April 25, 2024

We caught wind of the fact that one of our surgeons was cited for boating under the influence (or “BUI” – yes, this is a thing in our state) last weekend.  Does our Medical Staff leadership need to take any action, or do we only need to act if we’ve observed problems in the hospital?

A BUI or (more commonly) a DUI may reflect a momentary lapse in judgment or be the sign of a more significant problem.  Given this uncertainty and the potential risks to patients, we think it makes sense to speak with the individual about the BUI/DUI, gather any additional information that may be relevant, and decide if any further action is needed.  This approach should give you the information you need to make sure patients are kept safe.  It will also help you to determine if any steps should be taken in regard to your Medical Staff colleague.

Ideally, you have processes in place through your Medical Staff Bylaws and policies to help your physician leaders navigate these issues in a supportive, non-punitive manner.  If you do not, a practitioner health policy should be on your Medical Staff leadership’s “to do” list for this year, as impairment of all kinds (substance abuse, mental and physical health, disease, etc.) can occur at any time.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

March 21, 2024

We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital.  We think that information is relevant to her request for appointment at our hospital because it involves actions on appointment and privileges.  Can we still ask for the information?  Should we ask for a letter from her lawyer?  Should the application be held incomplete?

Yes! Credentialers have a legal duty to review all relevant information that has any bearing on the qualifications of an 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 related policies) 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.

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

March 7, 2024

A physician was invited to attend a collegial counseling meeting with the Chief of Staff and CMO, to discuss a recent case where his management of a patient’s care had been called into question.  The physician came to the meeting, but once he learned what we were going to talk about, he refused to proceed unless he could record the meeting on his cell phone.  He said that it was his intention to fully comply with the review, but that he’d been treated unprofessionally at similar, previous meetings and felt that he needed to take steps to protect himself.  What’s the right response to this?

I’m glad to hear that the physician you are dealing with intends to fully comply with your review process.  That’s a good starting point and may give you room to salvage this process, even though you have experienced an initial setback.  A few tips to consider:

First, it is a good idea to inform a practitioner about the general nature of the issue(s) that will be discussed at a collegial counseling session before the meeting.  In other words, inform the practitioner of the concern in the invitation to the meeting.  In some cases, it may even make sense to inform the physician of the concern and ask for specific information in writing.  This approach gives the practitioner a chance to learn about the concerns, work through initial feelings of surprise and defensiveness, gather thoughts, refresh memories, and prepare a thoughtful response.  And all of those things can set you up for a better (and more effective, in the long run) review process.  Even if you don’t intend to ask for the practitioner’s written comments, letting the practitioner know about the leadership’s concerns prior to a meeting almost always makes sense – so that they can arrive at the meeting fully prepared to discuss the matter at hand.  When would you not give advance notice of your concerns?  It can make sense to withhold that information if the leadership wants to see the practitioner’s reaction when informed about the matter under review (and use that observation to help weigh the practitioner’s credibility).  Also, if the practitioner has a long history of retaliatory behavior – or retaliation is a significant concern for some other reason – you may wish to withhold information about the nature of the matter under review until you get to the meeting itself.  That way, the leadership can give an in-person reminder to the practitioner about the importance of avoiding retaliatory behavior (and even have the practitioner sign an anti-retaliation agreement, if that is deemed necessary).

Even with advance notice of the issues of concern, some practitioners are going to be uncomfortable with the peer review process (after all, if you’ve never been in a leadership position, the process likely feels very foreign, and no one likes to receive criticism).  So, how can you deescalate a situation where the physician feels the need to record the process to protect his rights?  Consider stating in the notice/invitation who will be present at the meeting.  In other words, if the practitioner is being asked to meet with just the Chief of Staff and CMO, say so in the invitation.  And if they are acting on behalf of a committee (e.g., a Leadership Council or MEC), state that as well.  If the committee is one charged with implementing the Medical Staff’s collegial, progressive steps of peer review – and does not manage disciplinary matters – consider stating that as well.  That way, the physician knows early on that he is meeting with a committee for a collegial discussion that is not intended to result in any disciplinary recommendation or action.

