Credentials Committee

June 29, 2023

Posted on by Courtney Patterson

QUESTION:
We are working on revisions to our medical staff bylaws and one of the committee members asked whether our credentialing process complies with the Americans with Disabilities Act (“ADA”).  This led to a long and winding discussion about whether we need to comply with an employment law in this context.  Do we?  Isn’t credentialing completely separate from employment?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
It is true that the ADA is an employment law, so on its face, does not appear to apply to credentialing processes.  It is also true that “typical” credentialing practices would likely violate the ADA – because hospitals have traditionally treated health information being sought from applicants just as they would treat any other information being requested on an application form – references, verifications, licensure matters, etc.  As a result, in the credentialing process, health information is requested and reviewed at a stage that is likely analogous to the “pre-offer” stage under the ADA – the most restrictive stage of employment where employers aren’t yet permitted to request any health information.  (Under the ADA, employers do eventually get to request and consider everything necessary that is related to health.  It is more a question of managing the timing of those requests.)

As you pointed out, though, credentialing IS different from employment, so why should we care if the process is compliant with the ADA – an employment law?  There are several reasons.  First, there are some hospitals that do directly employ physicians, and the ADA is clearly applicable to those relationships.  Second, even if the hospital isn’t the employer, most hospital-affiliated physician groups make employment contingent on the physician obtaining privileges at an affiliated hospital (i.e., successfully completing the credentialing process), and it is unclear whether a court would agree that one arm of a corporate entity can ask questions or seek information that the other arm of the same entity could not yet legally request.  Third, some jurisdictions have expanded the ADA to independent contractor relationships, and finally, there is a trend in court cases today where independent contractor physicians are claiming to be employees even when there are no employment agreements in place, claiming that the hospital exercises sufficient control over them to render them employees (for example, by making them comply with protocols, order sets, taking call, and medical staff bylaws requirements).

One way to address concerns about the credentialing process would be to change the timing of requesting and reviewing health information, asking detailed questions about the health of all applicants but waiting to review that information until after the Credentials Committee has determined that an individual is “otherwise qualified” for the clinical privileges requested on the basis of everything else that is being considered – education, training, experience, etc.  Only after that determination is made should the health information be reviewed.  Due to the sensitivity of that information, we also recommend that only one or two medical staff leaders review that information – reporting to the Credentials Committee that there are no concerns, or that concerns were raised and now the committee needs to review and discuss accommodations.

If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.

October 13, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

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!

December 2, 2021

Posted on by Courtney Patterson

QUESTION:
Who should be on our Credentials Committee and what should be the terms of service for the members?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
A Credentials Committee is best composed of experienced leaders, such as past chiefs of staff or other physicians who have had medical staff leadership experience.  Many medical staffs have representation from a variety of specialties to ensure that the Credentials Committee has the expertise necessary to address difficult credentialing and privileging issues.  With the increasing number of advanced practice providers (e.g., nurse practitioners and physician assistants) providing services in hospitals, more and more Medical Staffs are appointing an advanced practice provider to the Credentials Committee as a voting member and for that individual’s input and expertise on the topic of credentialing and privileging these providers.

Service on the Credentials Committee should be the primary medical staff obligation of the members and terms should be at least three years so that committee members have an opportunity to gain some experience and expertise in credentialing.  The terms should also be staggered so that there is always a repository of expertise on the committee.  The Credentials Committee’s primary responsibility is to review and make recommendations on applications for medical staff appointment and clinical privileges.  It can also oversee the development of threshold eligibility criteria for clinical privileges.

For answers to all your credentialing questions, join Lauren Massucci and Charlie Chulack for the Horty, Springer & Mattern seminar “Credentialing for Excellence” on March 10 through 12, 2022 in Savannah, Georgia, or April 7 through 9, 2022 in New Orleans.

February 6, 2020

Posted on by hortyspringer

* * *
QUESTION:      What do you recommend for the composition of the Credentials Committee and the terms for service for the members?
* * *

ANSWER:         A Credentials Committee is best composed of experienced leaders, such as past chiefs of staff or other physicians who have had medical staff leadership experience.  Many Medical Staffs have representation from a variety of specialties to ensure that the committee has the expertise necessary to address difficult credentialing and privileging issues.  With the increasing number of advanced practice clinicians (e.g., nurse practitioners and physician assistants) providing services in hospitals, more and more Medical Staffs are appointing at least one advanced practice clinician to the Credentials Committee as a voting member and for that individual’s input and expertise on the topic of credentialing and privileging these providers.

Service on the Credentials Committee should be the primary medical staff obligation of the members and terms should be at least three years so that committee members have an opportunity to gain some experience and expertise in credentialing.  The terms should also be staggered so that there is always a repository of expertise on the committee.  This Credentials Committee’s primary responsibility is to review and make recommendations on applications for medical staff appointment and clinical privileges.  It can also oversee the development of threshold eligibility criteria for clinical privileges.

