QUESTION: Our Medical Staff Bylaws contain a provision stating that Medical Staff members automatically relinquish their appointment and clinical privileges if they lose their license or fail to meet other threshold eligibility criteria. Do we have to report such automatic relinquishments to the National Practitioner Data Bank (“NPDB”)?
ANSWER: You do not. 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. This includes, among other things, failure to meet any threshold eligibility criteria that are required for appointment and clinical privileges. When a member’s appointment and privileges are automatically relinquished pursuant to such a provision, 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 that addresses this specific situation (See page E-47):
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.
QUESTION: The case description in McGary v. Williamsport Reg’l Med. Ctr. references the fact that a hospital “denied” a physician’s application for failure to meet threshold eligibility criteria. Is that really a “denial”? Isn’t there a better way?
ANSWER: YES, there is a better way. Medical Staff bylaws or credentials policies should clearly incorporate the concept of “eligibility” to apply for appointment and/or clinical privileges and should include a comprehensive list of objective eligibility criteria that must be met in order for an applicant to be considered eligible. The threshold eligibility criteria should address both appointment qualifications (things like not having had a license revoked by a state agency) as well as privilege qualifications (things like the volume requirements at issue in the case, or additional certifications). The provision should clearly allow for the determination that an applicant is not eligible for appointment and state that applications from individuals who do not meet the threshold eligibility criteria will not be processed.
Incorporating such a step into the bylaws would require that individuals who request applications be sent a request for application form that outlines, in detail, the threshold eligibility criteria for appointment, and requests that the applicant provide proof that he or she meets those threshold criteria. Alternatively, if the idea of incorporating a two-step request for application process is too onerous, this could also be accomplished by sending a detailed cover letter with the application form that sets out the eligibility criteria. Those individuals who do not meet the “threshold” criteria for Medical Staff appointment and clinical privileges should be informed that they are ineligible to receive an application or to apply for staff appointment and privileges. The bylaws should also clearly state that a determination that someone is ineligible to apply is not a “denial” of appointment that entitles the individual to a hearing, nor is it reportable to the state licensure agency or the National Practitioner Data Bank.
QUESTION: We have a family physician who recently applied for colonoscopy clinical privileges at our hospital but is ineligible because he does not meet the threshold eligibility criteria for those privileges. Our criteria require, among other things, all applicants to demonstrate competence through the performance of 140 colonoscopies in the last two years or during their training. The physician is requesting that we change this criterion, claiming that it is too high and inconsistent with the American Academy of Family Physicians (“AAFP”) guidance on determining competency for colonoscopies. What should we do?
ANSWER: First, check your Medical Staff policies to determine how an applicant for clinical privileges who does not satisfy threshold eligibility criteria should be handled. Medical Staff policies (typically, your Credentials Policy) should explicitly state that “applicants who fail to meet the threshold eligibility criteria will be notified that their applications will not be processed” and that “a determination of ineligibility does not entitle the individual to a hearing and appeal.” This applies to both applications for Medical Staff appointment and clinical privileges. Thus, the family physician would be ineligible for a grant of clinical privileges to perform colonoscopies based on the hospital’s current threshold eligibility criteria.
However, in this case, there is a wrinkle since the physician is asking for a change in the criterion. While you are under no obligation to change the criteria, especially if it is based on a thorough review of the literature, the needs of the community where the hospital is located, and is used in conjunction with other patient-safety-oriented criteria, it may be worth looking into the physician’s claims. In this case, the physician is correct. In a colonoscopy position paper, the AAFP states as follows: “[b]ased upon recent studies, the AAFP has determined that the standard of fifty (50) cases as the primary operator be used as a basis for determination of basic competency in [colonoscopy].” But, as the AAFP paper observes, the American Society for Gastrointestinal Endoscopy (“ASGE”) recommends that a physician perform 140 colonoscopies as a minimum number before competency can be assessed. Obviously, this higher number favors specialists who perform colonoscopies as a primary part of their practice. That doesn’t necessarily mean that the number isn’t legitimate.
The recommendations from the various specialty societies when it comes to the number of procedures needed to assess competency aren’t hard and fast rules. As the ASGE notes: “[p]erformance of an arbitrary number of procedures does not guarantee competency. Whenever possible, competence should be determined by objective criteria and direct observation. The number of supervised procedures necessary to obtain competency will vary tremendously among trainees.” Of course, this statement from the ASGE implies that some trainees may need to perform more than 140 colonoscopies to guarantee competency (but the opposite may be true as well). Whatever number your hospital decides on in setting criteria for clinical privileges should be supported by thorough research and sound reasoning. At a minimum, you should explore what the relevant specialty societies are recommending, acceptable complication rates (and how to incorporate this into the criteria for the clinical privileges), and the type of training needed to support the request. Other areas of consideration include what hospitals in similar situations require and the needs of the community. Most importantly, if there is any doubt, criteria should set thresholds which err on the side of caution to protect patients and to ensure that only competent physicians are performing procedures on patients.
QUESTION: We have just received an application for Medical Staff appointment from a physician who has a history of alcohol abuse that caused him to lose his license. While his license has been reinstated, how should we deal with the fact that at one point in time he lost his license?
ANSWER: First check your Medical Staff Bylaws. Many bylaws have threshold eligibility criteria that not only require that an applicant possess a current, unrestricted license, but also require that an applicant have never had his or her license to practice revoked or suspended by any state licensing agency. Such an eligibility criterion would render this physician ineligible to apply for appointment.
However, that does not end the inquiry. Most bylaws also have a process that may be followed to obtain a waiver of the threshold eligibility criteria. If the physician wants to attempt to qualify for a waiver, he or she should be required to request a waiver in writing and provide the MEC with such information as the MEC may require to determine whether granting a waiver is in the best interest of the hospital and the community it serves.
The MEC should be reasonable and keep in mind that past alcohol or drug use is protected by the ADA. However, that does not alter the fact that the burden remains on the applicant to satisfy the hospital’s eligibility criteria and, if requesting a waiver, to establish a reasonable basis for the requested waiver. Whether a waiver is granted is discretionary, the burden remains on the applicant, and an application is incomplete and should not be processed unless the waiver has been granted.