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.

January 25, 2018

QUESTION:        Our Medical Staff Bylaws require current board certification in the area in which an individual wants to practice.  Does that mean that recertification and/or maintenance of certification is required?

ANSWER:            Board certification (and particularly recertification and maintenance of certification) have become very contentious issues in recent years.  Not a week goes by that we don’t hear about some controversy surrounding board certification (e.g., state laws prohibiting it as a factor to be considered for health plan participation, issues with applicants who want alternative boards to be accepted by the hospital and its medical staff).  Some argue that certification is an industry-acknowledged stamp of approval with respect to basic competence.  Others argue that recertification and maintenance of certification have become overly bureaucratic, money-making machines and no longer serve as an indicator of quality.  We cannot say who is right.  But, due to the level of contention surrounding this issue, we will repeat our oft-given advice:  be clear in the Bylaws, Credentials Policy, privileging forms and delineation documents, and other relevant policies.  Clarity puts everyone on the same page, lets practitioners know what to expect, and prevents disputes.

In your case, the word “current” has been added to the Bylaws language to clarify the requirements for board certification.  From a plain-language standpoint, the Bylaws cannot be read to require only past certification which has now lapsed – since that would make the word “current” superfluous. It is pretty clear that your Bylaws do, in fact, require that an individual’s board certification be kept up to date.  As you know, different boards require different things of different people in order for them to stay “current.”  Some lucky folks from days gone by were granted lifetime board certification and they will satisfy any requirements for “current” board certification for their entire careers.  Other individuals have time-limited certification and must either recertify, comply with maintenance of certification requirements, or both in order to remain “current.”  To ensure that there are no misunderstandings, if a hospital and its medical staff decide that recertification and maintenance of certification will be required, we recommend that the Bylaws language not only use terminology referring to “current” certification but also specifically note that recertification and maintenance of certification are required, if required by the applicable boards.

Further, because issues surrounding board certification continue to be contentious, we recommend that you consult with counsel when revising the Bylaws or privileging forms to address such issues and that you take care to address not just recertification and maintenance of certification, but also:

  • which boards are acceptable for meeting the requirements;
  • whether subspecialty certification is required;
  • whether it is required to be certified in only one specialty or subspecialty, in those cases where the practitioner seeks privileges in more than one specialty at the hospital; and
  • what happens if a practitioner fails to satisfy the relevant board certification, recertification, or maintenance of certification requirements (e.g., automatic relinquishment of privileges upon notice? ineligibility for reappointment?)

 

December 14, 2017

QUESTION:        Our Medical Staff Bylaws require, as a threshold eligibility criterion, that an individual be board certified or become board certified within five years of joining the medical staff.  A long-time medical staff member, about whom we have no quality concerns, recently allowed his board certification to expire.  We notified him that he needs to recertify or will not be eligible to apply for renewal of appointment at the end of his current term.  He said that he does not read the Bylaws that way and since he was board certified within five years of joining the medical staff, he satisfied the threshold criterion related to board certification.  Is he right?  We’ve always enforced the board certification requirement as requiring current certification.

ANSWER:            Board certification has certainly become a contentious issue lately.  There is no universal best practice regarding whether to require recertification or maintenance of certification – but what is important is that the Medical Staff Bylaws and related documents (such as the Credentials Policy, if you use one) be clear regarding what is required, so that no medical staff member will be caught off guard and the leadership will not have to spend its time engaged in disputes over interpretation.

The intention in your Bylaws language is clear to me (and probably everyone else who works in medical staff leadership and credentialing).  When the Bylaws language was drafted, it was clearly meant to require current board certification by members, but to create an exception for those who are new to the organization, to give them time to “get up to speed” with your requirements.  From a technical standpoint, however, any medical staff member could argue that he or she only needs to meet one of the requirements set forth in the applicable threshold criterion.  That is, they either need to be board certified OR achieve certification within five years.  Clearly, the physician at issue in your case is taking advantage of the way the provision was drafted to argue that he has satisfied the second requirement and, in turn, has fulfilled the certification requirement indefinitely (without any need to recertify or maintain certification).