January 10, 2019

Posted on by hortyspringer

QUESTION:        A brand new member of our Credentials Committee, who is opposed to a request from a physician in a different specialty to apply for a privilege to perform a procedure that member performs himself, has been lobbying other committee members to deny the request and has asked that the request first be referred to his department for a vote.  A written application has not been submitted. The potential applicant did not have residency training in this procedure but, rather, took a short course conducted by an equipment vendor.  The physician requesting the privilege has threatened a lawsuit on antitrust grounds, because he has learned about the lobbying.  How can we manage this situation?

ANSWER:            If your Bylaws or Credentials Policy does not have a section on how to manage requests for privileges that cross specialty lines, consider deferring consideration until such language is adopted and implemented.  It is a best practice to have the Credentials Committee develop eligibility criteria before processing requests (both for new privileges and for practitioners seeking privileges in different specialties).  If current criteria refer to residency training in one specialty, the committee can review possible alternate pathways.  Any physician, including the potential applicant, can submit proposed criteria for education, training and experience.  The committee should also consider how FPPE would work, indications for the procedure, and how call coverage and complications would be handled. How much training is sufficient to demonstrate competence?   A survey of other hospitals would be a helpful step to demonstrate objectivity. Also, a Credentials Committee member who is in an affected specialty has a conflict of interest and should be recused from the process (but he can submit proposed criteria).  It is best if recusal is discussed with the affected member in advance of the meeting. The minutes should reflect that he left the room before final deliberation and vote on the criteria. A conflict of interest should not be viewed as a judgment on the individual’s character but, rather, as a step to protect the integrity of the process.  And, departments should not vote on criteria or specific requests; that is too easily challenged as a conspiracy in restraint of trade. The applicant’s request should not be processed until either new eligibility criteria are adopted by the Credentials Committee, MEC (and Board), or the current criteria are confirmed. A determination of ineligibility is not a “denial.”  (If the Credentials Committee and MEC recommend, and the Board determines to adopt, eligibility criteria with an alternate pathway that would enable this request to be processed, the interested committee member should also recuse himself from the consideration of the application.)

For more information, be sure to join Ian Donaldson and Barbara Blackmond for The Complete Course for Medical Staff Leaders!  You may want to send the new Credentials Committee member to the Complete Course if he has little leadership experience or to our Credentialing for Excellence program if he is otherwise experienced but lacking depth in credentialing!

June 7, 2018

Posted on by hortyspringer

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.

January 4, 2018

Posted on by hortyspringer

QUESTION:        In the past, our reappointment process has been rather perfunctory.  The names of physicians and other practitioners who are up for reappointment get put on a list which is approved by the Credentials Committee, passed on to the Medical Executive Committee, and then forwarded to the Board in a consent agenda.  What steps can we take to make our reappointment process more meaningful?

ANSWER:            This is a great question.  Many hospitals are like yours and muddle through the reappointment process without getting a lot of bang for their effort.

The reappointment process, which includes the renewal of appointment and clinical privileges, is an important opportunity to review and confirm that a practitioner satisfies all of the core competencies.  To make the reappointment process more meaningful, you must have data.  The ongoing professional practice evaluation reports that you generate for all practitioners will provide a good starting point since they evaluate competence in a variety of areas throughout the appointment term.

You should also review and consider any licensure or disciplinary action, as well as any malpractice claims, settlements, or judgments that occurred during the previous reappointment term.  Of course, you should be receiving notice of and reviewing all of these events as they occur, but the reappointment is a good time to verify that the review has taken place.

It is also important that you review the clinical privileges that a practitioner is requesting at reappointment.  If a practitioner has not satisfied volume requirements for a privilege or has not exercised a privilege that is volume?sensitive, the practitioner may be ineligible to seek the privilege or may be required to provide additional evidence of current clinical competence before having the privilege renewed.

And it is important to consider your other quality data at reappointment.  Make sure the Credentials Committee, Medical Executive Committee and Board are aware of any peer review actions, including informational and educational letters, collegial interventions and performance improvement plans.  While these activities may not affect the final reappointment decision, they may warrant that the practitioner receive a different letter at reappointment which reflects clinical or behavioral matters that are being reviewed and addressed through the peer review process.

May 25, 2017

Posted on by hortyspringer

QUESTION:        The Medical Executive Committee disagrees with the way the Credentials Committee is managing a particular issue that has come before the Credentials Committee for consideration.  Since the MEC has higher authority in the medical staff leadership structure, can it direct the Credentials Committee on how to manage the issue?  Or is the Credentials Committee free to proceed as it sees fit?

ANSWER:            While it is true that the Medical Executive Committee is the “supreme” authority in terms of the medical staff leadership, most medical staffs are structured with built-in checks and balances and roles and responsibilities that are assigned to specified individuals or committees.  While the Medical Executive Committee may exercise oversight over all medical staff activities, that does not mean it can intervene any time that it disagrees with the way that something is being done.  So, if the Credentials Committee is performing assigned functions, it has some discretion to determine how to perform those functions – provided that it abides by the Medical Staff Bylaws and other relevant policies.

