October 10, 2019

QUESTION:        The five medical staffs in our system are thinking about unifying.  Are there any particular steps we need to follow and any changes we need to make to our bylaws?

 

ANSWER:          In May 2014, CMS revised the Medicare Conditions of Participation to allow a multi-hospital system to have a unified and integrated Medical Staff.  There are several steps that must be taken in the integration process.  First, the system must ensure that there is nothing in the state hospital licensing statutes or regulations that would prohibit the medical staffs of separately licensed hospitals from integrating into a single staff.

Second, the Board (and there must be a single Board) must document in writing its decision to use  a unified medical staff model.  This decision would be conditioned on acceptance by the hospitals’ medical staffs to opt-in to an integrated medical staff model.

Third, the medical staff of each of the hospitals must take a separate vote to opt in or opt out of the unified medical staff.  The vote at each hospital must be governed by the respective medical staff bylaws in effect at the time.  Only voting members of the medical staff who hold privileges to practice on site at the hospital may participate in the vote.

Fourth, the unified medical staff will also want to adopt new medical staff bylaws and related policies.  The new bylaws should take into account the unique circumstances of each hospital, including any significant differences in the patient populations and the clinical services that are offered at each hospital.

Importantly, the new bylaws must also include a process by which the voting members of the medical staff who exercise clinical privileges at the hospital may vote to opt out of the unified medical staff in the future.

May 30, 2019

QUESTION:        We have some advanced practice nurses and physician’s assistants who are lobbying to become members of the Medical Staff.  Some physicians support the idea, but others aren’t so sure.  What are you seeing out there?

ANSWER:             In our experience, most Medical Staffs are composed of physicians, dentists, oral surgeons and, increasingly, podiatrists.  In some states, it is required that others be appointed to the staff, such as psychologists in Ohio.  State laws still vary. For example, in Pennsylvania, a hospital wanting to include podiatrists must seek an exception from the Department of Health, but it is readily granted.

As CMS has amended the Conditions of Participation and Interpretive Guidelines in recent years, the door has been opened:

§482.22(a) Standard: Eligibility and Process for Appointment to Medical Staff

The medical staff must be composed of doctors of medicine or osteopathy. In accordance with State law, including scope-of-practice laws, the medical staff may also include other categories of physicians (as listed at §482.12(c)(1)) and non-physician practitioners who are determined to be eligible for appointment by the governing body.

***

Interpretive Guidelines §482.22(a) The hospital’s governing body has the responsibility, consistent with State law, including scope-of-practice laws, to determine which types/categories of physicians and, if it so chooses, non-physician practitioners or other licensed healthcare professionals (collectively referred to in this guidance as “practitioners”) may be privileged to provide care to hospital patients.  All practitioners who require privileges in order to furnish care to hospital patients must be evaluated under the hospital’s medical staff privileging system before the hospital’s governing body may grant them privileges.  All practitioners granted medical staff privileges must function under the bylaws, regulations and rules of the hospital’s medical staff.  The privileges granted to an individual practitioner must be consistent with State scope-of-practice laws.

CMS provided the following statement in 2014:

For Information Only – Not Required/Not to be Cited

CMS expects that all practitioners granted privileges are also appointed as members of the medical staff.  However, if State law limits the composition of the hospital’s medical staff to certain categories of practitioners, e.g., only physician practitioners, there is nothing in the CoPs that prohibits hospitals and their medical staffs from establishing certain practice privileges for those specific categories of non-physician practitioners excluded from medical staff membership under State law, or from granting those privileges to individual practitioners in those categories, as long as such privileges are recommended by the medical staff, approved by the governing body, and in accordance with State law.  (79 FR 27114-27115, May 12, 2014)

Today, it is becoming more common for a category to be added to the Bylaws for Advanced Practice Clinicians, and APCs may serve on committees with vote.

Join Barbara Blackmond and Josh Hodges for the next Grand Rounds audio conference on June 4, “Q&A on Advanced Practice Clinicians,” where they will discuss practical issues, including credentialing, privileging, peer review, collaborative practice in states allowing independent practice for some APCs, the role in emergency call, hearing rights and emerging issues, such as the role of APCs in admission, discharge, and  consults.

