July 30, 2020

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QUESTION:       
We recently received a request, from one of the Physician Assistants in our organization, asking that the Medical Staff Bylaws be amended to allow advanced practice clinicians (Nurse Practitioners, CRNAs, and Physician Assistants) to be members of the Medical Staff and to serve on committees, including the Credentials Committee and the Peer Review Committee.  Can you tell us what you are seeing around the country in these areas?

 

ANSWER:           There has been significant change around the role and responsibilities of advanced practice providers.  We can start with the terms that have been used to describe this group.  In the past, these practitioners were referred to as “physician extenders,” “mid-levels” or “allied health practitioners.”  Now, many organizations use the term “advanced practice professionals” or “advanced practice clinicians.”

Historically, any reference to “physician extenders” or “mid-levels” in the Bylaws was limited to a paragraph or two tucked away at the back of the document.  As the accreditation organizations began to require that these practitioners be credentialed and privileged through the medical staff or related process, many hospitals created parallel policies but still treated allied health practitioners as separate from the Medical Staff.

As advanced practice clinicians have become more integrated into the delivery of care in hospitals and integral to that care, we have seen their roles and responsibilities on the Medical Staff change.  Some Medical Staffs have created an Advanced Practice Clinician Staff that is not a category of the Medical Staff but is included in the Bylaws and addresses the prerogatives and responsibilities of these practitioners.

A small number of Medical Staffs, usually in critical access hospitals, have simply incorporated advanced practice clinicians into their existing Medical Staff categories.  More recently, in Bylaws that we draft, we include an Advanced Practice Clinician Staff as a category of the Medical Staff; however, much like the Courtesy Staff or Consulting Staff, the Advanced Practice Clinician Staff has limited prerogatives and responsibilities.

Another easy step towards inclusion is to allow advanced practice clinicians to be appointed to committees.  This will allow advanced practice clinicians the opportunity to participate in medical staff affairs in a meaningful way and to develop valuable leadership skills.

Since the number of advanced practice clinicians continues to grow, their training continues to evolve,  and their scope of practice continues to expand, creating an Advanced Practice Clinical Committee (staffed by both advanced practice clinicians and physicians) or adding advanced practice clinicians to the Credentials Committee could give your organization a leg up on these challenging issues.

Similarly, since hospitals must evaluate the clinical performance of advanced practice clinicians through the peer review process initially, on an ongoing basis, and when questions are raised, fostering the development of advanced practice clinicians so they can participate in this process makes a lot of sense.  Training advanced practice clinicians to perform case reviews and inviting advanced practice clinicians to serve on the Peer Review Committee are important discussion points.

Some Medical Staffs have decided to include an advanced practice clinician as a member of the Medical Executive Committee (with or without vote).  Identifying the right person to serve in this role is very important and that’s why it may be worth vesting this power in the Chief of Staff or the Medical Executive Committee.

In addition to serving on committees, advanced practice clinicians can be invited to attend department meetings and meetings of the Medical Staff.   In the organizations that we work with, typically, this participation is without the right to vote.

The bottom line is that these are important issues to discuss because they are not going away.  Before you make any changes to your bylaws, however, be sure to check state law.  Some states, like Pennsylvania, limit the Medical Staff to physicians and dentists, unless an exception is granted by the Department of Health.

Additionally, there are some limitations reflected in the CMS Interpretative Guidelines in terms of the Chief of Staff position; this position must be filled by an MD, DO, or, if permitted by State law, “a doctor of dental surgery, dental medicine, or podiatric medicine.”  With respect to the composition of the Medical Executive Committee, the Interpretative Guidelines say that a majority of the members must be MDs or DOs.

March 12, 2020

QUESTION:        We had an applicant who “forgot” to disclose two hospitals where she practiced in the past when she completed her application form.  We found out about one of them through a National Practitioner Data Bank query and the other when we directed her to correct her application form.  She was very apologetic and said it was an accident because her office manager completed the form.  What do we do with this now that we feel like she wasn’t honest? It seems unlikely that she “forgot” an affiliation where they restricted her privileges.

