June 1, 2023

Our hospital recently employed a small group of urologists.  The hospital wanted more control over the group’s on-site hours and scheduling.  While three of the urologists are great culture fits, there was concern about one group member whose behavior with staff has raised eyebrows in the past, but no action was ever taken.  There was an incident last week in the cafeteria where this troublesome urologist allegedly yelled and confronted one of our hospital administrators.  The administrator wants to deescalate the situation and hasn’t filed a complaint, but how should we as a medical staff handle the matter and should we work with the hospital as the urologist’s employer?

This is an excellent question and the administrator’s response is completely understandable, but the best practice in this situation is to follow your Medical Staff Professionalism Policy.  If medical staff leaders become aware that a practitioner’s behavior in the hospital may be inconsistent with the expectations for medical staff members, the leadership can and should review that behavior under the Professionalism Policy.  The review by the medical staff leadership is not dependent on the administrator filing a complaint.

The Professionalism Policy should require that appropriate fact-finding take place and that the urologist has an opportunity to provide input.  This fact-finding and input will allow the medical staff leaders to understand the context in which the dispute occurred.  Review of the urologist’s behavior should not be in isolation, and if the previous issues alluded to in your question have been recorded, medical staff leadership should be using those to provide context to the fact-finding.  The question for your medical staff leadership would be whether there’s a behavioral trend that needs to be addressed via collegial intervention, a performance improvement plan, or other means.

As for working with the urologist’s employer, the hospital, we highly recommend doing so.  While the medical staff’s final action and the employer’s final action regarding the confrontation are independent of each other, the fact-finding process of each can be beneficial to the other.  Within proper channels, the sharing of information can allow both the employer and your medical staff to make a more informed disposition of the urologist’s confrontational behavior.

If you have a quick question about this, e-mail John Wieczorek at jwieczorek@hortyspringer.com.


June 24, 2021

QUESTION:   “Since the new Stark regulations came out late last year, can we still require our employed physicians to refer patients to our hospital or other providers in our health system?”

ANSWER:       Yes.  The amendment to the Stark regulations set forth a separate section on “directed referrals” at 42 CFR §411.354(d)(4) which permits physician compensation in employment relationships, personal service arrangements and managed care contracts to be conditioned on the physician’s referral of patients to a particular provider, practitioner or supplier as long as the physician is paid fair market value, agreement is in writing and subject to the following exceptions:  (i) the patient expresses a preference for a different provider, practitioner or supplier, (ii) the patient’s insurer determines the provider, practitioner or supplier, or (iii) the  referral is not in the patient’s best medical interests in the Physician’s judgment.  The required referrals must relate solely to the services covered by the contract in question.

The regulations go on to say that neither the existence of the arrangement or the amount of compensation can be contingent on the directed referrals.  However, an established percentage or ratio of the physician’s referrals to the designated providers can be required.  In other words, a directed referral provision in an employed physician’s contact could not provide that the physician’s compensation would be cut if the physician does not refer patients to the hospital, but it could require that a certain percentage of the physician’s patients who require hospitalization are sent to the hospital – subject always to the three exceptions.

But beware!  Although the Stark regulation says that personal services arrangements can contain a directed referral requirement, there is no corresponding directed referral language in the Anti-kickback safe harbors.  The only protection there would be the bona fide employment exception, so requiring independent contractors to refer to the hospital would be risky.

Want to know more about this or other provisions in the new Stark regulations? Contact Dan Mulholland or Henry Casale or call 412-687-7677 to schedule an appointment.

May 23, 2019

QUESTION:        We have a group practice that is affiliated with our health system.  The group practice employs physicians and advanced practice clinicians.  Two months ago, one of the employed physicians was given notice that the group was not going to renew his contract and his employment would expire in 90 days.  The contract provides that when his employment expires, his appointment and privileges at all health system hospitals expires too.

Last night, the Medical Executive Committee at one of our system hospitals started an investigation into complaints about this physician’s behavior.  If the investigation is not completed by the time his contract expires are we required to report this to the National Practitioner Data Bank as a resignation while under an investigation?
ANSWER:            The answer to this question is no.  You would not have to file a report with the Data Bank because the expiration of appointment and privileges was triggered by an expiration in his employment contract.   There is helpful guidance on this issue in the NPDB Guidebook.  In a related scenario, outlined in the Q&A: Reporting Clinical Privileges Actions section of the Guidebook, it noted that a report would not have to be submitted: “The termination was not a result of a professional review action and, therefore, was not reportable. It does not matter that the employment termination, which was a result of the hospital’s employment termination process, automatically resulted in the end of the practitioner’s clinical privileges.”

While your situation is a little different, the same principle should apply.  The physician did not resign during, or in exchange for not conducting, an investigation.  Rather, the physician’s appointment and privileges automatically expired as a result of the contract expiration.  The controlling act was the expiration of the physician’s contract which affected his appointment and privileges.

As a practical aside, we recommend that serious consideration be given to when an investigation should be commenced.  The Medical Executive Committee should only commence an investigation when it has exhausted collegial, progressive steps or if there are extreme circumstances, such as a pending precautionary suspension.

If the subject physician is employed by a system-affiliated group, there is nothing wrong with considering the physician’s employment status prior to the Medical Executive Committee commencing a formal investigation.  Generally, in these situations, when a physician’s employment is set to expire or be terminated, there would be no need for a formal investigation.  The problem behavior should not be ignored but less formal steps, such as the implementation of a performance improvement plan for behavior, could be taken in the interim to facilitate the smooth and orderly operation of the hospital.  A formal investigation is not likely the best use of your time or resources.

May 17, 2018

QUESTION:        We are analyzing the fair market value of what we pay our employed physicians.  How should we classify physicians who practice in more than one specialty?

ANSWER:            There is no definitive rule as to how a physician’s specialty should be classified for compensation or compensation analysis purposes.  For example, the MGMA Physician Compensation Survey directs survey respondents to list their specialty as the area where they spend 50% or more time.  Others may classify physicians into specific specialties based on their training or the specialty that the physicians hold themselves out in.

The Board certification of each physician is another criterion that can be used. In the end, specialty classification for compensation analysis purposes depends on the criteria used by those conducting the analysis.  The key is consistency.

As the Office of Inspector General stated in its Supplemental Compliance Guidance for Hospitals, that when analyzing physician compensation for compliance with the Stark law,

“hospitals should have appropriate processes for making and documenting reasonable, consistent, and objective determinations of fair market value.”
70 Fed. Reg. 4863 (Jan. 31, 2005). (Emphasis added.)

October 15, 2015

QUESTION:        It’s the flu season, again, and we know that we can require employed physicians to have a flu shot, but what about physicians who aren’t employed? What’s the easiest way to do this?

ANSWER:           Yes, a hospital can require non-employed physicians to get a flu shot. The easiest way to implement the policy for non-employed physicians is to include it as part of the eligibility criteria in the medical staff bylaws or credentials policy. The criteria could require every applicant and medical staff member to provide evidence of an annual flu shot. Of course, with every rule, there are exceptions. For example, a physician may have a medical condition that prevents him/her from receiving a flu shot. In those cases, the physician could be required to wear a mask at all times in the hospital.