So, can you enforce the requirement that individuals be currently board certified based on your existing language?  The answer is not entirely certain.  If you have a set precedent of consistently interpreting your Bylaws language as requiring certification that is current – and applying the five year exception provision only to new members of the medical staff – there is a good chance that you can take the position that the Bylaws language requires current certification.  Nevertheless, because collegiality, transparency, and fairness are important in credentialing, it may make sense to at least consider whether the current situation can be dealt with in a way that pleases everyone.  Could a one-time waiver be granted, thus allowing the physician whose certification has lapsed one additional appointment term to recertify?  Doing so may keep the peace while the leadership works to adopt Bylaws language that clarifies this matter for everyone.

To that end, at this point, it would be wise to update the language of the Medical Staff Bylaws to more clearly state any requirements for recertification and/or maintenance of certification and to specify how lapses will be managed (immediately or at reappointment, for example).  Further, most hospitals and medical staffs have, in recent years, moved away from Bylaws language requiring certification within a number of years after joining the medical staff.  Consider instead adopting language stating that if an individual is not certified, but completed his or her training within the past [X number] of years, he or she will be eligible, but must become certified prior to that deadline or will become ineligible for renewal thereafter.

November 9, 2017

QUESTION:        Our Bylaws Committee would like to know more about exclusive contracts.  Specifically, we want to know where the hospital board gets the authority to enter into an exclusive contract.  Does this come from the medical staff bylaws or from somewhere else?

ANSWER:            Under the general principles of corporate law, hospital boards are afforded broad discretion in how they manage the hospital’s business affairs, including the ability to enter into exclusive contracts.  These general principles are reflected in laws at the federal and state levels, as well as in the standards of various health care accreditation bodies.  Consequently, the board’s authority to enter into an exclusive contract is bestowed by law, not by the medical staff bylaws.

Courts often view exclusive contract decisions as “quasi-legislative” actions, in contrast to an “adjudicatory” action aimed at a particular physician (which might give rise to a hearing).  So long as the hospital board acts rationally when it undertakes these quasi-legislative actions, courts are likely to defer to the board’s business judgment.

Although the medical staff bylaws are not the source of this authority, they may affect the process and consequences of entering into an exclusive contract.  For example, the bylaws (or credentials policy) may outline a process for the Medical Executive Committee to review and comment on the clinical performance and service implications of the proposed exclusive contract.  This review-and-comment process is limited solely to the clinical performance aspects of the contract; the actual terms of the arrangement (especially financial terms relating to remuneration) would not be disclosed to the Medical Executive Committee.

It is also important to see how the medical staff bylaws frame the issue of medical staff privileges.  The definition of medical staff privileges is relevant when assessing whether the exclusive contract arrangement will entitle the affected practitioners to any kind of hearing.  When you are drafting bylaws, we do not recommend that you give hearings to physicians affected by the exclusive contract.  Entering into this kind of contract is a managerial business decision – it is not a judgment about a particular practitioner’s competence or professionalism.

Most state laws (and most courts) recognize these core principles, but there are some exceptions.  Be sure to check the laws of your state before proceeding with an exclusive arrangement.

If you’d like more information on these issues, you should join us for our November 30 audio conference on Exclusive Contracts: New Challenges, New Opportunities.  Henry Casale and Josh Hodges will share best practices for entering into an exclusive contract, including recommendations on drafting the agreement and tips on avoiding common pitfalls.  More information will be available on our website in the near future.

June 1, 2017

QUESTION:        We are concerned about the language in our Medical Staff Bylaws that states that notification to an individual under investigation may be delayed if informing him or her immediately would compromise the investigation or disrupt the operation of the Medical Staff or the Hospital.  Doesn’t a physician under investigation have a right to know immediately when a resolution has been made to conduct an investigation?

ANSWER:            We understand your concern about delaying the notification to the individual. The reality is that, in most cases, the individual will be given notification as soon as possible once the MEC has decided to commence an investigation. However, there may be some situations where Medical Staff leaders are concerned that the individual might take some action (i.e., tamper with evidence or harassment of others involved) that would compromise the investigation or put others at risk of retaliation. In these rare situations, we recommend having Bylaws language that gives the MEC the discretion to delay notifying the individual about the investigation.

May 25, 2017

QUESTION:        The Medical Executive Committee disagrees with the way the Credentials Committee is managing a particular issue that has come before the Credentials Committee for consideration.  Since the MEC has higher authority in the medical staff leadership structure, can it direct the Credentials Committee on how to manage the issue?  Or is the Credentials Committee free to proceed as it sees fit?