ANSWER:          Misstatements and omissions on application forms can certainly be very serious and the concerns that your medical staff leaders have are justified. The act of completing a medical staff application form is a practitioner’s very first administrative contact with the hospital.  As an administrative function, we recommend having an administrative response when this type of discrepancy is discovered.  That response should not be an invitation to “correct” the application form, because through the use of such language, it implies to the practitioner that there are no concerns raised by their initial completion of the form or that those concerns are fully resolved by their “correcting” the erroneous information.

Rather, we recommend having medical staff bylaws/credentials policy language that clearly states that the hospital will stop processing an application if a misstatement or omission is discovered – and if it is not discovered until after appointment has been granted, that appointment will be automatically relinquished.  The applicant should be notified of the misstatement or omission and given an opportunity to respond, and then there should be an administrative-level review of that response to determine whether or not to move forward.  The same language should be on the application form release that the individual signs upon completing the application form.  Addressing this issue on an administrative level means avoiding words like “rejection” or “termination” of the application or “denying” the application – which is an action that is only ever taken following a comprehensive review of the application and all supporting materials in its entirety.

February 13, 2020

QUESTION:            We are revising our Medical Staff Bylaws and a question has come up about whether we could add a “years of service” exemption that let’s physicians opt-out of their ED call obligations if they have been on the Medical Staff for more than 20 years. Is this okay under EMTALA?

ANSWER:            It is. CMS recognized the practice of giving age or year’s of service based exemptions in the 2003 Preamble to the updated EMTALA Regulations, stating:

“We understand that some hospitals exempt senior medical staff physicians from being on call. This exemption is typically written into the hospital’s medical staff bylaws or the hospital’s rules and regulations, and recognizes a physician’s active years of service (for example, 20 or more years) or age (for example, 60 years of age or older), or a combination of both. We wish to clarify that providing such exemptions to members of hospitals’ medical staff does not necessarily violate EMTALA. On the contrary, we believe that a hospital is responsible for maintaining an on-call list in a manner that best meets the needs of its patients as long as the exemption does not affect patient care adversely. Thus, CMS allows hospitals flexibility in the utilization of their emergency personnel.” (Emphasis added).

Obviously, the highlighted language indicates that while such exemptions are permissible under EMTALA, the exemptions cannot interfere with a hospital’s ability to maintain adequate on-call services.

Therefore, we recommend the MEC approve any request for such an exemption, since allowing an exemption to take effect automatically could create EMTALA problems, depending on the number of remaining physicians in the specialty.  Furthermore, we also recommend including language that states the MEC can require a physician who was previously given an exemption to return to the call schedule (on a temporary or permanent basis) if the needs of the Hospital change.

November 14, 2019

QUESTION:        Is there any way to ensure that practitioners at our hospital keep patients within the community and don’t unnecessarily transfer them to other facilities for the practitioners’ convenience or profit, without going through all of the rigamarole of summarily suspending the physician and then revoking his appointment and privileges, as in the Patel case that was featured in the “NEW CASES” section of this week’s Health Law Express?

ANSWER:            Yes!  Hospital and medical staff leaders can use a number of strategies to help ensure that patients who present to the hospital for treatment do not end up being unnecessarily transferred away to other organizations and/or other communities.  Most organizations’ Medical Staff Bylaws or Credentials Policy includes, as a threshold eligibility criterion for Medical Staff appointment, that an individual live and/or maintain an office within a certain geographic distance of the hospital.  The intent of such requirements is to ensure that practitioners are routinely available to respond to their patients when needed and to participate in medical staff affairs.  Further, it helps to ensure that follow-up, outpatient services are available to patients within the community.

Note that some organizations choose to have a general geographic distance requirement for medical staff membership (e.g., “within 30 miles” or “within 30 minutes driving”) and to also have specialty-specific requirements for those specialties where patient needs may be more urgent or demanding.  For example, it is not uncommon for there to be more stringent geographic requirements (e.g., “within 10 miles” for trauma).  Further, some organizations impose a loose requirement for general medical staff appointment (e.g., “within 50 miles”) but require individuals within certain specialties to be closer to the hospital when serving on call for the emergency department.