The Medical Executive Committee can offer suggestions, but has no authority to intervene with the exercise of the Credentials Committee’s discretion by telling it how to perform its duties (again, unless the Committee is violating the Bylaws or a policy or acting unlawfully).  This does not mean that the MEC is powerless, however.  Remember that the activities of all medical staff committees are subject to oversight of the MEC.  So, if the matter is one in which the Credentials Committee is making a recommendation to the MEC (such as a recommendation for a waiver of threshold criteria, of criteria for new clinical privileges, of criteria for clinical privileges that cross specialty lines, of appointment and privileges for an applicant, etc.), then the MEC can take the opportunity, during its review, to “correct” any mistakes it thinks the Credentials Committee may have made.  That could mean gathering more information, if the MEC feels the Credentials Committee did not do enough to scour an applicant’s background.  It could mean reviewing the matter anew, if it felt the Credentials Committee did not adequately address conflicts of interest during its review.  It could mean talking to an applicant, if it felt the Credentials Committee did not give the applicant ample opportunity to be heard.  The list goes on and on.  The point is, the MEC – as a subsequent level of review – has the opportunity to set right a multitude of perceived wrongs.

On a related matter, when medical staff leaders do not see eye-to-eye about how to manage day-to-day medical staff activities, that can indicate that it’s time for more education about the roles and responsibilities of hospital and medical staff leaders, as well as required credentialing and peer review functions (and the risks of not completing those functions well).  Leaders who are well-informed about the content of their Bylaws, the Credentials Policy, and related Medical Staff policies are likely to be more consistent in how they perform their leadership functions.  All medical staff leaders should also receive education about legal protections for leaders, the risks to legal protection (such as frolic and detour), and ways to maximize legal protections (e.g., through management of conflicts of interest, good documentation, reasonableness when dealing with other practitioners, and following a “patient safety first” rule of thumb).

February 9, 2017

Posted on by hortyspringer

QUESTION:        Our Credentials Committee recently considered a request for a waiver, submitted by a physician who does not satisfy our threshold criteria for appointment.  A few years back, this physician pled guilty to a felony battery charge, which ultimately led to a downward spiral in which he violated a restraining order and had his probation revoked.  The physician was forthcoming about his criminal background when he submitted his application, though his explanation largely deflected blame for the matters leading up to his arrest, guilty plea, and probation violation.

Before processing the physician’s request for a waiver, the Chief of Staff and CMO have recommended that the physician be required to provide substantial information (including arrest and/or court records) regarding these matters.  The Chair of the Credentials Committee disagrees and believes that the Credentials Committee, which has the responsibility pursuant to the Medical Staff Credentialing Policy to consider and make recommendations regarding waivers, should simply talk with the physician to get his side of the story and, if any questions remain after that, decide whether to ask for additional information.  Who is right?

ANSWER:            Most Medical Staff Bylaws or Credentialing Policies call on the Credentials Committee to consider and make a recommendation on requests for waivers of threshold eligibility criteria.  Often, the Credentials Committee is given broad discretion regarding what information to consider when reaching its recommendation.  And, as the individual charged with planning the agenda and activities of the Credentials Committee, the Chair would have the ability to exercise much discretion in determining how the committee would go about considering any request for a waiver.

The Credentials Committee may wish to review the application (or preapplication) submitted by the individual or any explanation submitted by the individual in conjunction with his or her request for a waiver.  It may also wish to speak with the individual regarding the waiver request and the circumstances that led to the individual being ineligible.  Therefore, the Chair’s expressed preference for talking with the individual is not totally out of line.

However, in almost any circumstance where a waiver is to be granted, the Credentials Committee is going to want to also verify the facts with third parties – to corroborate the story that is being told by the individual requesting a waiver.  The only exceptions to this would be when the circumstance is so obvious that no verification is required.  This may be the case, for example, if the individual does not have a coverage arrangement with another member of the medical staff, but explains that this is because no one else is practicing in the subspecialty in which he or she is requesting privileges.  Another example would be an individual whose office or residence is farther from the hospital than required by Hospital policy, in which case the individual may simply be providing the relevant addresses and explaining why the small discrepancy in distance will not affect his or her ability to respond appropriately to patients.

In the case at hand, where the individual is requesting a waiver related to his criminal history, it is hard to imagine any scenario where the Credentials Committee, MEC, or Board could proceed in processing the request for a waiver without verifying the facts of the matter from third party sources.  If the medical staff leaders or hospital failed to conduct this verification, how could they later justify such inaction (for example, in a court case brought by a patient or staff member who alleged to have been harmed by the physician’s conduct)?  Merely taking the physician’s word for it seems especially unreasonable in light of the fact that his original explanation deflected blame.

So, who is right in this situation – the Chief of Staff and CMO (who want to request written documentation) or the Chair of the Credentials Committee (who wants to talk with the individual requesting the waiver)?  In the end, the answer is that both of them are right in some ways.  It is the Chair of the Credentials Committee who ultimately decides whether the matter gets placed on the Credentials Committee’s agenda and, if so, the information that is gathered in advance of the meeting to assist the Credentials Committee as it talks with the applicant.  But, the committee will not be able to do its job properly without obtaining substantial information to corroborate the physician’s story – and so the Chair would be wise to take the advice of the Chief of Staff and CMO and gather the relevant documents from the individual prior to the Credentials Committee meeting.