January 23, 2020

QUESTION:  Our hospital is part of a health system. Is there any way we can take advantage of our size and resources to improve our peer review process?

ANSWER:  Yes! Health systems have many options for improving their professional practice evaluation (“PPE”)/peer review processes that aren’t available to individual hospitals. Here are a few examples.

1.  System PPEC

Health systems can create a system Professional Practice Evaluation Committee (“System PPEC”) with representatives from each hospital in the system. The System PPEC could:

(a) serve as a resource for the PPECs of individual system hospitals;

(b) compile triggers for PPE/peer review, OPPE data indicators, and criteria for Informational Letters, and share those with local PPECs for their approval; and

(c) compile and disseminate best practices and lessons learned from each system hospital.

The System PPEC would assist local PPECs, but the local PPEC would remain responsible for all decisions regarding a review.

2.  System Specialty Review Committees

System Specialty Review Committees comprised of specialists from system hospitals could be appointed to review cases upon the request of a system hospital. The PPEC at the entity requesting the review would retain full responsibility for deciding what to do with each case. The System Specialty Review Committee would simply serve as another source of expertise for that PPEC.

System Specialty Review Committees could also monitor aggregate data related to system practitioners and facilities in their specialties and disseminate best practices and lessons learned through the review process.

3.  PPE/Peer Review Clearinghouse Policy

Systems could develop a policy by which central administrative personnel serve as a “clearinghouse” for case review services. System hospitals would notify the clearinghouse of practitioners who have agreed to provide case review services for other system hospitals. A hospital that requires a case review would contact the clearinghouse, which would identify a practitioner who has agreed to provide such services.

4.  PPE/Peer Review Services Agreement Between Facilities

Under this option, one system hospital (the “PPE Services Provider”) could provide PPE/peer review services to another system hospital (the “Requesting Hospital”). The PPE Services Provider and the Requesting Hospital would execute an agreement to describe their respective obligations. The services to be provided by the PPE Services Provider might include case review services, regular participation in meetings of a PPE/peer review committee, and assistance with the FPPE process to confirm practitioner competence.

5.  PPE/Peer Review Services Agreement For Individual Reviewer

Under this option, an individual practitioner who has privileges at one system entity would
provide PPE/peer review services directly to another system entity. Essentially, the practitioner would be serving as an external reviewer for the facility requesting services. The system could develop a template agreement by which these services are provided.

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 11, 2017

QUESTION:        Our hospital is about to sign a letter of intent to merge with a regional health system.  The lawyers want us to also sign a “joint defense agreement.”  What is that and does it make sense to do so?

ANSWER:            A joint defense agreement or “JDA” memorializes the intention and understanding of parties to a prospective merger or acquisition regarding:  (1) particular communications that have been made between them, (2) the contents of such communications, and (3) any other work product containing or referring to such communications shall remain confidential and protected from disclosure to any third party.  The JDA also permits the parties and their respective attorneys to share and exchange information among themselves and with any retained experts or consultants without waiving any privilege that may apply to that information.  It is usually a good idea to have a JDA in any merger transaction.  The courts have recognized that the joint defense and common interest privileges will protect privileged communications between the parties from disclosure.  Given the recent aggressive posture of the FTC and state attorney generals who have challenged numerous health care mergers, a JDA is not only a good idea, it is a critical tool for self-preservation.