In the end, each organization has to choose how to define its geographic requirements, based on the unique nature of the community and the services offered by the hospital’s practitioners.  There’s not a “right” or “wrong” answer with respect to that.  So long as the Bylaws and/or Credentials Policy are appropriately drafted, an individual who fails to meet the geographic distance requirement need not have an application for appointment denied but, rather, can simply be told that he or she has been deemed ineligible to have an application  processed and considered.  Further, so long as those documents call for automatic relinquishment of appointment and privileges when an individual fails to satisfy any eligibility criteria, an individual whose status changes during the course of an appointment term could simply be informed of his or her automatic relinquishment, rather than the Medical Executive Committee and Hospital having to go through the motions (and possible hearing, appeal, and litigation) associated with revocation of appointment and privileges.

Finally, with respect to employed physicians, many organizations require (either in the employment contract or in separate employment policies) that services to be provided within the employer’s facilities unless certain, enumerated circumstances apply (e.g., the patient’s best interest requires transfer to another facility with more specialized capabilities, the patient’s health insurer insists, the patient requests transfer).

July 11, 2019

QUESTION:        Our Medical Staff Bylaws state that once a quorum has been achieved at a meeting, business may continue and all actions taken will be binding.  I presume this means that the Committee can take action even if, during the course of the meeting, members depart or recuse themselves (and leave the meeting).

Recently, we had a quorum for an MEC meeting where three of our 10 members were absent (in other words, we had seven of 10 members present, which was sufficient to satisfy our quorum requirement of 50%).  Three additional members of the Committee recused themselves when a particular physician matter came up for consideration, citing previous involvement in the matter (two of the three physicians who recused themselves had filed complaints against the physician; the other was heavily involved in prior collegial efforts with the physician and practices in the same specialty as an economic competitor).  After the recusals, we had only four of 10 voting members present to consider the matter.

There was disagreement within the remaining members about whether it would be appropriate to proceed — particularly given that serious action (such as a suspension) was being contemplated.  If the Bylaws say the Committee can “go ahead” even when participation drops below a quorum, is there any problem?

ANSWER:            Medical Staff Bylaws (and related documents) serve a very important role of setting guidelines and rules for the conduct of Medical Staff leadership activities and clarifying rights and responsibilities of Medical Staff members.  To that end, it is important to follow the documents whenever possible.  In your case, you did a good job of following the “rules,” established by your Bylaws.  When your meeting was convened, you ensured that you had satisfied the quorum requirement.  Thus, as per the terms of the Bylaws, the MEC was free to proceed in conducting any of the activities that are within its duties (including considering matters of physician peer review and professional review action).

Whether it is a good idea to proceed in a situation such as that which you described is a different matter than whether it is allowed.  And the answer is, “it depends.”

In hospitals that have smaller Medical Staffs and fewer leaders, it can sometimes be difficult to achieve high quorum requirements for meetings.  So, many such Medical Staffs choose to have low quorum requirements (e.g., “whoever is present” or 10%) and meetings are regularly conducted with few people present.  This allows the Medical Staff leadership to get things done, even though only a few people might be actively participating in leadership activities.  In larger hospitals with (presumably) more resources, some Medical Staffs choose more substantial quorum requirements, particularly for Committees that are deemed to have more substantial and important duties – such as the Credentials Committee, Peer Review Committee, and MEC.

While larger quorums can serve some purposes (e.g., giving assurances to Medical Staff members that policy decisions will not be made by individuals, but, instead, by more diverse bodies), they also can have downsides.  Larger quorums can be difficult to achieve – even in larger organizations – if the culture is such that only a small number of individuals are invested in leadership, rather than purely focusing on clinical duties.  Furthermore, even when practitioners are active in leadership, there are times (such as the situation you described) when the circumstances at hand make it difficult to obtain and sustain a significant quorum.

