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.

 

November 12, 2020

QUESTION:        The medical staff recently began an investigation of one of our employed physicians.  We have decided to exercise our right to terminate the physician without cause which, per the terms of his employment agreement, will result in the automatic expiration of his medical staff appointment.  Is this reportable?  Is there anything else we should consider?

 

ANSWER:          This situation is not reportable to the Data Bank.  How do we know – the Data Bank told us.  We also have some other recommendations that you should consider.

First, the termination of the Physician’s appointment due to the terms of an agreement is not reportable.  That is true even if the physician is under medical staff investigation at the time of the termination.

When asked about a similar situation, we received the following response and analysis from the Data Bank:

Response:

Regulations and Policies:

Under 45 CFR §60.12(a)(i), “[e]ach health care entity must report to the NPDB…[a]ny professional review action that adversely affects the clinical privileges of a physician or dentist for a period longer than 30 days.”

Under 45 CFR §60.3, a professional review action is “…an action or recommendation of a health care entity; 1) taken in the course of professional review activity; 2) based on the professional competence or professional conduct of an individual health care practitioner which affects or could affect adversely the health or welfare of a patient or patients; and 3) which adversely affects or may adversely affect the clinical privileges or membership in a professional society of the health care practitioner…” Additionally, a professional review activity under 45 CFR §60.3 is “an activity of a health care entity with respect to an individual health care practitioner…[t]o change or modify such privileges.” According to the NPDB Guidebook, the reporting entity generally decides when a professional review has occurred.

According to the NPDB Guidebook, “[a]dministrative actions that do not involve a professional review action should not be reported to the NPDB.”2 This point is illustrated in Q&A#2.3 In Q&A#2, the hospital used its employment termination procedures, not a professional review process, to revoke the practitioner’s clinical privileges. Since the hospital did not take the action through the professional review process, the revocation of the clinical privileges was not reportable.

Analysis:

In this scenario, the facility is terminating its employment arrangement with a physician due to the physician’s past non-compliance. The employment agreement requires that the physician relinquish his or her privileges if requested by the facility. Should the facility report the relinquishment of the privileges? Based on these facts, and similar to Q&A#2, the facility in this scenario is using its employment termination procedures to remove the practitioner’s privileges. Since it is using its employment termination procedures and not its professional review processes to remove the privileges, the relinquishment of the physician’s privileges would not be a reportable action.

(Emphasis added.)

We also have some practical advice for employers everywhere.  When preparing an employment agreement, give some thought to the length of the notice period to terminate the agreement without cause.  This period should be long enough to provide time to find a replacement, but not so long that it will create a financial strain on the employer’s finances if it decides to provide the physician with pay in lieu of working out the notice period (which is common).

While the decision to terminate the employment agreement must be made solely by the employer, the employer should make the medical staff committee involved in the investigation aware of its decision.  Also remind the Committee members that if they receive a request for a recommendation about this physician, they should inform Hospital management of the request.  The Hospital’s medical staff office should then inform the physician requesting the recommendation that no information will be provided without the physician executing a release that is specific to your hospital.

 

August 29, 2019

QUESTION:        Our Credentials Policy says that applicants for Medical Staff appointment and clinical privileges will be interviewed by the department chair, the Credentials Committee, the Medical Executive Committee, the Chief of Staff, the Chief Medical Officer or the Chief Executive Officer.  Is there really any benefit to performing an interview as a part of the credentialing process or should we just eliminate this language from our Policy?

 

ANSWER:            There certainly is some debate about the effectiveness of interviews in predicting future job performance.  However, much of the research indicates that unstructured job interviews are ineffective.  On the other hand, structured interviews are one of the most effective selection techniques.

In structured interviews, applicants are asked to respond to the same set of questions and their answers are rated on a standard scale.  Sounds complicated, right?  Not necessarily.  We understand that the development of a complex, standard scale for rating would involve the participation of experts; however, a common set of straightforward questions that are structured to elicit information about past behavior (as opposed to questions designed to elicit information about how an applicant would respond in a hypothetical situation) and that are relevant to Medical Staff appointment, measured against a simple rating scale, can be useful.  This task shouldn’t be outside of the Credentials Committee’s wheelhouse.

There is always the risk of variability among interviewers, but this could be minimized by having at least two individuals conducting the interview, using the same scale but rating separately, and then comparing notes after the interview to reduce variability in rating.

Like we mentioned earlier, questions about past behavior are key because there is less opportunity for an applicant to provide a response that is not capable of being verified.  Interview questions can also elicit information about whether the applicant’s views and practice style are consistent with the medical staff and hospital’s culture.

