confirmed with the physician.

Finally, all the other eligibility criteria in the Credentials Policy should be reviewed to determine if the physician’s resignation from employment will cause the physician to be ineligible.  For example, some Credentials Policies require the physician to maintain an office within the hospital’s service area as a condition of being granted appointment and privileges.

On the employment side, a physician’s employment contract may contain an “incident and coterminous” provision saying that the physician’s privileges will automatically be resigned upon termination of the contract.  Similarly, the contract may include a restrictive covenant prohibiting the physician from practicing in a defined geographic area for a certain amount of time after the contract ends.  However, the employer (not the Medical Staff) is responsible for enforcing such contractual provisions.

December 16, 2021

Posted on by Courtney Patterson

QUESTION:
Our Medical Executive Committee initiated a formal investigation a few weeks ago – the first one we have done in years.  The investigating committee has met several times and is ready to make its recommendations. The bylaws reference a “report,” but the committee members would rather just come to the MEC meeting and give the findings in person. Is a written report really necessary?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes, yes, and YES.  A written report is required not only because your medical staff bylaws require one (which frankly, in a heightened legal process like a formal investigation would be reason enough to ensure a written report is created), but, more importantly, should a matter that led to an investigation result in an adverse recommendation (i.e., revocation of appointment and/or privileges, a restriction of privileges, etc.), the investigating committee report will likely be the most important document that helps to explain the reasoning of the MEC when it made that adverse recommendation.  Most medical staff bylaws permit the MEC to delegate the investigation process to another standing committee or to an ad hoc committee, and they do not require the MEC perform the investigation itself.  The MEC then relies heavily on the fact-finding, conclusions, and recommendations made by the investigating committee.  It is vitally important that such information be reduced to writing in order to create a strong record.

The report should include a summary of the review process (e.g., a list of documents that were reviewed, any individuals who were interviewed, etc.), specific findings and conclusions regarding each concern that was under review, and the investigating committee’s ultimate recommendations.  Capturing that level of detail in a verbal discussion in a (typically) one hour or less meeting, where individuals are asking questions and side discussions often occur, is very difficult.  You really want to have more than a set of minutes to rely upon in explaining the findings that were made.

July 8, 2021

Posted on by Courtney Patterson

QUESTION:
“We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital.  We think that information is relevant to her request for appointment at our hospital.  Can we still ask for the information?  Should we ask for a letter from her lawyer?  Should the application be held incomplete?”

ANSWER:
Yes!  Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty.  Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, professional conduct, character, ethics, and other qualifications – and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had submitted an application.  The physician argued that he received legal advice that signing the release could compromise his lawsuit against the other hospital, which had revoked his privileges.  The court held that because the physician had not provided the additional information that the hospital requested – regardless of the fact that a settlement agreement was in place – he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

May 20, 2021

Posted on by Courtney Patterson

QUESTION:   “It’s been a long time since we first adopted our bylaws. Some leaders are hoping for a clean slate with a total rewrite, others want to continue to tweak the bylaws we have. What’s the best approach?”

ANSWER:     There is no single right answer to this question but it is a question we get quite a bit.  We have found that if you have done a major revision of your bylaws documents (including your related credentialing, peer review, health and professionalism policies) within the last five years or so, you should be able to tweak the existing documents to reflect any changes in the law and recommended best practices.

Even if it’s been ten years or so since you totally revised your bylaws, you can probably stick with the current documents.  There are a couple of critical qualifications.  First, it’s important that you are starting with an excellent set of bylaws.  This means that the bylaws you have in place are easy to read and follow, the bylaws do not contain lots of internal cross-references (these are almost impossible to keep up-to-date), and the bylaws reflect best practices.  And second, it’s also important that you have been careful, thorough, and diligent in updating the bylaws every two years or so.  In our experience, updating a mediocre set of bylaws only takes you from a bad situation to one that is worse.

If it’s been more than ten years since you’ve done a major overhaul of your bylaws, it’s time to do so.  Just about everything has changed in the medical staff world in the last decade.  Whether it’s the role of APPs, the use of telemedicine, the need for consistency between and among sister hospitals, the focus on collegial efforts and progressive steps in the peer review process, or the non-punitive approach to dealing with health issues, the list of issues that have substantially changed is almost endless.

It’s so important to have modern, up-to-date bylaws, and related policies, to reflect the world in which you are practicing and to provide the necessary tools to solve the challenges you are likely to face.  A major overhaul of your bylaws documents might seem like a daunting task, but we can assure you the time you devote to the project on the front end, will be time well spent.  And you and your colleagues will reap the rewards for many years to come.

For more information on developing BFB (aka Best Friend Bylaws), join us live for The Complete Course for Medical Staff Leaders in Disney (September 19-21), Phoenix (November 18-20), Naples (January 27-29) or New Orleans (April 7-9).

 

 

August 20, 2020

Posted on by hortyspringer

QUESTION:        Do quorum requirements apply when a Medical Staff committee or department takes action via “ballot” rather than by holding a meeting?  Our Bylaws language authorizes us to take action by email, written, and electronic balloting, which our committees have been relying on more often in light of the COVID crisis.

