medical staff

September 8, 2022

Posted on by Courtney Patterson

QUESTION:
Can the medical staff of a critical access hospital be part of a unified medical staff within a multi-hospital system?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
As of the date of this e-mail (September 8, 2022), the answer is no, but a change could be in the works soon.  In 2014, the Centers for Medicare & Medicaid Services (“CMS”) revised the Medicare Conditions of Participation to allow a “unified and integrated” medical staff in hospitals that are part of a health system.  Previously, CMS had required that each hospital have its own separate medical staff.  In the past, even if medical staffs in a system had overlapping membership, CMS required that the medical staffs be “separate.”  However, the CMS Interpretive Guidelines provide as follows:

[A] hospital system that includes certain types of hospitals, i.e., Hospitals-within-Hospitals or Hospital Satellites, that are being paid under a Medicare payment system other than the Hospital Inpatient Prospective Payment System (IPPS) might jeopardize the Medicare payment status of those excluded hospitals if it owns both the tenant and host hospitals and uses a unified medical staff for both.  (Emphasis added.)

42 CFR §482.22(b)(4).  This effectively prevented CAHs from being part of a unified medical staff within a system.  CMS reiterated this rule in 2017 when it approved an application from The Joint Commission to have deemed status for surveys of CAHs. 82 Fed. Reg. 49,817, 49,818 (Oct. 27, 2017).

However, on July 6, 2022, CMS proposed that this prohibition be lifted and that medical staffs of CAHs be permitted to be part of a unified medical staff within a multi-hospital system subject to essentially the same rules (e.g., opt-in and opt-out rights, consideration of local circumstances, etc.) that apply to unified medical staffs within PPS hospitals. 87 Fed. Reg. 40350, 40376.  Comments closed on August 29, 2022, so the proposal may be final at any time now.  Stay tuned for further developments in the Health Law Express.

September 1, 2022

Posted on by Courtney Patterson

QUESTION:
We have new Medical Staff leaders taking office the first of the year and would like to get them trained up when they start. Do you have any virtual options available?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Do we ever!!! Several partners here at HSM have been working on a new virtual Medical Staff Leader Orientation & Toolkit program that will be available on January 26, 2023. This six-hour course will cover leadership, credentialing, and peer review topics, providing your new leaders with the tools they will need to get off on the right foot!

You can obtain more information and register for this program here.

August 25, 2022

Posted on by Courtney Patterson

QUESTION:
I just got back from what was probably the worst-run medical staff committee meeting ever. The problem is that I’m the chair and was running the meeting!  I thought it would be easy, but it was a lot harder than it looked. Any pointers?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Running a meeting is hard work – here are some tips that may help:

Tip #1.  Start on time.  This is one of the most important tips.  If a meeting isn’t started on time, chances are it won’t end on time, and that has consequences which we’ll discuss below.  If a meeting always starts on time, the attendees will more than likely be there on time, since no one likes to walk into a meeting late, and being late disrupts the meeting.

Tip #2.  Limit the conversation.  What “limit the conversation” means is that if a couple of attendees in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?”  Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion.  This can be hard to do, but it is a skill that needs to be developed.  Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #3.  Take an issue off-line.  There are times when a meeting is getting bogged down because no one has the information needed to make a decision.  For example, is the bylaws revision being discussed a Joint Commission Standard?  A best practice?  If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue.

Another reason to take an issue off the agenda is when there are so many conflicting points of view that the issue won’t be able to be resolved at the meeting.  The chair knows that no matter how much more discussion there is, the issue won’t be resolved.  So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #4.  End on time.  This is the most important tip.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, others will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make – focus is lost.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  Also, not ending on time affects meeting attendance.  If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

Sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. – that happens.  But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting.  The exception is if the issue is of critical importance, but that will be few and far between.