 

August 23, 2018

QUESTION:        I have always been told that peer review is conducted by peers — so representatives from legal should not be present at peer review meetings.  But, recently, I heard a Horty Springer attorney suggest that legal should be called “early and often.”  Which is it?

ANSWER:            Both!  Well, sort of.  We have long recommended that collegial meetings between Medical Staff leaders and their colleagues should be “informal” and not include lawyers.  “Informal” does not mean that you should not prepare for those meetings (you should have talking points and an objective when you walk into the meeting).  However, it does mean that if peer review is going to work best, and practitioners are going to buy-in to the process and believe that it is truly oriented towards helping them succeed, then it has to be conducted with finesse and sensitivity to how interventions will be perceived by those under review.  Lawyers do not belong in those meetings.  Lawyers add an air of formality, tend to talk when they should remain quiet, and their mere presence can give the impression that the process is adversarial.  Any conversation that occurs between doctors will look MUCH different if their lawyers are sitting by their sides.  It is for this reason that we have long recommended that the Medical Staff Bylaws and peer review policies of hospitals and medical staffs specifically state that lawyers cannot attend meetings with the practitioner under review (and by the same token, have long told our clients that it would not be advisable for us to be present either).

This does not mean that Medical Staff leaders should not consult counsel early and often throughout the peer review process.  Too often, legal is called to assist an MEC after it has just voted to revoke a practitioner’s privileges or the day after a precautionary suspension has been imposed by the Chief of Staff.  It can be very difficult for your legal counsel to help you follow your processes precisely — and document your actions in a way that will create the best defense — if called after-the-fact.  And waiting to seek advice can result in the leadership sacrificing the chance to pursue additional avenues for resolving the issue (such as automatic relinquishment or a formal performance improvement plan) that may have avoided the need for “disciplinary” action and its attendant costs (such as hearings, appeals, NPDB reports, and litigation).

In an ideal scenario, the Medical Staff leadership would have a close and ongoing working relationship with legal counsel and would discuss with counsel any time there are questions, but at least in the following situations that arise during the course of peer review activities:

  • Whenever addressing a peer review matter involving a practitioner who has previously sued the health system, hospital, or any Medical Staff leader
  • Whenever the practitioner has retained a lawyer and is using a lawyer to communicate with the leadership
  • Whenever the practitioner has claimed failure to comply with the Bylaws or Rules and Regulations or other policies of the Hospital or Medical Staff
  • Whenever the practitioner has claimed that the Hospital or Medical Staff leadership has acted unlawfully with respect to peer review activities
  • Whenever the practitioner has claimed impermissible conflicts of interest, anti-competitive activity, or discrimination is influencing the peer review process
  • Whenever the practitioner claims to be a whistleblower during the course of peer review activity
  • Whenever the peer review concerns involve matters with particularly legal significance (e.g., violation of EMTALA or HIPAA or concerns of medical necessity)
  • Prior to implementing any precautionary suspension, if possible. If previous consultation with legal is not possible (for example, the issue arises in the middle of the night and is an emergency), legal should be consulted as soon as possible (for example, first thing the next morning)
  • Whenever developing a formal Performance Improvement Plan
  • Whenever considering whether to commence a formal investigation
  • Whenever conducting a formal investigation
  • Meetings of the MEC or Board where adverse professional review action will be considered (for example, when the MEC meets to review the report of an investigating committee)
  • When conducting a Medical Staff hearing or appeal
  • When filing an NPDB report or a report to the state licensure board
  • When responding to a subpoena from a licensure board or other governmental agency that is seeking information about a Medical Staff member
  • When drafting a reference for a practitioner about whom some “not nice” things will be said

This list is not necessarily exhaustive.  But we know from experience that the scenarios listed above have legal implications and Medical Staff leaders can protect themselves (and better serve their colleagues) by seeking advice on how to proceed when handling those tough scenarios.  Seasoned leaders often need less guidance, particularly as their experience increases.  But, even then it can be helpful for leaders, who are often full-time clinicians — to rely on legal to help with document preparation and identification of applicable Bylaws, policies, and other matters that need to be considered during the course of review.

