privileges

July 18, 2019

Posted on by hortyspringer

QUESTION:              If we allow registered dieticians (“RDs”) to order therapeutic diets, do we have to grant them privileges through the Medical Staff?

ANSWER:                 Yes, you do according to CMS.  This is based on a change made in 2014.  Traditionally, CMS restricted the ability to order therapeutic diets to “practitioners responsible for the care of the patient.”  However, in its Final Rule dated May 12, 2014, CMS changed its position on this matter and revised 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.

CMS went on to explain the rationale for this change in the Final Rule as follows:

In order for patients to have access to the timely nutritional care that can be provided by RDs, a hospital must have the regulatory flexibility either to appoint RDs 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.  In either instance, medical staff oversight of RDs and their ordering privileges would be ensured.  Therefore, we proposed revisions to §482.28(b)(1) and (2) that would require that individual patient nutritional needs be met in accordance with recognized dietary practices.  We would make further revisions that would allow for flexibility in this area by requiring that all patient diets, including therapeutic diets, must be ordered by a practitioner responsible for the care of the patient, or by a qualified dietitian or other clinically qualified nutrition professional as authorized by the medical staff and in accordance with State law.  We believe that hospitals that choose to grant these specific ordering privileges to RDs may achieve a higher quality of care for their patients by allowing these professionals to fully and efficiently function as important members of the hospital patient care team in the role for which they were trained.  In the proposed rule, we stated that we believe hospitals would realize significant cost savings in many of the areas affected by nutritional care.

However, not all states allow for this type of flexibility.  For example, in our home state, Section 111.27 of the Pennsylvania Code states that therapeutic diets must be prescribed by a physician.  Accordingly, any hospital that wants to allow RDs to practice in this manner must first obtain an exception from the Pennsylvania Department of Health in order to implement the approach outlined in the new CMS Final Rule.

Also keep in mind that allowing RDs to practice in this way is not required; rather, it is at the discretion of each individual hospital, as explained in a series of responses to comments in the Final Rule:

Comment: Another commenter asked for clarification on whether the proposed requirement only provides a hospital with the option of credentialing and privileging a dietitian.

Response: The requirement, including the revisions we are finalizing here, does not require hospitals to credential and privilege dietitians as a condition of participation, but, as previously stated, allows for it as an option if consistent with State law.

Comment: A few commenters stated that they were concerned about ordering diets for critically ill patients or making specific patients “NPO.” They further state that they would feel comfortable ordering diets only if there was a “‘diet order per dietitian’ order from the doctor.”

Response: As we have stated, the requirement does not require dietitians and nutrition professionals to order diets, but only allows for it as an option if consistent with State law and if a hospital chooses to grant such privileges after considering the recommendations of its medical staff.  An individual dietitian or nutrition professional would then need to apply for these ordering privileges.

June 13, 2019

Posted on by hortyspringer

QUESTION:         A registrant at our April Complete Course for Medical Staff Leaders in New Orleans submitted a question about waiver of threshold eligibility criteria for an applicant  (a general practitioner who did an internship in 1985 but not a residency and so cannot even sit for the boards, who has been doing only outpatient primary care since).  The criteria specify that grandfathering is possible for those who finished training before 1985; after 1985, a physician must achieve board certification within three years of appointment.  All references are excellent. What can we do?

ANSWER:            The question does not reveal why this physician wants to be on the medical staff or whether privileges would be sought in addition to appointment.  In order to be eligible for any privileges, regardless of medical staff category, any applicant must be able to demonstrate current competence, according to CMS. Often, the eligibility criteria require that a candidate has practiced in at least two of the preceding four years in a hospital setting. Many organizations have a category for office-based practitioners, without any privileges. Some physicians wish to have a connection with the hospital for purposes of continuity of care when they refer patients for inpatient care to hospitalists.  Possibly this physician wants appointment to be on health plan panels.  (The latter is not a reason, in itself, to grant appointment.) When a physician is appointed to any category of the medical staff, even a category that does not carry with it any privileges, the public (and health plans) may rely on the hospital’s imprimatur.

The courts have upheld grandfathering in certain circumstances, but usually that is limited to individuals who have been on a medical staff for a number of years who have a track record that can be evaluated, when new policies require board certification for all applicants after a certain date. The hospital is not required to process an application for initial appointment from those who are not eligible.  In the questioner’s situation, the only option other than declining to process the application based on ineligibility may be to consider appointing this individual to a membership-only category with no privileges. To consider even that type of appointment, many organizations would obtain evaluations from physicians to whom the outpatient practitioner has referred patients, to be sure that this outpatient practitioner is referring patients for the right reasons and doing the right pre-referral assessment.

