January 7, 2021

QUESTION:        We recently had an applicant disclose that she was convicted for embezzling funds from an employer twelve years ago and served five months in a minimum security prison as part of her penalty.  Because the conviction occurred prior to the individual beginning medical residency training, it did not render her ineligible for consideration under our threshold eligibility criteria, which state (as relevant):

Since the start of medical or professional training, the individual must have not been convicted of, or entered a plea of guilty or no contest to, any felony or to any misdemeanor related to controlled substances, illegal drugs, violent acts, sexual misconduct, moral turpitude, domestic, child or elder abuse, or Medicare, Medicaid, or other federal or state governmental or private third-party payer fraud or program abuse, nor have been required to pay a civil money penalty for any such fraud or program abuse;

We processed the application, after getting substantial information from the applicant about the conviction and the steps she had taken to reform her conduct to ensure no reoccurrence.  But, this situation got us wondering whether we should make our threshold criteria more stringent.  Wouldn’t it be better to exclude, as a matter of course, all individuals with a felony background and then individually, on a case-by-case basis determine whether to make an exception and let them apply?  Though I think we ultimately reached a good outcome with this applicant, I’d be lying if I said that the prospect of denying the application and having to hold a hearing wasn’t on our minds.

 

ANSWER:          Processing applications from those with interesting backgrounds is the most difficult task that credentialers face.  When an applicant has something very concerning in their background, it often falls within the “eligibility criteria” set forth in the organization’s Medical Staff Bylaws – and renders the individual completely ineligible to have the application subjectively considered.  That’s easy!  When the applicant, like 99% (or more) of the applicants has nothing but good things in their background, subjective consideration requires very little scrutiny.  That’s easy!  But, the gray areas in between:  That’s hard.  And that’s where you found yourself with your applicant – a felon with a notable conviction and some prison time, but whose crime occurred a number of years ago, prior to medical training.

If the culture of your organization is such that, in virtually all cases (90% +), you would not want to even consider granting Medical Staff membership (or privileges) to an individual who has a certain characteristic – and that characteristic is reasonably related to the practice of medicine or the fulfillment of the responsibilities of Medical Staff membership – you should consider adding the characteristic to your threshold criteria.  With respect to criminal background, some organizations feel differently than others with respect to how the threshold criteria should be defined.  Some wish to include all felonies, no matter when they occurred and no matter whether they are certain types of crimes.  The thought in such organizations is that a felony is serious enough to call into question the individual’s judgment and reputation, no matter the other circumstances.  Other organizations, like yours, define the threshold criteria more narrowly, perhaps limiting those relevant to crimes to felonies that occurred within the past 5 or 10 years, or to felonies that relate to the practice of medicine (e.g. those related to violence, treatment of vulnerable people, fraud, insurance, etc.).  There are many, many variations out there.  If your organization feels that the existing language of the Medical Staff Bylaws (or Credentials Policy) is too narrow – and lets through too many applicants who should not be receiving consideration – then it’s time to open a dialogue on the matter and consider revisions.  Threshold criteria are not static!  They should be modified as necessary to achieve the goals of the organization.  Further, one of the reasons for a separate Credentials Policy, if you use it, is to allow the detailed credentialing criteria to be more easily modified to reflect the organization’s changing culture and goals.

Note, however, that threshold criteria are not meant to be used to prevent credentialers from using their judgment and expertise to carefully weigh the credentials of applicants who come with some background.  If the culture of your organization is that you would sometimes consider granting Medical Staff membership and/or privileges to an individual who has a certain characteristic, such as a felony conviction, but it depends on the type of conviction, how long ago the conviction occurred, the mitigating steps taken by the applicant to address the matter, the applicant’s assumption of responsibility, finite steps taken by the applicant to prevent recurrence, etc., then your threshold criteria may be just right.  In other words – you need not use the threshold criteria to screen out, as “ineligible,” those individuals who you would sometimes (often) consider for appointment or privileges.  Rather, you can use the standard credentialing process to weigh such individuals’ qualifications and make a subjective decision.  The credentialing process, which usually includes several layers of consideration is uniquely designed to promote careful consideration of each application – particularly in cases where something notable is found in the applicant’s background.

Of course, the standard credentialing process does come with the prospect of a “denial,” with the attendant costs of hearing and appeal rights.  So, why not adopt threshold criteria that are more stringent than you would sometimes like to enforce and then grant case-by-case exceptions?  The reason is that each failure to enforce the threshold eligibility criteria undermines the eligibility process generally.  The whole point of having objective eligibility criteria is to define objective factors that are less susceptible to biased implementation (do to them being objective and, in turn, easily discernible through reference to external sources).  Because bias is so limited in such situations, and subjective consideration is not required, eligibility determinations do not constitute judgments about an individual’s competence or conduct and, therefore, do not constitute “adverse professional review actions.”  It is adverse professional review actions that give rise to due process rights.

While we do generally recommend including in the Bylaws/Credentials Policy a process for granting waivers to those who fail to satisfy threshold criteria, we also recommend that the process be utilized only when exceptional circumstances exist – circumstances that are so significant they rule out the concern raised by the threshold criterion at issue (for example, a foreign-trained physician convicted of a crime equivalent to a felony in his home country, during a time of political upheaval and related to political activism would be a good choice for waiver, because the type of criminal conviction at issue does not raise concerns about reputation or judgment, in the way that most other criminal convictions would).