To conclude — should legal be involved in peer review?  Absolutely!  With the caveat that meetings with the practitioner under review are meant to focus on peer-to-peer interaction and likely are not the right venue for attorney participation or attendance.

June 14, 2018

QUESTION:        We have an applicant for medical staff appointment who disclosed on her application that she was under probation for a time during her residency.  Despite our requests, she has refused to provide any additional information related to this matter.  She also has declined to authorize the site of her residency to release any information to us.

We have language in our bylaws stating that the burden is on the applicant to provide any information requested, or his or her application will be held as incomplete.  Is this a situation where we can enforce this provision?

 

ANSWER:            Most definitely.  Holding an application as “incomplete” is one of the best tools you have as a credentialer.  And when it comes to enforcing such a provision, the case law is on your side.

Numerous courts have held that a hospital can refuse to process an application that is incomplete.  For example, in a case with facts very similar to the situation described above, an Illinois appeals court held that an applicant must

“provid[e] all information deemed necessary by the hospital…as a condition precedent to the hospital’s obligation to process the application.”

Similarly, in a case where a physician up for reappointment refused to release information on pending malpractice claims, an appeals court in Tennessee ruled in favor of the hospital, finding that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

March 9, 2017

QUESTION:        In our Medical Staff Professionalism Policy, should we have a different process for addressing reports of sexual harassment?


ANSWER:           
Since there are unique legal implications surrounding sexual harassment, we recommend that a policy addressing inappropriate conduct incorporate a modified process for review of reports involving sexual harassment.

We recommend that a single, confirmed incident of sexual harassment trigger a well-defined process that involves the medical staff and hospital taking immediate and appropriate action to address the conduct and to prevent it from reoccurring.  For example, a personal meeting should be held with at least two members of the professionalism committee (or similar committee) to discuss the incident.  If the physician acknowledges that the incident occurred and agrees not to repeat the conduct, the physician is sent a formal letter of admonition and warning that is placed in his or her file.  The letter should set forth any additional actions or conditions imposed on the physician’s continued practice at the hospital which result from the meeting.  If the physician refuses to acknowledge the confirmed incident of sexual harassment or there are confirmed reports of retaliation, the matter should be immediately referred to the Medical Executive Committee to conduct a review consistent with the credentials policy or bylaws.  A well-defined process which incorporates these details demonstrates the hospital’s efforts to address any incidents of sexual harassment and attempts to prevent them from occurring again, minimizing the risk of the hospital being held liable in court.

December 22, 2016

QUESTION:        As we are preparing for a medical staff hearing, a member of our Medical Executive Committee asked why our Medical Staff Bylaws state that the Chief Executive Officer appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

ANSWER:           No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, we have seen the argument made that the selections were biased in favor of the MEC and are not neutral  – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

September 29, 2016

QUESTION:        Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver.  Only if a waiver is granted by the Board is the individual’s application then processed.  When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER:            Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver).  And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone.  So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria.  To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process.  This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility).  But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

July 14, 2016

QUESTION:        We have several ambulatory surgery centers (“ASCs”) in our System.  We recently looked at the bylaws of the ASCs and they are quite antiquated.  Even more of a concern, we learned that the credentialing process in the bylaws is not being followed at the ASCs.  We need to work with the ASCs to change their bylaws, but where do we start?  The medical staff bylaws (and credentials policy) for the hospitals in our System are now all very similar.  Can we incorporate the ASCs into the medical staff bylaws?

ANSWER:           You asked if the ASCs could be incorporated into the medical staff bylaws of the hospitals in your System.  This approach has the appeal of simplicity.  However, given the vast differences in the size, structure, and organization of the medical staffs at the ASCs and the medical staffs at the hospitals, this option seems awkward at best.  There might also be some regulatory issues with this approach.  Specifically, the ASCs are required to have their own medical staffs in some states.  Thus, in order for the medical staffs of the ASCs to function as a part of the medical staffs of the System hospitals, it could be necessary to seek an exception from the Department of Health.

