QUESTION: We’ve had some debate over who can order therapeutic diets. Can you help explain the rules on this issue?
ANSWER: Historically, CMS has restricted the ability to order therapeutic diets to “practitioners responsible for the care of the patient.” This generally meant physicians. However, CMS changed its position on this matter in its Final Rule dated May 12, 2014 by revising 42 C.F.R. §482.28(b)(2) to read “All patient diets, including therapeutic diets, must be ordered by a practitioner responsible for the care of the patient, or by a qualified dietician or qualified nutrition professional as authorized by the medical staff and in accordance with State law governing dieticians and nutrition professionals.” (Emphasis added.)
This change came about largely in recognition of the fact that registered dietitians are trained to order patient diets independently, without requiring the approval or supervision of a physician. In order to give hospitals more flexibility in this area, CMS noted that “[i]n order for patients to have access to the timely nutritional care that can be provided by [registered dieticians], a hospital must have the regulatory flexibility either to appoint [registered dieticians] to the medical staff and grant them specific nutritional ordering privileges or to authorize the ordering privileges without appointment to the medical staff, all through the hospital’s appropriate medical staff rules, regulations, and bylaws.” This means that in order for a dietician to order patient diets independently, clinical privileges must be granted and monitored by the medical staff.
We have not seen any medical staffs elect to make dieticians full members. Instead, the most common approach we have seen is to adopt a stand-alone policy that states that any requests for ordering privileges would be processed through the Medical Staff process, while the rest of the dietician’s practice would continue to be monitored through HR.
Of course, your state law may still limit a dietician’s scope of practice, so be aware of any restrictions at the state law level.
QUESTION: Does our Utilization Review Committee have to be a Medical Staff committee, or can it be a Hospital committee?
ANSWER: In our experience, some hospitals do have a utilization review committee set up as a Medical Staff committee, but many do not. There is no explicit regulatory requirement or accreditation standard obligating a hospital to have a Medical Staff utilization review committee. For example, the Centers for Medicare & Medicaid Services (“CMS”) Conditions of Participation for Hospitals require hospitals to have a utilization review plan and a utilization review committee. The committee, per the Conditions of Participation, has to be a “staff committee of the institution” with at least two physicians as members. The requirement can be satisfied by “a group outside the institution” such as one established by local medical societies. CMS includes the utilization review requirements in the Conditions of Participation in a separate section from the medical staff requirements. The Medical Staff sections of the Conditions of Participation do not even mention utilization review. Even though the Conditions of Participation note that a utilization review committee has to be a “staff committee,” this is different from a “medical staff committee.” CMS knows how to signify when something falls under the purview of the medical staff and the fact that CMS left out “medical staff” when describing the requirements for the utilization review committee is significant. Furthermore, the Conditions of Participation state that the committee has to be a committee of the “institution,” which signifies “hospital” as opposed to Medical Staff. The fact that the utilization review committee requirement can be satisfied by a “group outside the institution” (that would not be a medical staff committee) also demonstrates that it does not need a medical staff committee. Keep in mind that if you decide to have the utilization review committee as a hospital committee, we recommend that you confirm that your state does not require that the committee be a medical staff committee.
That being said, we are aware of at least one client who received feedback from the CMS Survey & Certification Group, Division of Acute Care Services that the utilization review committee “must be a committee or subcommittee of the medical staff.” Nonetheless, this feedback, as noted above, is not consistent with the Conditions of Participation and we are not aware of CMS citing any hospital for having a Hospital utilization review committee. It is also not consistent with current practice of many hospitals whose utilization review committees are multi-disciplinary hospital committees with membership comprised of both practitioners and administrative personnel such as directors of coordinated care, billing staff, and internal audit staff.
QUESTION: We used emergency, alternative credentialing methods to grant privileges to additional practitioners at the outset of the COVID-19 pandemic — and to grant additional privileges to practitioners who were already members of our Medical Staff but willing to work beyond their normal scope of practice in order to help us best respond to community needs. Now, as we are winding down some alternative care sites and trying to find ways to get elective surgeries and treatments back on track, we are facing new dilemmas. For example, we need to offer some elective procedures at alternative care sites because certain facilities in the health care system are still dedicated to COVID care. If we want to have a practitioner from hospital A exercise his or her privileges in hospital B or an affiliated ambulatory surgery center, do they have to apply for Medical Staff appointment and privileges? We’ll never get that done on time. Can we continue to rely on temporary privileges and disaster privileges to get those individuals privileged and “up and running” at the other sites — even though they are not treating COVID patients (on the basis that the shifting of sites is nevertheless related to the COVID-19 pandemic)?
