April 5, 2018

QUESTION:        In regard to leaves of absence, our Medical Staff Credentials Policy says that practitioners’ clinical privileges will expire at the end of their natural term.  Is that right?  Can’t a practitioner be reappointed during the LOA?  I couldn’t find anything specifically addressing that anywhere, but we have a loyal and long-standing member of the Medical Staff who is out on leave and who is up for reappointment.  Are we supposed to kick him off of the staff and make him apply as an initial applicant after his medical leave is resolved?


ANSWER:            It is our advice that hospitals not reappoint members of the Medical Staff, or renew clinical privileges for a practitioner, while they are out on leave.  The reason is that when they are on leave, there is something about their situation that prevents them from practicing or fulfilling the duties of Medical Staff appointment and, in turn, hospital and Medical Staff leaders would need to learn about that situation and resolve any concerns (for example, the health status of the individual) prior to making any decision about their appointment and privileges.  For this reason, it makes sense not to process any reappointments while the individual is away.

We recommend that your Bylaws or Credentials Policy language regarding leaves of absence state that if membership or privileges expire while an individual is on leave, the individual may later submit an application for “renewal,” rather than being required to apply as an initial applicant at the time of reinstatement:

If a practitioner’s current membership and/or clinical privileges are due to expire during the leave, they will expire at the end of their natural term.  The practitioner will be required to submit an application for reappointment and/or renewal of clinical privileges as part of the reinstatement process.

Note that individuals whose membership and/or privileges expire while on leave are uniquely able to apply for renewal, rather than apply as initial applicants, despite having a lapse in appointment/privileges.  The distinction can, in some situations, be important (for example, for practitioners who have been grandfathered from meeting current board certification requirements, instead having to satisfy only those requirements in place at the time of their initial appointment).

As part of the renewal application (which would be processed at the time the practitioner applies for reinstatement), the individual should be asked to explain any outstanding concerns that arose in conjunction with the leave (e.g., health status, lapse of currency).

March 15, 2018

QUESTION:        At one of our recent physician leadership courses, a registrant said that they were struggling with an applicant who refused to answer one of the questions on their application form, telling them that her lawyer told her it could violate a settlement agreement that she has with another hospital.  Their Medical Staff leaders think that information is relevant to her request for appointment and want to know if they can still ask for the information and hold the application 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 Credentials Policy 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, 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 made an application. The physician argued that he received legal advice that signing the release could compromise his lawsuit against the 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.

January 11, 2018

QUESTION:        Our Medical Staff Services Department is reviewing an application for a physician who has been recruited by the Medical Center as an employee. The physician does not meet all of the eligibility criteria in the Medical Staff Credentials Policy, but we understand the contract has already been signed.  What should we do?

ANSWER:            Unfortunately, this is an all-too-common problem. “Credentialing 101” says that an application from a candidate who does not satisfy the Medical Staff’s threshold eligibility criteria should never be processed – even in an employment situation.  So, hopefully, the contract contains a provision that states the contract is conditional upon the physician being appointed to the Medical Staff and obtaining clinical privileges in the relevant specialty.

To avoid this situation in the future, organizations should strive for coordination between their Medical Staff Services Department and their recruiters.  This means educating recruiters about the minimum qualifications set forth in the Medical Staff Credentials Policy, as well as giving your recruiters a list of “red flags” that will slow an application up during the credentialing process (e.g., gaps in experience, negative references, etc.)

To make sure your Medical Staff leaders have the knowledge and tools that they need to manage difficult issues like this, please join Barbara Blackmond and Ian Donaldson at The Complete Course for Medical Staff Leaders.

August 10, 2017

QUESTION:        We have recently had two or three applicants who are returning to clinical practice after a gap of two to five years. What kind of policy or practices do you recommend for practitioners who are reentering practice after an extended time off?

ANSWER:            Practitioners may take an extended leave from practice for a variety of reasons, including family obligations, personal health, alternative careers, or retirement. Several resources for physicians returning to practice are available through the AMA and the Federation of State Medical Boards, among others.

From a Medical Staff perspective, one of the eligibility criteria we typically include in our Credentials Policy is that practitioners are not even eligible for privileges unless they can demonstrate clinical activity in their specialty in an acute care hospital setting in the past two years.  Any exception would be considered through the waiver process.

Another option is to adopt a Practitioner Re-Entry Policy that gives the Medical Staff leaders the authority to develop a Re-Entry Plan for any such applicant.  Depending on the circumstances surrounding the practitioner’s absence, such a Re-Entry Plan could include, among other things, a competency evaluation, a refresher course, and/or retraining in order to ensure that the individual’s general and specialty skills are up to date.

To make sure your Medical Staff leaders have the knowledge and tools that they need to manage difficult issues like practitioner re-entry, physician “burnout,” and other tough credentialing, peer review and policy issues, please join Barbara Blackmond and Ian Donaldson this November at The Complete Course for Medical Staff Leaders.

May 18, 2017

QUESTION:        A registrant at our Complete Course for Medical Staff Leaders in New Orleans two weeks ago asked:

Appreciated the suggestion in the case study to hold an application incomplete if there remain questions and concerns, but couldn’t the Credentials Chair or another physician leader suggest that an applicant withdraw the application?