Another option would be to take the medical staff documents that were prepared for the System hospitals’ medical staffs and use them as a starting point for the creation of governance documents for the ASCs.  We recommend this approach for several reasons.  First, this approach would provide an opportunity to update the ASC bylaws to reflect current practices.  Second, this approach would help ensure that the ASC bylaws are well-drafted and in compliance with controlling law.  Third, while the hospital medical staff documents would have to be substantially pared down and streamlined for use by the ASCs, these documents would include key provisions, such as a System Credentials Committee, a Professional Affairs Committee to resolve disputes among the Medical Executive Committees, and language to ensure that decisions at one System facility are applicable at all System facilities, which would facilitate uniformity within the System.

February 18, 2016

QUESTION:        A registrant at our recent Complete Course for Medical Staff Leaders in Naples asked: Can you change the bylaws AFTER someone’s already credentialed, even if it might make that physician ineligible at recredentialing (e.g., thresholds)? If ineligible, is that reportable to the NPDB?

ANSWER:          Yes and No. An organization can decide to revise its eligibility criteria; it may choose to “grandfather” current staff members (upheld by several courts in cases involving board certification, when potential applicants alleged disparate treatment). However, grandfathering is not required. An organization can decide to apply the new criteria uniformly.  It is fair to provide advance notice and an opportunity for those affected to be heard (and to become eligible, if possible).

Leaders should carefully assess the need to apply the standard to current members and to articulate the quality rationale. A determination of ineligibility is not an adverse professional review action and is not reportable to the National Practitioner Data Bank.

May 21, 2015

QUESTION:        We are currently in the process of revising our Medical Staff Bylaws and have been trying to pin down the requirements for the history and physical (“H&P”) provisions in the Bylaws. As a starting point, could you let us know what details are required by federal law and regulations and accreditation standards?

ANSWER:        The Medicare Conditions of Participation for hospitals (“CoPs”) have several requirements for what must be included in the Medical Staff Bylaws when it comes to H&Ps. The CoPs require that the Bylaws include a requirement that a physician, oromaxillofacial surgeon, or “other qualified licensed individual in accordance with State law and hospital policy” complete an H&P no more than 30 days before or 24 hours after admission or registration, but at all times prior to surgery or a procedure requiring anesthesia services. When the H&P is conducted within 30 days before admission or registration, an update (which notes any changes in the patient’s condition) has to be completed and documented by a licensed practitioner, who holds privileges at the hospital to perform an H&P, within 24 hours after admission or registration but always before surgery or a procedure requiring anesthesia.

The CoPs do not address content-related requirements of H&Ps, other than noting in the Interpretive Guidelines that “[t]he purpose of a medical history and physical examination…is to determine whether there is anything in the patient’s overall condition that would affect the planned course of the patient’s treatment, such as a medication allergy, or a new or existing co?morbid condition that requires additional interventions to reduce risk to the patient.”

The Joint Commission Accreditation Standards reiterate the timing requirements for H&Ps and are, similar to the CoPs, not overly prescriptive when it comes to content-related details. In a recent FAQ posted on its website on March 5, 2015, the Joint Commission noted, generally, that “[o]rganizations have the flexibility of determining the content of the H&P based on the population served and the services provided.” Some additional guidance is contained in the glossary of the hospital Standards, which provide a definition for an H&P. That definition indicates that the history portion “may include information about previous illness, previous medical or surgical interventions and response to treatment, family health history, and social, cultural, economic, and lifestyle issues that may affect an individual’s health and well-being” (emphasis added). The physical portion “involves the physical examination of the individual’s body by the following means: inspection, palpation, percussion, and auscultation….”

Under the CoPs and Joint Commission Accreditation Standards, there is no requirement that the content-related details of H&Ps be included in the Bylaws. Thus, these content-related details may be included in other medical staff documents, such as the Medical Staff Rules and Regulations (however, we recommend including all the details for H&Ps in the Bylaws for ease of reference).

Occasionally, state law and regulations will contain H&P requirements that are different, and at times more restrictive, than the CoPs and the Joint Commission’s Standards. The same applies for commercial insurer billing requirements. Commercial insurers will often dictate what needs to be included in the H&P (e.g., age, height, vital signs, past medical and behavioral history, family history, physical examination, medical impression, etc.) for reimbursement purposes. Accordingly, state law and regulations, as well as any commercial insurer (with which your hospital contracts) requirements, must be consulted when deciding on what will be included in the H&P sections of your Medical Staff documents.