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.