ANSWER:           They could.  However, such a suggestion must be done with care. Suggesting that an applicant withdraw could invite a contention from an applicant’s lawyer that leaders are attempting to talk an applicant out of a “right” to a hearing.  That’s not the case if there has not been a recommendation for “denial,” but dealing with the contention could consume valuable resources.  Instead of appearing to push the applicant to withdraw, it may be better to present the physician with the potential consequences of the options, including withdrawal, appealing a denial recommendation, or allowing the application to remain incomplete.  It is a best practice to have a framework of clear language in the bylaws or credentialing policy (premised on the applicant’s burden), that incomplete applications will not be processed; and any application that remains incomplete after information has been requested, and not fully provided after a stated period of time (30, 45 or 60 days), will be deemed to be withdrawn.  It is easier for someone to simply wait for the expiration of the time period than to have to formally write a letter of withdrawal.  If your documents don’t have that language, you can still use this technique by stating a time period in the letters posing questions and requesting information.  Add additional language to guide future credentialers, next time revisions are considered!

March 30, 2017

QUESTION:        We received word through the grapevine that a Medical Staff member was arrested for driving under the influence of alcohol (“DUI”) last weekend.  Does our Medical Staff leadership need to take any action, or should we only act if we’ve observed problems in the hospital?

ANSWER:            A DUI may be a sign of a significant underlying problem, or it may reflect only a momentary lapse in judgment.  Given this uncertainty and the potential risks to patients and the practitioner, it makes sense to speak with the practitioner about the DUI, gather relevant information, and decide if any additional action is needed.  This approach protects both patients and the practitioner.

Gathering information about the DUI is consistent with the process followed by some state medical boards, which use a trained professional to interview physicians who are arrested for a DUI to determine if an additional assessment or intervention is required.

The hospital’s Credentials Policy and Practitioner Health Policy should help physician leaders to address these issues:

  • The Credentials Policy should make clear that applicants and members of the Medical Staff must notify the Medical Staff Office, the Chief of Staff, or the Chief Medical Officer of any change in information provided on their application form. In fact, the Credentials Policy could specifically state that physician leaders must be notified of any DUI or similar matter.
  • The Practitioner Health Policy should outline a non-punitive, supportive process for carefully obtaining a practitioner’s input, evaluating a potential health issue, and helping the individual resolve the issue.

For more information on how to handle these and other issues, join us May 4-6 in New Orleans (and enjoy Jazz Fest at the same time – responsibly!).

March 23, 2017

QUESTION:        We have an applicant for medical staff appointment who disclosed that he was under probation for a time during his residency. Despite our requests, he has refused to provide any additional information related to this matter. He also has declined to sign an authorization that would allow us to talk freely with his program director.

We have language in our Medical Staff Credentials Policy 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 rely on this provision?

ANSWER:            Most definitely.  When it comes to enforcing such a provision, the law is on your side. Courts from jurisdictions across the country have held that a hospital can refuse to process an application that is incomplete.  For example, an Illinois appeals court, in a case with facts very similar to the situation described above, 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, an appeals court in Tennessee ruled in favor of the hospital in a case where a physician up for reappointment refused to release information on pending malpractice claims.  In that case, the court found that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

Of course, having good language in your Medical Staff documents (and on your application form) that makes it clear that the burden to provide information is on the applicant – and that an incomplete application will not be processed – is key.  Since you stated that you have this language in place, you can feel confident in holding this application as incomplete until the applicant meets his burden of providing the information you need.

March 9, 2017

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

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.

February 16, 2017

QUESTION:        Our Medical Staff Credentials Policy has a detailed list of threshold eligibility criteria.  In the provisions that deal with criminal histories, the policy mentions felonies and misdemeanors that involve “moral turpitude.”  What’s moral turpitude?

ANSWER:            Moral turpitude is a broad term that can be used to refer to a variety of crimes.  Black’s Law Dictionary defines moral turpitude as “conduct that is contrary to justice, honesty, or morality.”  The State Department’s Foreign Affairs Manual explains that the most common elements of moral turpitude are “(1) Fraud; (2) Larceny; and (3) Intent to harm persons or things.”  Blended together, you might say that moral turpitude refers to acts which clearly involve fraud, larceny, or an unjust attempt to cause serious harm to persons or property.  If you have any one of those three ingredients, you’re most likely dealing with an act of moral turpitude.

Be prepared for applicants who try to hide their questionable criminal history by twisting the meaning of “moral turpitude” or understanding it in a very narrow sense.  For example, maybe an applicant has been convicted of crimes relating to the possession of controlled substances.  This person might argue that his conviction didn’t involve moral turpitude, because he didn’t obtain the controlled substances by fraud, didn’t steal them, and didn’t intend to hurt anyone else by using them.

For this reason, keep in mind that “moral turpitude” is not a catch-all term and won’t patch up a set of poorly-drafted threshold eligibility criteria.  However, we do recommend including it in your policies, because it encompasses a wide variety of criminal conduct that could reflect negatively on a person’s suitability for Medical Staff appointment.  As a best practice, consider calling out other specific categories of offenses, such as criminal possession of controlled substances, so that you get a full picture of an applicant’s background.

While we always advise our clients to adopt robust eligibility criteria and to set a high standard for their Medical Staff, we recognize that criminal backgrounds can be a controversial subject and that institutions will have different perspectives on the matter.  The most important thing is to ensure that your policies reflect your values and your goals.