As a final point on waivers generally, an occasional waiver in exceptional circumstances is usually preferable to modifying standards to fit a particular unusual situation and risking opening the door to others. Anytime a waiver is to be considered, it’s best to follow a process, specified in the Credentials Policy, and include a statement that the waiver is not intended to set a precedent for anyone else.  And, any waiver should be based on exceptional qualifications of the applicant and the best interest of the hospital and community.

July 5, 2018

Posted on by jwilbert

QUESTION:        Our On-Call Policy requires physicians to have 30 admissions or operating cases at the hospital per year to participate in the on-call schedule.  The Policy also gives discretion to the department chairs, who develop the call schedules, to limit the ability of a particular physician to participate in the schedule for a number of reasons, some of which have nothing to do with the quality of care being provided.  Do these provisions in our Policy pose any legal concerns?

ANSWER:            Yes.  First, conditioning participation in the call schedule on admissions at, or procedures done in, the hospital could be interpreted as conditioning participation on referrals to the hospital.  Such a requirement could present compliance issues with the federal Anti-Kickback Statute.  In Supplemental Compliance Program Guidance for Hospitals, the Department of Health and Human Services Office of Inspector General (“OIG”) cautioned that “conditioning privileges on a particular number of referrals or requiring the performance of a particular number of procedures, beyond volumes necessary to ensure clinical proficiency, potentially raise substantial risks under the [Anti-Kickback] statute.”  Some state courts have found that participation on the call-coverage roster constitutes a “privilege.”

January 26, 2017

Posted on by hortyspringer

QUESTION:        An applicant for reappointment has requested privileges that he has not performed for many years (and he doesn’t perform them anywhere).  Can we deny the request?

ANSWER:           The D word is not the best answer; why not approach it by developing eligibility criteria for core and special privileges?  A determination of ineligibility is not an adverse professional review action, and so is not reportable.  CMS requires that hospitals consider evidence of current competence in granting and renewing privileges.  What is “current”?  For many procedures and practice areas, there is a recognized correlation between proficiency and performance.  A two-year reappointment cycle is a logical period, except perhaps for procedures that are very rarely done (but it may be vital to maintain privileges for those unusual occasions where a patient can’t be transferred in time to help).

Join us for our Grand Rounds audio conference on Feb. 7 when we address how you can design policies to help handle a number of privileging dilemmas.

March 12, 2015

Posted on by hortyspringer

QUESTION:    We just received an application for privileges from a nurse practitioner. As part of her application, she submitted a copy of her “Collaborative Practice Agreement” which stated that “the intent of this document is to authorize the nurse practitioner to practice” at various sites, including our hospital. This doesn’t seem right to us. What can we do?

ANSWER:    In most hospitals, advanced practice registered nurses and physician assistants (advanced practice clinicians) have become an integral and invaluable part of the treatment team. However, there continues to be challenges in credentialing and privileging advanced practice clinicians created by differing standards, expectations, and training.

As with all practitioners, you should establish threshold qualifications for advanced practice clinicians.   We recommend that you develop these qualifications in advance and include them in your medical staff credentials policy.   Typically, threshold qualifications will require evidence of a Collaborative Practice Agreement (for advanced practice nurses) and a Supervision Agreement (for physician assistants).

Specific education, training and experience criteria can be included in the delineation of privileges (“DOP”). The DOP should also address exactly what the advanced practice clinicians are permitted to do in the hospital. It is a good idea to address the role of advanced practice clinicians in consultations, emergency on-call coverage, calls regarding their collaborating or supervising physician’s hospitalized inpatients, daily inpatient rounds, and orders. In all of these areas, medical staff leadership should recommend, and the hospital adopt, standards that best meet the needs of patients treated at the hospital.

Importantly, in establishing threshold qualifications, and in developing the DOP, you will be guided by the relevant licensing statutes. However, it is important to remember that even if the licensing statute allows an advanced practice clinician broad authority to practice, the hospital can impose a more limited scope of practice. The same is true for the Collaborative Practice Agreement and the Supervision Agreement. These documents may be drafted as broadly as legally permissible, but that does not mean that the hospital must allow the same broad practice in its acute care setting.

Finally, consistent with federal and state law, the hospital cannot allow the Collaborative Practice Agreement (or the Supervision Agreement) to “authorize” practice in the hospital. That authorization can only be granted by the Board of the hospital following a full and complete review and a recommendation by the Medical Executive Committee. In this particular case, you would be well advised to inform both the nurse practitioner and her collaborating physician that any language “authorizing” practice in the hospital should be stricken from the Collaborative Practice Agreement.

For more information about advanced practice clinicians, Join Dan Mulholland and Charlotte Jefferies on March 19-20, 2015 in Orlando for the Advanced Practice Clinicians Workshop.