Make sure that your Medical Staff Bylaws (or related Medical Staff governance documents/policies) include provisions stating that attorneys are not permitted to be present at any meetings between hospital/medical staff leaders and practitioners, nor are any recordings of such meetings permitted to be made (instead, legal counsel and recordings are permitted only during medical staff hearings and appeals).  Consider informing practitioners of the rules against lawyers/recordings in the invitation to meetings.  Doing so can prevent the physician from spending the time and money to arrange to have a lawyer present, only to find that you have no intention of letting the person into the room.  And, if you have communicated your “no recording” rule to the practitioner prior to the meeting, you won’t have to feel so awkward if you feel that you must ask for mobile phones and/or other recording devices to be left outside the room (to prevent surreptitious recording).  Nor will you have to feel bad canceling the meeting if the physician refuses to proceed without making a recording (or having a lawyer present).

Finally, while the above steps are likely to help avoid misunderstandings and disagreements about the procedures that will be followed, it is important that leaders have enforcement tools they can call upon if necessary.  So, your Medical Staff Bylaws (or related Medical Staff governance documents/policies) should specify that if the physician refuses to attend and participate in the meeting without making a recording, then this will constitute his refusal to attend a mandatory meeting.  Your Bylaws should go on to state that the failure to attend a mandatory meeting will result in the automatic/administrative relinquishment of medical staff membership and all clinical privileges until such time as the practitioner attends a rescheduled meeting.  We would suggest setting a time limit for compliance – for example, by stating that if the practitioner has not resolved the automatic/administrative relinquishment (by attending the meeting) within 30 days, that will be deemed to constitute his automatic resignation of medical staff membership and privileges (meaning that any future request to practice at the hospital would not occur via reinstatement from automatic/administrative relinquishment but would, instead, require an application for initial appointment).  If this all seems like “a big to do” over not attending a meeting, know that the intention of this sort of Bylaws language is to never have to invoke it.  It is reasonable for medical staff leaders to expect that when they volunteer to take on leadership roles (often without any pay) and agree to spend their free time furthering patient safety, quality, and standards of professionalism in the hospital, they have every right to expect that their colleagues will meet them half-way.  And that includes attending meetings when requested and given adequate notice – and also complying with the rules that have been established by the medical staff to promote an informal, peer-led review process.  So, the great hope is that the automatic/administrative relinquishment language can be used, if necessary, to remind practitioners of their obligations to be involved in the review process (in hopes that leaders never have to actually enforce it).

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

February 1, 2024

Recently, we have had several physicians on our medical staff refuse to consult on a case because the patient was covered by Medicaid.  The patient had been admitted to the hospital, so we knew it wasn’t an EMTALA issue, but they still needed to be seen by a specialist.  Have you seen this at other hospitals, and do you have any suggestions on how to handle this?

Perhaps not surprisingly, this issue has come up before.  In an effort to address it, we recommend including language in your Medical Staff Governance Documents to make it clear that, not only do physicians have an obligation to see all patients in the ED, but they also have an obligation to respond to requests for consult (regardless of the patient’s payor status) when they are on call.

For instance, you might spell out in the Bylaws that Active Staff members have a responsibility to serve on the ED on-call schedule, and to “accept inpatient consultations, when on call for the ED.”  Similar language could be added to the Bylaws with respect to other staff categories.

Additionally, the threshold criteria for appointment and clinical privileges could require individuals to “agree to fulfill all responsibilities regarding inpatients, including responding to requests for consult when serving on the ED on‑call schedule.”  The basic responsibilities and requirements of appointment should also include an agreement “to provide emergency call coverage, consultations, and care for unassigned patients.”  This language will help ensure appropriate coverage not only for the ED but also for inpatients who require specialty consultations.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

November 30, 2023

Our hospital is part of a regional system, and while there had been some low-level discussions about whether we may want to have a unified medical staff, the consensus was that we aren’t there yet – however, there is a strong desire for our medical staff processes to become more integrated even if unification isn’t our ultimate outcome.  Are there options short of formally becoming one unified medical staff?