ANSWER: Just because the initial crisis is passing does not mean that the COVID-19 emergency is over — nor that the solutions for dealing with the emergency are unavailable to credentialers. You should, of course, check the Medical Staff Bylaws and/or Credentials Policy of the organization where an individual is to be privileged to determine what they say about temporary privileges for an important patient care need and/or disaster privileges. But, in all likelihood, both of these options will be available to you to help you solve the conundrum about how to temporarily get elective (but still necessary) procedures back on the schedule and underway, to meet the needs of your community. It’s important to remember, in the case of disaster privileges, that they can continue to be granted for so long as the emergency management plan is activated (which, in the case of most hospitals dealing with COVID-19, will probably be for quite some time). Of course, disaster privileging has its limitations (including that the institution that grants them is supposed to implement some method for monitoring those who have been granted disaster privileges and then periodically reviewing — perhaps every 72-hours for Joint Commission accredited hospitals — whether they should be continued). In this scenario, temporary privileges may provide a better option, since they can generally be granted for a longer time period initially (up to 120 days, pursuant to most Medical Staff Bylaws and related documents) and can be granted again and again if need be.
Of course, if the practice arrangement goes from a short-term arrangement to a long-term arrangement, then it would make sense to start full credentialing of the practitioners who have now been privileged to provide services at the alternative site. But, many organizations may find that as the COVID-19 pandemic passes, most practitioners are happy to get back to their usual places of practice and, in turn, full credentialing at the alternative site may not end up being necessary.
QUESTION: The five medical staffs in our system are thinking about unifying. Are there any particular steps we need to follow and any changes we need to make to our bylaws?
ANSWER: In May 2014, CMS revised the Medicare Conditions of Participation to allow a multi-hospital system to have a unified and integrated Medical Staff. There are several steps that must be taken in the integration process. First, the system must ensure that there is nothing in the state hospital licensing statutes or regulations that would prohibit the medical staffs of separately licensed hospitals from integrating into a single staff.
Second, the Board (and there must be a single Board) must document in writing its decision to use a unified medical staff model. This decision would be conditioned on acceptance by the hospitals’ medical staffs to opt-in to an integrated medical staff model.
Third, the medical staff of each of the hospitals must take a separate vote to opt in or opt out of the unified medical staff. The vote at each hospital must be governed by the respective medical staff bylaws in effect at the time. Only voting members of the medical staff who hold privileges to practice on site at the hospital may participate in the vote.
Fourth, the unified medical staff will also want to adopt new medical staff bylaws and related policies. The new bylaws should take into account the unique circumstances of each hospital, including any significant differences in the patient populations and the clinical services that are offered at each hospital.
Importantly, the new bylaws must also include a process by which the voting members of the medical staff who exercise clinical privileges at the hospital may vote to opt out of the unified medical staff in the future.
QUESTION: How do we handle a situation when there is a physician on the Credentials Committee who is married to another physician, and the spouse’s application is up for consideration?
ANSWER: Every so often we run across physician couples. In those instances, there may be a situation in which the conflict of interest rules for credentialing or peer review activities are implicated. For example, imagine that Dr. Wright is appointed to the Medical Staff, is recognized as having good leadership qualities, and is appointed to the Credentials Committee. Then, his spouse applies for Medical Staff appointment. The application comes before the Credentials Committee and Dr. Wright is told “You can’t vote on the application” but Dr. Wright insists on voting, because “I know this applicant better than any other applicant that has been before this committee!”
Well, that may be so, but Dr. Wright can’t vote! Going back to compliance training and basic conflict of interest rules, Dr. Wright has a conflict of interest regarding his spouse’s application. He is emotionally involved in the outcome, and probably financially involved too. Of course, Dr. Wright can provide any relevant information he may have regarding his spouse and can answer any questions the Credentials Committee may have about her. But, after doing so, it’s prudent for him to leave the Credentials Committee meeting, and not participate in the discussion of his spouse’s credentials or the vote on the application. Also, the minutes should reflect that he left the meeting, the vote occurring after he left, and his return to the meeting.
QUESTION: What we’d like to get as a present this year is a way to find strong, interested and effective department chairs and other Medical Staff leaders. Any ideas? Thanks – Virginia.
ANSWER: Yes Virginia, there is a Santa Claus – in other words, yes, we have a few ideas. Let’s start unwrapping the present.
In many hospitals, it has been traditional to rotate the department chair among those in the department so that everyone gets his or her turn, which does not always make for strong, interested, and effective leaders. However, not every physician has an aptitude for, or interest in, a medical staff leadership position. In order to solve this dilemma, a hospital should consider developing stronger qualifications for serving in medical staff leadership roles, including officers as well as department chairs, and to provide for compensation for these individuals. Another solution could be to determine whether there are too many departments and, if so, consider consolidating departments. By having fewer positions to fill, the hospital will then have a larger pool of qualified individuals who want to serve.
All of this said, one of the biggest changes that we have seen in medical staff leadership in the recent past is to eliminate the use of “ad hoc” nomination committees for identifying medical staff leaders – whether the leaders be officers, department chairs, or committee chairs — and moving toward a standing committee dedicated to leadership development and succession planning that meets throughout the year. Having a standing committee in place allows the leadership to take a more comprehensive look at the medical staff, identify new members who might make good leaders in the future, and give them time for training, education, and development.
For more on this, and other topics, please join Linda Haddad and Nick Calabrese for the first Grand Rounds Audio Conference of 2019 — Six New Year’s Resolutions Every Medical Staff Needs to Make.