We encourage Hospital and Medical Staff leaders to thoughtfully consider conflict of interest recusal requirements (for example, when drafting PPE policies) that reflect the organization’s culture and resources.  After all, in some organizations, if all who were “involved at a prior level” were required to recuse themselves from any additional consideration of the matter, nearly all members of the MEC might be conflicted out each time a physician conduct matter came before the Committee (since so many of the leaders on the MEC serve as department chairs and officers who handle collegial matters before they ever get to the MEC level).

Further, even when the Bylaws and policies of the organization state that it is acceptable to proceed, we encourage Hospital and Medical Staff leaders to weigh the pros and cons, benefits and risks.  In the situation you described, though the MEC was free to proceed and take action with respect to the peer review matter before it, the MEC might have increased the appearance of fairness by withholding action on the matter until a greater number of MEC members could be present.  After all, although three members were recused and could not participate at this meeting or any future meeting, you described that three members were also absent.  Presuming they were able to attend a future meeting to act on this matter, then the MEC would be able to have seven of 10 members making the decision, instead of just four of 10.  Technically required?  No.  But whenever something as serious as an adverse professional review action is being considered, it makes sense to try to have the determination made by a larger body of individuals, where practical.  It helps if you end up in a Medical Staff hearing (more witnesses to rely on!).  It helps to give the practitioner who is the subject of the action the sense that this is not a personal matter – but rather a matter agreed on by a wide spread of his or her colleagues.

What if the matter is urgent and action cannot wait?  What if patient safety is clearly at risk?  What if you are never able to get more than seven people to attend MEC meetings?  Or the three absent individuals almost never attend?  Those are all things that would have to be considered.  In some situations, it may make sense to proceed with only four of the 10 members present and voting.

But remember, just because the Bylaws say you can does not always mean that you should.

June 20, 2019

QUESTION:              I noted that one of the cases that was in this week’s HLE arose as a result of a hospital granting temporary privileges to an applicant for medical staff appointment.  While we do not routinely grant temporary privileges, they are useful from time to time.  How much risk is there in granting temporary privileges?

 

ANSWER:                 While temporary privileges should not be routinely granted, it is not unusual for a hospital’s medical staff bylaws to state that temporary privileges may be granted to applicants for initial appointment whose complete application is pending review by the Medical Executive Committee and the Board. In order to be “complete” there must be verification of licensure, training or experience, current competence, and an ability to perform the privileges requested. In addition, the bylaws should state that in order to be eligible for temporary privileges, an applicant must (i) have had no current or previously successful challenges to licensure or registration, (ii) have not been subject to involuntary termination of medical staff membership at another organization; and (iii) have not been subject to involuntary limitation, reduction, denial, or loss of clinical privileges.   The bylaws may include other criteria that must be met before temporary privileges are granted.

Additionally, the hospital must query and evaluate information from the National Practitioner Data Bank and check the Office of Inspector General’s List of Excluded Individuals/Entities before temporary (or any privileges) can be granted.  Finally, the grant of temporary privileges should be time limited consistent with the standards of the applicable accreditation organization.  According to The Joint Commission standard “Temporary privileges for applicants for new privileges are granted for no more than 120 days.” 

It is not clear, but it appears from the facts of the case described above, that the hospital’s hospitalist group had such a need for the nocturnist that it wanted to use temporary privileges to rush a candidate through the hospital’s credentialing process.  The temporary privileges were granted and rescinded in 2012, but the litigation did not end until 2019.  In this case, not only did granting temporary privileges fail to fill the nocturnist position, but also caused the hospital years of litigation.

The best way to avoid these kinds of situations and the endless litigation that sometimes ensues is only to grant temporary privileges to applicants after a thorough vetting, after confirmation that there are no red flags and only under the above-described circumstances.

February 14, 2019

QUESTION:        In one of the cases in this week’s Health Law Express, the hospital was required to give physicians a hearing for failing to provide data — is that generally an event that would give rise to a hearing?

