February 14, 2019

Posted on February 14, 2019January 30, 2020 by hortyspringer

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

Posted on January 17, 2019January 20, 2019 by hortyspringer

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

Posted on October 18, 2018 by hortyspringer

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

Posted on June 28, 2018 by hortyspringer

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.

March 15, 2018

Posted on March 15, 2018March 15, 2018 by hortyspringer

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

Posted on January 25, 2018January 25, 2018 by hortyspringer

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

Posted on December 14, 2017 by hortyspringer

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

Posted on November 9, 2017November 10, 2017 by hortyspringer

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

Posted on June 1, 2017 by hortyspringer

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

Posted on May 25, 2017May 25, 2017 by hortyspringer

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).