ANSWER:            While it is true that the Medical Executive Committee is the “supreme” authority in terms of the medical staff leadership, most medical staffs are structured with built-in checks and balances and roles and responsibilities that are assigned to specified individuals or committees.  While the Medical Executive Committee may exercise oversight over all medical staff activities, that does not mean it can intervene any time that it disagrees with the way that something is being done.  So, if the Credentials Committee is performing assigned functions, it has some discretion to determine how to perform those functions – provided that it abides by the Medical Staff Bylaws and other relevant policies.

The Medical Executive Committee can offer suggestions, but has no authority to intervene with the exercise of the Credentials Committee’s discretion by telling it how to perform its duties (again, unless the Committee is violating the Bylaws or a policy or acting unlawfully).  This does not mean that the MEC is powerless, however.  Remember that the activities of all medical staff committees are subject to oversight of the MEC.  So, if the matter is one in which the Credentials Committee is making a recommendation to the MEC (such as a recommendation for a waiver of threshold criteria, of criteria for new clinical privileges, of criteria for clinical privileges that cross specialty lines, of appointment and privileges for an applicant, etc.), then the MEC can take the opportunity, during its review, to “correct” any mistakes it thinks the Credentials Committee may have made.  That could mean gathering more information, if the MEC feels the Credentials Committee did not do enough to scour an applicant’s background.  It could mean reviewing the matter anew, if it felt the Credentials Committee did not adequately address conflicts of interest during its review.  It could mean talking to an applicant, if it felt the Credentials Committee did not give the applicant ample opportunity to be heard.  The list goes on and on.  The point is, the MEC – as a subsequent level of review – has the opportunity to set right a multitude of perceived wrongs.

On a related matter, when medical staff leaders do not see eye-to-eye about how to manage day-to-day medical staff activities, that can indicate that it’s time for more education about the roles and responsibilities of hospital and medical staff leaders, as well as required credentialing and peer review functions (and the risks of not completing those functions well).  Leaders who are well-informed about the content of their Bylaws, the Credentials Policy, and related Medical Staff policies are likely to be more consistent in how they perform their leadership functions.  All medical staff leaders should also receive education about legal protections for leaders, the risks to legal protection (such as frolic and detour), and ways to maximize legal protections (e.g., through management of conflicts of interest, good documentation, reasonableness when dealing with other practitioners, and following a “patient safety first” rule of thumb).

May 18, 2017

QUESTION:        A registrant at our Complete Course for Medical Staff Leaders in New Orleans two weeks ago asked:

Appreciated the suggestion in the case study to hold an application incomplete if there remain questions and concerns, but couldn’t the Credentials Chair or another physician leader suggest that an applicant withdraw the application?

ANSWER:           They could.  However, such a suggestion must be done with care. Suggesting that an applicant withdraw could invite a contention from an applicant’s lawyer that leaders are attempting to talk an applicant out of a “right” to a hearing.  That’s not the case if there has not been a recommendation for “denial,” but dealing with the contention could consume valuable resources.  Instead of appearing to push the applicant to withdraw, it may be better to present the physician with the potential consequences of the options, including withdrawal, appealing a denial recommendation, or allowing the application to remain incomplete.  It is a best practice to have a framework of clear language in the bylaws or credentialing policy (premised on the applicant’s burden), that incomplete applications will not be processed; and any application that remains incomplete after information has been requested, and not fully provided after a stated period of time (30, 45 or 60 days), will be deemed to be withdrawn.  It is easier for someone to simply wait for the expiration of the time period than to have to formally write a letter of withdrawal.  If your documents don’t have that language, you can still use this technique by stating a time period in the letters posing questions and requesting information.  Add additional language to guide future credentialers, next time revisions are considered!

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.

April 20, 2017

QUESTION OF THE WEEK

QUESTION:        Our current Medical Staff Bylaws state that in order to be eligible for reappointment and renewal of clinical privileges, an individual must have “completed all medical records” during the previous appointment term.  However, even if an individual was compliant 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete, as some would be outstanding.  How do you resolve that issue?