QUESTION: What are the responsibilities of our hospital’s Board of Directors (“Board”) with regard to oversight responsibilities of the Medical Staff?
ANSWER: Although it is important to check your state laws and standards set forth by your accrediting organization, a good starting point would be to refer to the Medicare Conditions of Participation (“Medicare CoPs”) pertaining to the Board’s responsibilities, including its oversight responsibilities of the medical staff. For instance, the Medicare CoPs place the ultimate responsibility for quality of care provided at a hospital and monitoring the care provided to patients on the Board. Among others, the Medicare CoPs require the Board to define criteria for and appointing members to the medical staff, grant clinical privileges, ensure the existence and approval of medical staff bylaws, and approve various services in the hospital. Ultimately, the Board holds the responsibility for the quality of patient care in the hospital. The Board and medical staff engage to provide effective credentialing, privileging, and peer review and quality management processes.
Although responsibilities provided by the Medicare CoPs are extensive, do not forget to consult your applicable state laws as well as the standards of your accrediting organization, which may dictate further oversight responsibilities of the Board.
QUESTION: A physician new to our staff has taken it upon himself to personally “investigate” potential patient safety issues; he says that the medical staff committees are “useless.” He is not a member of any peer review committee. What can we do?
ANSWER: He should be counseled and advised (in writing) of proper channels for expressing his concerns. He should be asked to provide specifics so the matters can be reviewed. It is reasonable for hospital and medical staff leaders to develop a statement of expectations, which can be placed into the bylaws, credentials or peer review policy, or adopted separately, requiring that all medical staff members and privileged practitioners cooperate constructively in the peer review, patient safety and performance improvement processes. Careful procedures must be followed, to track any state peer review protection statutory requirements. It is also a fundamental principle of professionalism and respect that any practitioner who has concerns about hospital policies or other practitioners’ performance should take those concerns through appropriate channels. Otherwise, the practitioner raising these concerns could open himself or herself up to defamation claims by other practitioners whose care or practice he or she has criticized.
The peer review process depends on the willingness of all privileged practitioners to cooperate constructively. Having this responsibility set forth clearly in writing can be very helpful in the event a practitioner continues to act out inappropriately, and thus place the organization and medical staff leaders at risk. In the event an adverse action is necessary, it is best to have a solid written record that leadership reached out to the physician and provided specific directives as to avenues for presenting quality and safety concerns. If the practitioner persists after the counseling and written follow-up, he or she could be placed on a performance improvement plan or conditional continued appointment. That way, if this practitioner decides to sue, it will be easier to defend the claim because he or she will have brought about the action by his or her own conduct. You should, however, look into all the issues the practitioner has raised, through appropriate mechanisms.
QUESTION: Our Medical Staff Services Department is reviewing an application for a physician who has been recruited by the Medical Center as an employee. The physician does not meet all of the eligibility criteria in the Medical Staff Credentials Policy, but we understand the contract has already been signed. What should we do?
ANSWER: Unfortunately, this is an all-too-common problem. “Credentialing 101” says that an application from a candidate who does not satisfy the Medical Staff’s threshold eligibility criteria should never be processed – even in an employment situation. So, hopefully, the contract contains a provision that states the contract is conditional upon the physician being appointed to the Medical Staff and obtaining clinical privileges in the relevant specialty.
To avoid this situation in the future, organizations should strive for coordination between their Medical Staff Services Department and their recruiters. This means educating recruiters about the minimum qualifications set forth in the Medical Staff Credentials Policy, as well as giving your recruiters a list of “red flags” that will slow an application up during the credentialing process (e.g., gaps in experience, negative references, etc.)
To make sure your Medical Staff leaders have the knowledge and tools that they need to manage difficult issues like this, please join Barbara Blackmond and Ian Donaldson at The Complete Course for Medical Staff Leaders.
QUESTION: Can credentials and peer review information about a practitioner be shared with a sister hospital if the sister hospital has the same Board, but each has its own separate Medical Staff? Should they?
ANSWER: Hospitals that are affiliated under the same Board, in a system, can exchange information, although we recommend several steps to maximize legal protection. We generally recommend including a provision in each hospital’s Medical Staff bylaws or credentials policy, as well as a statement on the application form, that the applicant understands that information will be shared among entities in the system and that the sharing of this information is not intended to be a waiver of the state peer review protection statute. It is also a good idea to have a formal information?sharing agreement among the hospitals which clearly defines what information will be shared, when it will be shared, and to whom it will be forwarded.
As for whether the hospitals should share information, the answer is yes. Two hospitals under one Board would be considered one corporate entity. Each individual hospital (or clinic, health plan, ambulatory surgery center and any other related facility) is part of that one entity. Important to the Medical Staff leaders responsible for helping to maintain high standards of care through careful and thorough credentialing of physicians is the fact that because it is one entity, credentialers may be “deemed” to be making recommendations as to whether a specific practitioner is qualified and competent based on the collective knowledge of the entity as a whole, rather than the knowledge contained within an individual hospital. The standard in the law — when it comes to doling out liability — is that the credentialers “knew or should have known” the relevant information that came from the sister facility.