July 21, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital recently employed a small group of orthopedic surgeons. There have been rumblings that hospital administration was unhappy with the performance of the private orthopods and there is clear tension between administration and the private group. There was an incident last week in the cafeteria where one of the private orthopods allegedly yelled and got in the face of one of our hospital administrators. The administrator wants to deescalate the situation and hasn’t filed a complaint, but how should we as a medical staff handle the matter?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This is an excellent question and the administrator’s response is completely understandable, but the best practice in this situation is to follow your Medical Staff Professionalism Policy.  If medical staff leaders become aware that a practitioner’s behavior in the hospital may be inconsistent with the expectations for medical staff members, the leadership can and should review that behavior under the Professionalism Policy.  The review by the medical staff leadership does not depend on the administrator filing a complaint.

The Professionalism Policy should require that appropriate fact-finding take place and that the private orthopod have an opportunity to provide input.  This fact-finding and input will allow the medical staff leaders to understand the context in which the dispute occurred.

As I said, the administrator’s hesitance in filing a complaint is natural.  From that individual’s perspective, filing a complaint will not only increase the tension that seems to be occurring between hospital administration and the private orthopods, but it will also open a door for the private orthopods to claim they are being targeted by administration.  However, the risk of not acting is that potentially inappropriate behavior is not addressed.  This is bad for the culture at the hospital and the credibility of the medical staff leadership.  Also, allegations that administration is targeting the private orthopods can be addressed by good fact-finding and documentation (e.g., by talking with others who witnessed the event).  Allegations of bias, while scary, would be easily dispelled in this situation.

Additionally, the downsides of not filing a complaint are potentially much greater.  For example, what if the surgeon’s behavior continues to cause disruption in the hospital and the medical staff needs to impose some form of discipline?  Without addressing this particular incident, your medical staff will be missing a key part of the record to use if and when the time comes to deal with the surgeon’s behavioral issues.

July 14, 2022

Posted on by Courtney Patterson

QUESTION:
We’re revising our Medical Staff Bylaws, which require that we run criminal background checks at initial appointment on all Medical Staff applicants.  There’s no disagreement there, but there is disagreement as to whether we should also run criminal background checks at reappointment.  Any thoughts?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Although this differs from hospital to hospital, in our experience, the majority of hospitals are not running new criminal background checks at reappointment.  Why?  Most hospitals have strong language in the Medical Staff Bylaws that require Medical Staff members to keep the hospital updated on any new criminal activity. So, the rationale is that once an individual is on the Medical Staff, the hospital will know about any additional criminal activity because Medical Staff members have an obligation to inform the hospital of such activity.  While this is not necessarily foolproof – a hospital can only truly verify that criminal activity hasn’t occurred by running subsequent background checks – in terms of an industry standard, we feel comfortable saying that many hospitals are only running full checks at initial appointment, not reappointment.  So, a hospital could reasonably decide not to run these background checks on an ongoing basis.  There is one caveat here – you should check to see if there are any state law requirements regarding criminal background checks and how often to run them.

May 19, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital is negotiating with health insurers to perform delegated credentialing on their behalf.  The insurers are telling us that we cannot have a hearing officer option for conducting a hearing when providers are subject to certain adverse actions, such as termination of participation on a panel. Is this correct?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes. This is how health insurers interested in delegating credentialing functions to health care providers interpret the Medicare Advantage rules for provider participation.  According to those rules, a health insurer involved in the Medicare Advantage program has to give physicians certain rights when it suspends or terminates the physician’s participation agreement.  Among those rights are the right to receive notice of the reasons for the action and the right to appeal that action. The rules go on to talk about a hearing panel but only state that the insurer (or insurer’s delegate) must ensure that the majority of the hearing panel members are peers of the affected physician.

Now you could follow the constitutional principle of English law that instructs that “everything that is not forbidden is permitted” and go ahead and draft your delegated credentialing policies so that they allow for the hearing officer alternative to using a hearing panel.  However, this may create headaches down the road since health insurers have to perform a pre-delegation audit of your policies and procedures before delegating credentialing and will most likely require a revision to your policies if they permit the hearing officer option. Some providers, such as hospitals, use their existing medical staff credentialing policies and procedures to build off of to put delegated credentialing processes in place. To the extent that a hospital is interested in doing so and its existing Credentials Policy allows for the hearing officer option, it can simply revise its Credentials Policy to indicate that the option is not available when a hearing is offered for delegated credentialing purposes (as opposed to medical staff purposes).