Absolutely!  While one of the main objectives of medical staff unification is consistency in core processes such as credentialing, privileging and peer review – with the goal towards promoting a single standard of care and reducing the administrative burden for the medical staffs and their leaders – many of these benefits can be obtained even in the absence of a unified medical staff.

A good first step is having similar (or identical) policies for credentialing, privileging and peer review at each system hospital that use the same eligibility criteria for appointment and privileges and the same process for evaluating applications among similar types of hospitals.  The same is true for policies governing clinical peer review, professionalism and health.  Consistent bylaws, policies and procedures across the system help the medical staff leaders to do their jobs, and are also helpful for members of the medical staffs who may practice at more than one system hospital to know what the rules are.

Even if a system has the same process for credentialing, privileging and peer review and has adopted the same standards for these activities, there remains the potential for different outcomes when different committees are making decisions.  Steps that the system and its medical staffs can take to address this concern – short of unification – include things such as:

  • Utilizing a central Credentials Verification Office to ensure each medical staff gets the same information about applicants;
  • Utilizing a system (or regional) Credentials Committee, which includes representation from all relevant hospitals, to avoid inconsistent recommendations being made by individual Credentials Committees on practitioners who are applying to more than one system hospital. The same goal can be accomplished in the peer review process by utilizing a system Peer Review Committee – a process that can be even more helpful when system hospitals include much smaller facilities that may have fewer individuals able to serve on such committees; and
  • Incorporating provisions into the medical staff bylaws/credentials policies for each system hospital which state that certain types of significant actions that directly implicate a practitioner’s qualifications to practice – such as performance improvement plans, precautionary suspensions, automatic relinquishments and final actions by the board – become effective immediately at each system hospital where the individual practices, unless the automatic action is waived by the “receiving” hospital’s MEC and the Board.

While these steps don’t achieve the same level of consistency that a unified medical staff would, they are definite steps along the “continuum of integration” that most systems are exploring and implementing.  Also, as the medical staff sees these integration steps in action, they can also help to quell the concerns that are sometimes voiced about possible unification and can be good first steps towards that goal.

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

August 31, 2023

Can a physician assistant or nurse practitioner sign off on an EMTALA transfer certification?

The EMTALA regulations at 42 CFR §489.24(e)(1)(ii) allow a “qualified medical person” such as an N.P. or P.A. to sign the transfer certification if a physician is not physically present in the emergency department at the time an individual is transferred.  The regulation reads as follows:

(B)       A physician (within the meaning of Section 1861(r)(1) of the Act) has signed a certification that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual or, in the case of a woman in labor, to the woman or the unborn child, from being transferred.  The certification must contain a summary of the risks and benefits upon which it is based; or

(C)       If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (e)(1)(ii)(B) of this section after a physician (as defined in Section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification.  The certification must contain a summary of the risks and benefits upon which it is based.

Therefore, while an N.P. or P.A. can sign an EMTALA transfer certification if they have been categorically designated as a “qualified medical person” in the medical staff bylaws, rules and regulations, a physician needs to countersign it.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

June 29, 2023

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?

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.

June 8, 2023

An independent member of our Medical Staff has a long history of unprofessional conduct.  Our Leadership Council addressed various complaints using progressive steps under the Professionalism Policy, such as educational letters and collegial meetings.  We even tried sending the physician to an on-site educational course on behavior with no success.  Before we refer him to the Medical Executive Committee for its review under the Bylaws, are there any other options we could try?