ANSWER:            We have had several hospitals that we have worked with on Medical Staff Bylaws projects raise the issue that no one is, in fact, compliant with medical records all of the time.  Therefore, no one would truly be eligible for reappointment if eligibility required that an individual have completed all medical records during the previous appointment term.  As referenced in the question, even if an individual was compliant with medical records requirements 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete (some would be outstanding, but not delinquent).

So, we recommend expanding on the “completed medical records” language by having the Medical Staff Bylaws state that in order to eligible for reappointment, an individual must have:

completed all medical records such that he or she is not delinquent, as per the Medical Staff Rules and Regulations and Hospital policy, at the time he or she submits the application for reappointment or renewal of clinical privileges and, further, was not deemed delinquent (sufficient to result in the relinquishment of privileges) more than _____ time(s) during the prior appointment term.

February 9, 2017

QUESTION:        Our Credentials Committee recently considered a request for a waiver, submitted by a physician who does not satisfy our threshold criteria for appointment.  A few years back, this physician pled guilty to a felony battery charge, which ultimately led to a downward spiral in which he violated a restraining order and had his probation revoked.  The physician was forthcoming about his criminal background when he submitted his application, though his explanation largely deflected blame for the matters leading up to his arrest, guilty plea, and probation violation.

Before processing the physician’s request for a waiver, the Chief of Staff and CMO have recommended that the physician be required to provide substantial information (including arrest and/or court records) regarding these matters.  The Chair of the Credentials Committee disagrees and believes that the Credentials Committee, which has the responsibility pursuant to the Medical Staff Credentialing Policy to consider and make recommendations regarding waivers, should simply talk with the physician to get his side of the story and, if any questions remain after that, decide whether to ask for additional information.  Who is right?

ANSWER:            Most Medical Staff Bylaws or Credentialing Policies call on the Credentials Committee to consider and make a recommendation on requests for waivers of threshold eligibility criteria.  Often, the Credentials Committee is given broad discretion regarding what information to consider when reaching its recommendation.  And, as the individual charged with planning the agenda and activities of the Credentials Committee, the Chair would have the ability to exercise much discretion in determining how the committee would go about considering any request for a waiver.

The Credentials Committee may wish to review the application (or preapplication) submitted by the individual or any explanation submitted by the individual in conjunction with his or her request for a waiver.  It may also wish to speak with the individual regarding the waiver request and the circumstances that led to the individual being ineligible.  Therefore, the Chair’s expressed preference for talking with the individual is not totally out of line.

However, in almost any circumstance where a waiver is to be granted, the Credentials Committee is going to want to also verify the facts with third parties – to corroborate the story that is being told by the individual requesting a waiver.  The only exceptions to this would be when the circumstance is so obvious that no verification is required.  This may be the case, for example, if the individual does not have a coverage arrangement with another member of the medical staff, but explains that this is because no one else is practicing in the subspecialty in which he or she is requesting privileges.  Another example would be an individual whose office or residence is farther from the hospital than required by Hospital policy, in which case the individual may simply be providing the relevant addresses and explaining why the small discrepancy in distance will not affect his or her ability to respond appropriately to patients.

In the case at hand, where the individual is requesting a waiver related to his criminal history, it is hard to imagine any scenario where the Credentials Committee, MEC, or Board could proceed in processing the request for a waiver without verifying the facts of the matter from third party sources.  If the medical staff leaders or hospital failed to conduct this verification, how could they later justify such inaction (for example, in a court case brought by a patient or staff member who alleged to have been harmed by the physician’s conduct)?  Merely taking the physician’s word for it seems especially unreasonable in light of the fact that his original explanation deflected blame.

So, who is right in this situation – the Chief of Staff and CMO (who want to request written documentation) or the Chair of the Credentials Committee (who wants to talk with the individual requesting the waiver)?  In the end, the answer is that both of them are right in some ways.  It is the Chair of the Credentials Committee who ultimately decides whether the matter gets placed on the Credentials Committee’s agenda and, if so, the information that is gathered in advance of the meeting to assist the Credentials Committee as it talks with the applicant.  But, the committee will not be able to do its job properly without obtaining substantial information to corroborate the physician’s story – and so the Chair would be wise to take the advice of the Chief of Staff and CMO and gather the relevant documents from the individual prior to the Credentials Committee meeting.