For example:

Q:        What attracts you to this hospital/why are you interested in working here?

Q:        Tell us about a time in which a case of yours was reviewed through the peer review process and how you participated/responded.

Q:        Describe a situation in which you were asked to do something beyond your established responsibilities (e.g., service on medical staff committee, fill in a call coverage gap) and tell us how you responded.

Q:        Tell me about a time when you had a conflict with another physician and how you dealt with that conflict.

Q:        What role do you see the nursing staff playing in patient care in the hospital?

If interviewing every applicant simply isn’t an option because of time constraints, interviews should, at the very least, be conducted when there are questions or concerns about the applicant’s qualifications, experience, education, training, or other aspects of his or her practice that have been raised at any time during the review of the application.  Thus, rather than having a strict requirement that all applicants will be interviewed, you can adjust your Policy language to instruct that applicants may be interviewed.

June 14, 2018

QUESTION:        We have an applicant for medical staff appointment who disclosed on her application that she was under probation for a time during her residency.  Despite our requests, she has refused to provide any additional information related to this matter.  She also has declined to authorize the site of her residency to release any information to us.

We have language in our bylaws 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 enforce this provision?

 

ANSWER:            Most definitely.  Holding an application as “incomplete” is one of the best tools you have as a credentialer.  And when it comes to enforcing such a provision, the case law is on your side.

Numerous courts have held that a hospital can refuse to process an application that is incomplete.  For example, in a case with facts very similar to the situation described above, an Illinois appeals court 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, in a case where a physician up for reappointment refused to release information on pending malpractice claims, an appeals court in Tennessee ruled in favor of the hospital, finding that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

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.

May 4, 2017

QUESTION:        We have just received an application for Medical Staff appointment from a physician who has a history of alcohol abuse that caused him to lose his license.  While his license has been reinstated, how should we deal with the fact that at one point in time he lost his license?

ANSWER:            First check your Medical Staff Bylaws.  Many bylaws have threshold eligibility criteria that not only require that an applicant possess a current, unrestricted license, but also require that an applicant have never had his or her license to practice revoked or suspended by any state licensing agency.  Such an eligibility criterion would render this physician ineligible to apply for appointment.

However, that does not end the inquiry.  Most bylaws also have a process that may be followed to obtain a waiver of the threshold eligibility criteria.  If the physician wants to attempt to qualify for a waiver, he or she should be required to request a waiver in writing and provide the MEC with such information as the MEC may require to determine whether granting a waiver is in the best interest of the hospital and the community it serves.

The MEC should be reasonable and keep in mind that past alcohol or drug use is protected by the ADA.  However, that does not alter the fact that the burden remains on the applicant to satisfy the hospital’s eligibility criteria and, if requesting a waiver, to establish a reasonable basis for the requested waiver.  Whether a waiver is granted is discretionary, the burden remains on the applicant, and an application is incomplete and should not be processed unless the waiver has been granted.

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.

November 10, 2016

QUESTION:        During a recent on-site presentation, an attendee asked whether a hospital could impose requirements on physicians for medical staff appointment and clinical privileges that are more rigorous than the state requirements for licensing.

ANSWER:           The answer to this question is a resounding “yes.”  In fact, not only can a hospital do this, it most definitely should do this.  The requirements for licensing by a state board of medicine often establish a floor from which the hospital should begin in establishing its criteria for medical staff appointment and clinical privileges.  Medical staff policies should set the bar higher when it comes to threshold eligibility criteria so that you are only attracting, and granting medical staff membership to, highly qualified individuals.

For example, Florida law permits physicians who meet certain criteria to practice without medical malpractice coverage.  To be eligible for this exemption, some of the criteria a physician must meet include:

  • The physician has held an active license to practice in Florida or another state or some combination thereof for more than 15 years.
  • The physician maintains a part-time practice of no more than 1,000 patient contact hours per year.
  • The physician had no more than two claims for medical malpractice resulting in an indemnity exceeding $25,000 within the previous five-year period.

Under the Florida law, the physician must also post a sign in his or her office reception area which provides as follows:  “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice.  However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law.  YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This notice is provided pursuant to Florida law.”

Even though the law permits part-time physicians to practice without medical malpractice insurance if the criteria are met, nothing prohibits the hospital from requiring a certain level of malpractice insurance for any physician who is appointed to the medical staff and provides clinical care to patients in the hospital.  Indeed, it would be imprudent not to require such coverage because it would expose the hospital to more risk and could result in a patient injured by proven negligence to not be compensated for his or her injuries.