QUESTION: Our hospital recently received a request from a former Medical Staff member for a complete copy of his credentials and peer review files. The files are thick – he had a fair number of clinical and behavioral concerns while on our staff. Are we required to provide the copies as requested?
ANSWER: State law needs to be reviewed. However, in most states, hospitals are not required to provide former Medical Staff members (or even current members) copies of their credentials and peer review files. (In contrast, state law often does require that employees be granted access to personnel files maintained by Human Resources.)
Assuming state law is silent, the next question is whether the hospital has a policy addressing such requests. Naturally, if a policy exists, it should be followed.
If there is no such policy, the hospital should consider how such requests from former Medical Staff members for copies have been handled in the past. While a hospital is not bound by the past and is always free to adopt new procedures, it should be careful to avoid allegations that individuals are being treated differently for a discriminatory reason.
The best practice, of course, is to adopt a policy that governs Medical Staff members’ access to their credentialing and peer review files. For existing Medical Staff members, the policy might describe the rules for accessing “routine” and “sensitive” documents, with sensitive documents receiving special protection (for example, names of those who raised a concern will be redacted). For former Medical Staff members, the policy could state simply that copies will not be provided, but that the hospital will provide information upon request to other hospitals as directed by the former Medical Staff member for credentialing and peer review purposes.
QUESTION: When a concern is raised about the behavior of a Medical Staff member, we’ve typically referred it to our department chairs. The chairs give it their best shot, but we were wondering if there’s a better way?
ANSWER: Yes! There are many drawbacks to asking a single individual — regardless of who that person is — to deal with difficult behavioral matters.
First, the department chair is often either a competitor or partner of the physician under review. This can make it difficult for the department chair regardless of whether an actual “conflict of interest” exists.
Also, depending on the size of a department, the department chair may not deal with many behavioral concerns. As a result, the chair never obtains enough experience to become truly comfortable addressing behavioral issues.
Individual department chairs have no built-in opportunity to brainstorm about the issues under review. If they want to seek assistance, they have to find another physician leader and bring that person up to speed.
Thus, we recommend that a core group of physician leaders — referred to as a Leadership Council — handle behavioral concerns. The Leadership Council might be comprised of the Chief of Staff, Chair of the Professional Practice Evaluation/Peer Review Committee, and Chief Medical Officer. The advantages of using a Leadership Council to handle behavioral concerns include:
- consistency across departments (no more variability based on the personality of individual department chairs);
- easier to avoid conflicts of interest;
- permits department chairs to preserve their working relationships with physicians under review;
- expertise through experience;
- emphasizes the importance of the issue and enhances the credibility of the physician leadership because a group of leaders – not a single person – is speaking with the physician under review; and
- problems are discussed by a small group, which promotes the exchange and development of ideas.
For more information on Leadership Councils and other important topics, please join us at Disney’s Yacht and Beach Club Resort in Orlando, FL on March 7-9, 2019 for The Peer Review Clinic.
QUESTION: Our hospital policies allow almost anyone to order outpatient services, regardless of whether they are a member of the Medical Staff or not. Is this a problem?
ANSWER: This poses compliance issues under the Medicare Conditions of Participation (“CoPs”). The CoPs only allow outpatient services to be ordered by practitioners who meet certain conditions. The ordering practitioner must be (1) responsible for the patient, (2) licensed in the state where he or she provides care to the patient, (3) acting within his or her scope of practice under state law, and (4) authorized by state law and policies adopted by the Medical Staff (with approval from the governing body) to order the applicable outpatient services.
Your Medical Staff policies can reflect a determination as to whether practitioners who are not on your Medical Staff are permitted to order outpatient services. However, these policies must address how you will verify that the referring/ordering practitioner meets the requirements in the CoPs. You will need to keep documentation to show that you have complied with the CoPs (e.g., documents showing that you checked the ordering practitioner’s license).
If you permit allied health professionals not affiliated with your hospital to order outpatient services, you may have to do a significant amount of work. Be sure to check their scope of practice to make sure they are permitted to order the service in question. In addition, be sure to follow the laws of your own state!
You may decide that certain orders should be permitted only by individuals with specific hospital privileges. The Interpretive Guidelines give the example of requiring practitioners to have hospital privileges before they can place an order for outpatient chemotherapy services. If you do this, be sure to delineate these terms clearly in your policies.
QUESTION: We received word through the grapevine that a Medical Staff member was arrested for driving under the influence of alcohol (“DUI”) last weekend. Does our Medical Staff leadership need to take any action, or should we only act if we’ve observed problems in the hospital?
ANSWER: A DUI may be a sign of a significant underlying problem, or it may reflect only a momentary lapse in judgment. Given this uncertainty and the potential risks to patients and the practitioner, it makes sense to speak with the practitioner about the DUI, gather relevant information, and decide if any additional action is needed. This approach protects both patients and the practitioner.
Gathering information about the DUI is consistent with the process followed by some state medical boards, which use a trained professional to interview physicians who are arrested for a DUI to determine if an additional assessment or intervention is required.
The hospital’s Credentials Policy and Practitioner Health Policy should help physician leaders to address these issues:
- The Credentials Policy should make clear that applicants and members of the Medical Staff must notify the Medical Staff Office, the Chief of Staff, or the Chief Medical Officer of any change in information provided on their application form. In fact, the Credentials Policy could specifically state that physician leaders must be notified of any DUI or similar matter.
- The Practitioner Health Policy should outline a non-punitive, supportive process for carefully obtaining a practitioner’s input, evaluating a potential health issue, and helping the individual resolve the issue.
For more information on how to handle these and other issues, join us May 4-6 in New Orleans (and enjoy Jazz Fest at the same time – responsibly!).