December 22, 2016

Posted on December 22, 2016December 29, 2016 by hortyspringer

QUESTION: As we are preparing for a medical staff hearing, a member of our Medical Executive Committee asked why our Medical Staff Bylaws state that the Chief Executive Officer appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff. We are trying to figure out whether this was a typo or not. Should the Chief of Staff appoint the panel?

ANSWER: No – that’s not a typo! While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing. The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee. When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, we have seen the argument made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process. The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

December 8, 2016

Posted on December 8, 2016 by hortyspringer

QUESTION: Our medical staff bylaws contain a provision stating that physicians automatically relinquish their appointment and clinical privileges if their license to practice medicine is suspended or revoked. Do we have to report such automatic relinquishments to the National Practitioner Data Bank?

ANSWER: No. By way of background, we generally recommend that medical staff bylaws documents identify certain events that will lead to the automatic relinquishment of appointment and clinical privileges. Typically, this occurs if a member: (1) loses his or her license or insurance coverage; (2) is excluded from Medicare; (3) is arrested, charged, indicted, convicted, or pled no contest to certain crimes; (4) fails to complete his or her medical records; or (5) fails to provide certain information or attend a special meeting requested by the Medical Executive Committee or a similar committee.

When a member’s appointment and privileges are automatically relinquished pursuant to a provision in the medical staff bylaws documents, the action is considered to be administrative in nature. That means there is no “professional review action” as defined by the Health Care Quality Improvement Act, so there is no need for a report to the NPDB. The latest edition of the NPDB Guidebook includes the following question and answer to clarify these situations:

Question: A hospital automatically revoked a physician’s clinical privileges when the physician lost her license. Should this action be reported?

Answer: No. Administrative actions that do not involve a professional review action are not reportable to the NPDB. The revocation of clinical privileges is automatic because the practitioner no longer holds a license. Regardless of the reason for the State medical board’s licensure action, the hospital’s revocation of privileges was not the result of a professional review action. Therefore, the hospital’s action should not be reported to the NPDB.

September 29, 2016

Posted on September 29, 2016September 29, 2016 by hortyspringer

QUESTION: Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver. Only if a waiver is granted by the Board is the individual’s application then processed. When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER: Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver). And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone. So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria. To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process. This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility). But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.