May 12, 2022

Posted on by Courtney Patterson

QUESTION:
Due to the long time needed for a physician with behavioral complaints to go through the collegial efforts and progressive steps (e.g., collegial meetings, letters, performance improvement plans, etc.), staff are often left with the impression that Hospital and Medical Staff Leaders are not addressing the problem and “the physician is getting away with his bad behavior again.”  This destroys morale and it makes everyone reluctant to report concerns.  Do you have suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  In our experience, nursing and other hospital staff are typically reluctant to report concerns, especially about behavior.  We also know that the reports that get filed are typically “the tip of the iceberg.”  This is supported by The Joint Commission’s Sentinel Event on Behaviors that Undermine a Culture of Safety, which was first published in July 2008 and was updated in June 2021.

It is even harder for staff to file a report if they think they are being ignored or if nothing has been done about reported concerns in the past.  At the same time, addressing behavioral concerns (just like addressing clinical or health concerns) is part of the peer review process and is confidential and privileged.  That doesn’t mean that leaders can’t get back to the person who filed the report.  In fact, we recommend, as a “best practice,” that leaders try to always follow-up with a person who has filed the report or complaint.

The follow-up is important because you will often get additional meaningful information when you talk with the person who filed the report.  For instance, you might learn that the complained of behavior “happens all the time” or that others have been subject to the same behavior by the same physician.  You might also learn the names of additional people who witnessed the incident or who have relevant information.  Any new information should also be documented.

But beyond getting additional information, talking to the person who reported the concern is important because it is your chance to reassure the person that they have been heard.  You can thank the person for coming forward and remind them that documentation is necessary so that action can be taken.  You can also let them know their report has been reviewed by Medical Staff Leadership and that appropriate action will be taken.

You can also let the person know that retaliation of any sort against them for filing a report will not be tolerated and they should report immediately if they think they are being retaliated against in any way.  It’s also a good idea to let them know that their identity has not been disclosed.

Additionally, you can tell the person who filed the report that the Medical Staff deals with concerns about behavior as part of its peer review process and that the process is confidential and privileged according to hospital policy and state law.  You can explain that you are not at liberty to share the results of the peer review process with them, but you can reassure them again that they have been heard and that action is being taken.

You may want to follow-up with a note or e-mail.  This will reinforce the information you provided and it will also give you a chance to remind the person of the important role that they play in addressing concerns (it is difficult to correct a problem without a written report or complaint) and the need for them to continue to report incidents in the future.

May 5, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.

April 21, 2022

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing?  Privileging?  Peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions.  Legally, there is no support for viewing an employment relationship as a disqualifying factor.  And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians.

Of course, if a specific concern is raised about an individual’s participation in any given review, it always makes sense to consider whether an individual has a conflict that could bias the process (e.g., direct competitors, close friends, etc.).  These types of situations should be addressed under the Medical Staff’s conflict of interest guidelines.  But those guidelines should make it clear that employment by, or other contractual arrangement with, a hospital does not, in and of itself, preclude an individual from participating in Medical Staff functions.

April 14, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, a nephrologist resigned from our medical staff to take an opportunity out of state.  It’s been brought to my attention that one of the nephrologist’s cases had been flagged for review by our peer review specialist.  The specialist sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is more common than you would think.  Because the nephrologist is no longer a member of your medical staff, we would advise that specific peer review of that physician’s medical services should be discontinued.  The purpose of peer reviewing that physician is to ensure and improve quality; this purpose can no longer be effectuated if the physician has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as having the physician complete additional training and then monitoring a few of the physician’s cases at the hospital).  Also, a malpractice attorney may argue that the peer review privilege doesn’t apply to reviews conducted after a physician has left the medical staff.  Finally, continuing peer review of a physician no longer on your medical staff may give an eager plaintiff’s attorney something to squawk about (e.g., allegations that the purpose of the review is to harm the physician).