We are hoping to hold our annual meeting this September via Zoom meeting and, for the sake of keeping that meeting as short and efficient as possible, move all action on Bylaws and policy amendments out of the meeting, to be conducted instead by electronic ballot.  Before we do that, we want to make sure we aren’t going to have to receive a majority reply in order to satisfy our quorum.  I don’t think we could achieve a majority response.

 

ANSWER:          For the most part, the way a Medical Staff provides notice of its meeting, the quorum requirements that apply, and its procedures for voting on matters are all entirely within its discretion.  So, the best answer about whether quorum requirements apply to votes taken by ballot is:  Check your Bylaws and other governance documents. 

It’s common for Medical Staff Bylaws to include language addressing how meetings are held, whether members can participate in meetings via telephone or electronic connection, what constitutes a quorum, and the number of votes necessary to pass a particular action.  Sometimes, when such provisions have been updated piece meal over the years to address action without a meeting (such as by ballot voting), the connection may not have been made about whether the quorum requirements (traditionally defined as a certain percent of members present at a meeting) apply to votes taken by ballot.

If, after consulting the Bylaws, you find that your documents solve the problem — great!  But, if not, maybe you can use the upcoming meeting as an opportunity to revise your quorum/meeting provisions to specifically address the matter.  One option for solving your dilemma would be to make “Quorum” a defined term within all of your Medical Staff documents.  Consider the following definition as a starting point:

“QUORUM” means, unless specifically stated otherwise, those Medical Staff Members with the prerogative to vote and who are either (a) the voting members Present (but not fewer than two members) at any regular or special meeting of the Medical Staff, department, division, committee, or other body, or (b) the voting members of the Medical Staff or any department, division, committee, or other body, as applicable, who return a response to a vote presented via mail, facsimile, e-mail, hand delivery, website posting, or telephone.  Exceptions to this general definition of Quorum (e.g. those members Present or returning a vote) exists as follows:

(a)        for meetings and votes of the Medical Executive Committee, the Credentials Committee, and the Committee on Professional Enhancement, where the Presence (or return of a response, in the case of voting via mail, facsimile, e-mail, hand delivery, website posting, or telephone) of at least __% of the voting committee members will constitute a Quorum; and

(b)        for amendments to the Medical Staff Bylaws that are presented to the Medical Staff via mail, facsimile, e-mail, hand delivery, website posting, or telephone (which require __% of the voting members of the Medical Staff to return a response in order to satisfy the Quorum requirement).

March 26, 2020

Posted on by hortyspringer

QUESTION:        We are a six-hospital system and are doing our best to address and anticipate the health care needs of patients with COVID-19.  Two of our hospitals are Critical Access Hospitals, which is why our medical staffs are not unified.  Nonetheless, we have a system CVO and our bylaws, credentials policy and privileging criteria are consistent.  If we want to be flexible about deploying needed practitioners to our various hospitals by using temporary privileges for those practitioners who do not hold privileges at each hospital, must we get new peer references from their primary system hospital? What are our other options for granting privileges for these practitioners at hospitals in our system where they are needed?

 

ANSWER:        Technically, each hospital with a separate CCN and license is supposed to get a peer reference to confirm current competence, under both Joint Commission and DNV GL NIAHO standards, without reference to whether a hospital is part of a system.  However, under these difficult circumstances, of course it makes sense to take advantage of the system’s knowledge of privileging at other system hospitals to speed up the availability of practitioners to go where they are needed most.  Here are some options:

  • For those who are somewhat risk averse and have the time and resources, the system CVO (or centralized Medical Staff Office) could pre-populate a short “application” form so there would be little the “applicant” would need to do other than sign electronically. That form could refer to a standard department chief/chair peer reference communication to be used within the system, which confirms current competence based on OPPE (or FPPE if applicable for recently appointed practitioners) or the last reappointment recommendation/report.  However, those under a performance improvement plan or investigation would not be eligible except on a case-by-case basis.
  • Pursuant to a system information sharing policy, Board resolution, or agreement, the standard department chief/chair peer references could be accessed electronically throughout the system or the actual recent OPPE or reappointment reports could simply be made available directly without the need for the separate peer reference form.
  • A system could simply let the practitioners go where they are needed, via a Board and MEC resolution, and justify it later if surveyors question it. Will surveyors really cite hospitals for having moved quickly to get known practitioners to respond to the community?  We doubt it.
  • A few systems have created a category on each medical staff in the bylaws for all physicians who are appointed to other hospitals’ staffs. The CVO has all the information.  The physicians in that category are permitted to exercise privileges at all system hospitals where the services they provide are offered, even though they designate a primary hospital.  (One reason that systems do this is to create a panel of peer reviewers to review cases at other system hospitals when there is a potential conflict, or to use those physicians as locum tenens in system hospitals to avoid contracting with locum tenens firms and thereby getting unknown physicians.)
  • Another option is for each hospital to grant disaster privileges quickly and as needed, in reliance on the CVO’s files containing licensure, and verify identity when they report for duty.

Join Charlie Chulack and Barbara Blackmond for the next installment in our Grand Rounds audio conference series on April 7 on Making the Most of your Relationship with Credentials Verification Organizations (CVOs).