ANSWER:            Good catch!  The court in Blaine v. North Brevard County Hospital District did indeed require the hospital to give the plaintiff physicians a hearing.  According to the court, under the medical staff bylaws, the hospital was required to give the physicians a hearing before their request for reappointment and renewal of clinical privileges could be denied for failing to provide “patient data.”  The “patient data” appeared to be related to the hospital’s cancer program and necessary for accreditation purposes.

The court did not cite the bylaws provision that led to its determination that the physicians were entitled to a hearing or specify whether the “patient data” was related to the physicians’ qualifications.  Nonetheless, your Bylaws (or Credentials Policy) should contain language stating that an individual does not have a right to a hearing when that individual fails to provide information pertaining to his or her qualifications for appointment or clinical privileges.

Assuming the “patient data” requested by the hospital in the Blaine case was related to the physicians’ qualifications for appointment or clinical privileges, a Bylaws provision instructing that failure to provide this information results in “automatic relinquishment” of appointment and clinical privileges until the information is provided is critical.  There are often times that the hospital and medical staff need information which the individual controls to allow them to make an informed decision on the individual’s qualifications.  For example, the hospital may need to evaluate a physician’s ability to return to practice from a leave of absence for substance dependence rehabilitation.  If the physician refuses to sign a release allowing the hospital to communicate with the rehab entity about the physician’s prognosis and any limitations on the physician’s practice, this would hamstring the hospital’s ability to confirm whether the physician is able to safely return to practice.

The Bylaws should also clearly set out the actions which are grounds for a hearing and the actions not grounds for a hearing, with automatic relinquishment of appointment and privileges falling into the latter category.  If an individual fails to provide information that is relevant to his or her qualifications pursuant to a request by an authorized medical staff leader or committee, the only issue is whether the individual did or did not provide the information.  A hearing is not necessary to make such an administrative determination.

For more information on these difficult types of credentialing issues and good Bylaws language, join Susan Lapenta and Charlie Chulack on March 7-9 in Orlando, Florida for Credentialing for Excellence.

January 17, 2019

QUESTION:       We recently learned that the medical board investigated one of our medical staff members after a patient called the hospital to request a copy of her medical records and, while doing so, informed our patient experience liaison that she had filed a complaint with the state board.  A little fact-gathering revealed that the board’s investigation was closed.  The practitioner showed us a letter from the board thanking him for his cooperation and informing him that the board was unable to substantiate the complaint.  What comes next for the hospital?  Do we just make a copy of the letter and put it in the practitioner’s file?  Since he was exonerated, do we even need to do that?

 

ANSWER:           It’s disappointing to learn AFTER THE FACT that one of your doctors has been under investigation by the state board, CMS, or any other government agency.  Many hospital and medical staff leaders may be hesitant to make “a big deal” about a failure to notify in a situation where, as here, the member provides evidence showing that the investigation went nowhere.

But, as usual, how you respond to information about the state board’s investigation of a medical staff member should depend on what your Medical Staff Bylaws and related documents say.  Do they require members to notify you if they are under investigation?  When?  Within a certain time frame?  Is failure to notify excused when the underlying matter has been closed with no “adverse” action by the regulatory body?  Obviously, it does not serve the interest of patient safety to require notification of investigations only after the outcome is known to the member, since such a policy would prevent the hospital and medical staff leadership from taking precautionary steps to protect patients, the hospital, and other practitioners during the pendency of the investigation (if such precautions were determined to be necessary).

At this point, it makes sense to at least obtain a copy of the letter the physician produced to evidence the fact that the investigation was closed.  Note that the closure of an investigation by the board due to lack of substantiating evidence is not equivalent to exoneration.  Therefore, hospital and medical staff leaders should at least consider whether any additional information should be requested from the physician (e.g., correspondence between the physician and/or his attorney and the state board regarding this matter) or directly from the state board.