Importantly, however, if the waiver process is intended to be used – or is actually used – to grant waivers more routinely (for example, you find that 27% of reappointment applicants are being granted waivers of board recertification/MOC requirements after requesting waivers on the basis that they didn’t have time to get around to MOC), then the criterion is probably overly broad and should be modified until the organization is comfortable applying the criterion almost uniformly.  That eliminates as much subjectivity as possible/practicable, lending credence to the eligibility process generally.

November 19, 2020

QUESTION:        We have an applicant for medical staff appointment who is over 80 years old. Are there certain things we can require during the credentialing process before he gets on staff?

 

ANSWER:           Let’s start with Henry’s favorite answer:  “It depends,” because it always does.

We recommend that Hospital Medical Staffs try to comply with the Americans With Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) in the credentialing and recredentialing processes.  Whether the ADA and ADEA, which are both employment-based statutes, apply to the appointment process is still an open question.  But there are a number of cases, in reviewing these and other civil rights statutes, that have concluded there should be broad application of these laws and have applied them to the credentialing and recredentialing processes.

Furthermore, more and more physicians are employed, and these statutes will apply to your employed physicians.  It makes no sense to have two sets of rules in your credentialing process, one for employed physicians and one for private practice physicians (especially if the standard for private practice physicians is higher).  Therefore, we recommend that hospitals get as close as possible to compliance with the ADA and the ADEA, including in their appointment and reappointment processes.

Under the ADA, an employer is prohibited from requiring a health examination or making health-related inquiries until after a conditional offer of employment.  In the medical staff world, this means there can be no required physical examination and no health status questions until after the Credentials Committee has determined that an applicant is otherwise qualified to practice.

After the conditional offer, the employer is permitted to ask any health status questions and/or require a fitness for practice evaluation so long as it asks the same questions and requires the same evaluation for similarly situated applicants.  In the medical staff world, this means that after the Credentials Committee has made a conditional recommendation for appointment, a physical examination could be required and health status questions could be asked as long as this is the practice for all applicants.

If you do not typically ask health status questions or require a physical exam, you cannot do so just for the 80-year-old applicant.

There is an exception to this rule if a concern about a potential impairment is brought to your attention.  So, for example, if a peer reference raised a concern about the applicant’s cognitive impairment or eyesight or hearing or technical skills in the OR, you could follow-up.  The same would be true if during the interview the applicant was unsteady on his feet or confused.  Under these circumstances you would be permitted to follow-up on the health concerns and you could require a fitness for practice evaluation.

The ADEA would also prohibit you from making an appointment (or reappointment) decision based solely on the physician’s age.  The days of “congratulations on turning 75, you’ve been elevated to the Honorary Staff” are gone – as they should be.  It is worth pointing out that the requirement that a physician get a physical or cognitive exam based on the physician’s age (as some Late Career Practitioner Policies do) is being challenged by the EEOC.  See EEOC v. Yale New Haven Hospitalhttps://www.eeoc.gov/newsroom/eeoc-sues-yale-new-haven-hospital-age-and-disability-discrimination.  The challenge is based on both the ADEA and the ADA.

 

June 7, 2018

QUESTION:        Our hospital affiliated group signed an employment contract with a new surgeon.  Before we got very far with the credentialing process, he had moved to town and the Chief Medical Officer of the Group was putting pressure on the Credentials Committee to approve his application for appointment.  The problem is that there were multiple red flags we discovered, including a pending complaint with the state board, a very bad reference, and unexplained gaps in his professional experience.  If he had not been employed by our Group already, we would definitely not want to appoint him.  To make matters worse, we just learned that he resigned his appointment at the last hospital where he practiced and he’s in town.  What do we do?

 

ANSWER:            We hear some version of this problem on a regular basis from clients all across the country.  In many hospitals and health care systems, the recruitment and employment process are out of alignment with the credentialing process.  It is not uncommon (although it is very unwise) for employment decisions to be made, signing bonuses to be paid, and representations to be made to new recruits of the credentialing process being a “slam dunk” or a “done deal” before the Credentials Committee has reviewed the application.

Everyone who is applying for appointment must meet the same threshold eligibility criteria.  Everyone must bear the burden of demonstrating that they have the requisite:  (a) current competence; (b) technical skills; (c) clinical judgment; (d) adherence to the ethics of their profession; (e) good reputation and character; (f) ability to safely and competently exercise the clinical privileges requested; and (g) ability to work harmoniously with others.  When there are questions or concerns raised about an applicant, the application should be considered incomplete and not processed until those concerns are resolved.

Your credentialing process is the foundation for the quality of care that you deliver in your organization.  You should not take shortcuts or make exceptions, especially for employed physicians.  As hard as it might be, and as much pressure as they might feel, Medical Staff Leaders need to stay the course.  It is important that applicants are treated the same, regardless of whether they are being recruited and employed by the system or they are in private practice.  Keeping the burden on the applicant to address and resolve all concerns is the best course of action.  Medical Staff Leaders should also document, in detail, the concerns that they have.

Moving forward, find a way to align and coordinate your recruitment and credentialing efforts.  Bringing the people together who are responsible for these functions is an important first step.  Efforts should be undertaken to coordinate threshold criteria, objectives, and timelines.  It is also important to find a way to share information early on so the people who are doing the recruiting have the same information that Medical Staff Leaders will have when reviewing the application.  Whether they are working to recruit or credential physicians, the objectives should be the same – bringing high quality physicians into the organization in as timely a fashion as possible.

Please join us in our national program – Credentialing for Excellence – where we discuss this challenge and other credentialing challenges.