Yes.  A “personal code of conduct” might be successful where other efforts have failed.  A personal code of conduct outlines specific expectations for behavior and, more importantly, specific consequences for failing to meet those expectations.

With respect to expectations, a personal code of conduct may simply require compliance with the standards for behavior set forth in the Professionalism Policy.  (To assist with enforcement of the personal code of conduct, it’s very helpful if the Professionalism Policy includes specific examples of inappropriate behavior.)  Additional expectations might include periodic mentoring meetings with Medical Staff leaders, 360 reviews, or additional training.

The personal code of conduct could then describe the process that will be followed to review the facts if an additional concern is raised about the physician’s behavior.  This fact-finding process may include steps in addition to those set forth in the Professionalism Policy.

The personal code of conduct could then outline the consequences if the Leadership Council determines that there has been a “formal violation.”  The Leadership Council has the flexibility to define these consequences in any reasonable manner.  For example, the first confirmed violation could result in a final letter of warning, the second could result in the physician not exercising his or her clinical privileges for five or 10 days, and the third could result in a referral to the Medical Executive Committee for a formal investigation under the Medical Staff Bylaws.  The personal code of conduct could be indefinite or have a fixed term, and the number of formal violations could be re-set to zero if the physician goes “x” months/years without a violation.

It’s important to include other language in the personal code of conduct, such as a statement that truly egregious behavior can be referred immediately to the Medical Executive Committee.

In our experience, two formal violations are not common and three formal violations are very rare.  As long as the Leadership Council is willing to enforce personal codes of conduct, they can be an effective tool for physician leaders who are attempting to deal with long-term inappropriate behavior.

If you have a quick question about this, e-mail Phil Zarone at PZarone@hortyspringer.com.

March 30, 2023

We’re in the process of reviewing our Medical Staff Bylaws, so we need to get the Bylaws Committee up and running.  The Bylaws state that the Bylaws Committee will be chaired by the Vice President of the Medical Staff, but the Vice President resigned a few months ago.  Should the President of the Medical Staff just appoint another Bylaws Committee chair?  Or should it be the MEC that appoints the chair?  Or should the Bylaws Committee just vote on a new chair?

The Medical Staff Bylaws should have the answer.  In the article in the Bylaws that deals with officers, their eligibility criteria, duties and election, there should be a section regarding what happens when there are vacancies.  Vacancies can be filled based on what works best for a particular hospital.  Usually, if there is a vacancy in the office of President of the Medical Staff, the Vice President is elevated to that role.  If there is a vacancy in the office of Vice President, Secretary or Treasurer, the Medical Executive Committee will usually appoint an individual to fill the office for the remainder of the term or until a special election can be held, whichever is decided by the Medical Executive Committee.  In this case, let’s assume that the MEC appoints the individual, in which case, the VP can take the reins of the Bylaws Committee.

January 5, 2023

There is a lot of confusion amongst members of our Medical Staff about the relationship between Medical Staff appointment and clinical privileges.  For example, it is common to hear individuals refer to “Active Staff Privileges.” How can we help educate our Medical Staff on the difference between Medical Staff appointment and clinical privileges?

Many people confuse or intertwine these two concepts, even though they are separate and distinct.  As such, it is important that your bylaws recognize appointment and clinical privileges as distinct concepts.

Appointment relates to an individual’s membership on the Medical Staff (i.e., that they are recognized as being “on the team”).  With this membership comes certain rights and responsibilities, like voting, serving on committees, etc.

Clinical privileges relate solely to the patient care services an individual has been authorized to provide at the hospital.  They do not relate to an individual’s involvement in Medical Staff affairs and, in turn, are not tied to the individual’s staff category.  In fact, an individual may be a member of the Medical Staff but have no privileges (e.g., “Community Staff”) or could have clinical privileges but no membership on the Medical Staff (e.g., telemedicine providers).

Ensuring your Medical Staff Bylaws documents make this distinction will hopefully help to educate your Medical Staff on this issue.