Provided that the Medical Staff Bylaws or Credentials Policy required the physician to notify you of the investigation earlier, it also makes sense to refer this instance of non-compliance into the professional practice evaluation process for further review under the medical staff’s professional practice evaluation policy (or Credentials Policy or other document outlining peer review procedures).  If the practitioner has a long history of failing to comply with the Bylaws and other requirements of hospital and medical staff policies, then a significant response to this event might be appropriate (e.g., a written reprimand or “last chance” performance improvement plan).  If the practitioner is generally compliant and his or her actions indicate that this was mere oversight or a one-time poor decision (e.g., perhaps a conscious decision not to provide notification, but based on the practitioner’s rational embarrassment about being investigated or based on incorrect legal advice telling him he was not required to report), the response may be less substantial (e.g., a collegial conversation).

In cases such as this, a lot depends on the facts.  But, what we know for sure is that ignoring an incident like this is never the right approach.  Consistent application of and reminder of policies – even when done collegially and without a punitive tone – helps to establish the expectations of the hospital and medical staff.

Finally, one could argue that too much of the lip service that is given to the topic of notification revolves around what’s required and what’s not.  Consider including in your policies and/or guidance documents language making it clear that the hospital and medical staff expect all ambiguities to be resolved in the favor of patient safety.  After all, patient safety is the first priority:

Applicants and practitioners are expected at all times to be forthcoming and truthful with respect to their initial and ongoing qualifications for Medical Staff membership and clinical privileges and any concerns that have been raised regarding the same.  The hospital and medical staff agree that complete information is of the utmost importance to the credentialing and professional practice evaluation processes and, in turn, to patient safety.  To that end, when in doubt about whether disclosure is required, applicants and practitioners are expected to err on the side of making a full disclosure to the Hospital and/or Medical Staff leadership, as set forth in the Medical Staff Bylaws and related hospital and medical staff policies.

October 18, 2018

QUESTION:        Our hospital has adopted a mandatory flu vaccine policy for all employees and our MEC thinks it makes sense to also require vaccines for all private practice providers who are credentialed at the hospital.  What is the best way to do this?

ANSWER:            This question seems to be coming up often — another sad reminder that the summer season has transitioned to the flu season!  Many medical staff leaders see the value in addressing this issue consistently across all providers, regardless of whether they are employed or not.

The simplest solution would be to modify your eligibility criteria in your Medical Staff Bylaws or Credentials Policy so that every applicant and medical staff member would be required to provide evidence of an annual influenza vaccination.  Of course, any exemptions in your hospital’s policy for employees could also be recognized (i.e., allowing providers to wear a mask whenever they are in the hospital if, for example, a medical condition would prohibit them from obtaining a vaccination).

Have other medical staff questions?  Then join Barbara Blackmond and Ian Donaldson for The Complete Course for Medical Staff Leaders, where we will cover practical, real-world approaches to managing all types of Medical Staff leadership dilemmas, including how to modernize the eligibility criteria in your Medical Staff Bylaws.

June 28, 2018

QUESTION:        What happens if a member of our Medical Executive Committee is unable to attend a meeting?  Should we require that member to designate a substitute and, if so, should the process for choosing a substitute be written into our medical staff bylaws?

ANSWER:            Generally speaking, it is usually unnecessary to require members to send a substitute to cover their absence from a Medical Executive Committee meeting.  While you certainly want people to attend and be engaged at meetings, an occasional absence is unlikely to affect matters substantially.

There are also certain drawbacks that come with designating substitutes to attend as alternates in case of an absence.  For example, the substitute must be educated on all of the confidentiality requirements that attach to membership on an important committee.  In addition, the substitute may lack the necessary background and training to understand the full significance of a particular decision (since he or she will only attend the meetings sporadically).  This can potentially lessen the effectiveness of the committee.

If it is especially important for a particular set of views to be represented, you can always invite that person to present his or her perspective to the committee.  To allow for this, we often add language in Medical Staff Bylaws that states:  “Other individuals may be invited to Medical Executive Committee meetings as guests, without vote.”  This gives you the option to bring in others as necessary, but does not mandate that a substitute cover every absence.