June 13, 2019

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.

December 14, 2017

QUESTION:        Our Medical Staff Bylaws require, as a threshold eligibility criterion, that an individual be board certified or become board certified within five years of joining the medical staff.  A long-time medical staff member, about whom we have no quality concerns, recently allowed his board certification to expire.  We notified him that he needs to recertify or will not be eligible to apply for renewal of appointment at the end of his current term.  He said that he does not read the Bylaws that way and since he was board certified within five years of joining the medical staff, he satisfied the threshold criterion related to board certification.  Is he right?  We’ve always enforced the board certification requirement as requiring current certification.

ANSWER:            Board certification has certainly become a contentious issue lately.  There is no universal best practice regarding whether to require recertification or maintenance of certification – but what is important is that the Medical Staff Bylaws and related documents (such as the Credentials Policy, if you use one) be clear regarding what is required, so that no medical staff member will be caught off guard and the leadership will not have to spend its time engaged in disputes over interpretation.

The intention in your Bylaws language is clear to me (and probably everyone else who works in medical staff leadership and credentialing).  When the Bylaws language was drafted, it was clearly meant to require current board certification by members, but to create an exception for those who are new to the organization, to give them time to “get up to speed” with your requirements.  From a technical standpoint, however, any medical staff member could argue that he or she only needs to meet one of the requirements set forth in the applicable threshold criterion.  That is, they either need to be board certified OR achieve certification within five years.  Clearly, the physician at issue in your case is taking advantage of the way the provision was drafted to argue that he has satisfied the second requirement and, in turn, has fulfilled the certification requirement indefinitely (without any need to recertify or maintain certification).

So, can you enforce the requirement that individuals be currently board certified based on your existing language?  The answer is not entirely certain.  If you have a set precedent of consistently interpreting your Bylaws language as requiring certification that is current – and applying the five year exception provision only to new members of the medical staff – there is a good chance that you can take the position that the Bylaws language requires current certification.  Nevertheless, because collegiality, transparency, and fairness are important in credentialing, it may make sense to at least consider whether the current situation can be dealt with in a way that pleases everyone.  Could a one-time waiver be granted, thus allowing the physician whose certification has lapsed one additional appointment term to recertify?  Doing so may keep the peace while the leadership works to adopt Bylaws language that clarifies this matter for everyone.

To that end, at this point, it would be wise to update the language of the Medical Staff Bylaws to more clearly state any requirements for recertification and/or maintenance of certification and to specify how lapses will be managed (immediately or at reappointment, for example).  Further, most hospitals and medical staffs have, in recent years, moved away from Bylaws language requiring certification within a number of years after joining the medical staff.  Consider instead adopting language stating that if an individual is not certified, but completed his or her training within the past [X number] of years, he or she will be eligible, but must become certified prior to that deadline or will become ineligible for renewal thereafter.

February 16, 2017

QUESTION:        Our Medical Staff Credentials Policy has a detailed list of threshold eligibility criteria.  In the provisions that deal with criminal histories, the policy mentions felonies and misdemeanors that involve “moral turpitude.”  What’s moral turpitude?

ANSWER:            Moral turpitude is a broad term that can be used to refer to a variety of crimes.  Black’s Law Dictionary defines moral turpitude as “conduct that is contrary to justice, honesty, or morality.”  The State Department’s Foreign Affairs Manual explains that the most common elements of moral turpitude are “(1) Fraud; (2) Larceny; and (3) Intent to harm persons or things.”  Blended together, you might say that moral turpitude refers to acts which clearly involve fraud, larceny, or an unjust attempt to cause serious harm to persons or property.  If you have any one of those three ingredients, you’re most likely dealing with an act of moral turpitude.

Be prepared for applicants who try to hide their questionable criminal history by twisting the meaning of “moral turpitude” or understanding it in a very narrow sense.  For example, maybe an applicant has been convicted of crimes relating to the possession of controlled substances.  This person might argue that his conviction didn’t involve moral turpitude, because he didn’t obtain the controlled substances by fraud, didn’t steal them, and didn’t intend to hurt anyone else by using them.

For this reason, keep in mind that “moral turpitude” is not a catch-all term and won’t patch up a set of poorly-drafted threshold eligibility criteria.  However, we do recommend including it in your policies, because it encompasses a wide variety of criminal conduct that could reflect negatively on a person’s suitability for Medical Staff appointment.  As a best practice, consider calling out other specific categories of offenses, such as criminal possession of controlled substances, so that you get a full picture of an applicant’s background.

While we always advise our clients to adopt robust eligibility criteria and to set a high standard for their Medical Staff, we recognize that criminal backgrounds can be a controversial subject and that institutions will have different perspectives on the matter.  The most important thing is to ensure that your policies reflect your values and your goals.

February 9, 2017

QUESTION:        Our Credentials Committee recently considered a request for a waiver, submitted by a physician who does not satisfy our threshold criteria for appointment.  A few years back, this physician pled guilty to a felony battery charge, which ultimately led to a downward spiral in which he violated a restraining order and had his probation revoked.  The physician was forthcoming about his criminal background when he submitted his application, though his explanation largely deflected blame for the matters leading up to his arrest, guilty plea, and probation violation.

Before processing the physician’s request for a waiver, the Chief of Staff and CMO have recommended that the physician be required to provide substantial information (including arrest and/or court records) regarding these matters.  The Chair of the Credentials Committee disagrees and believes that the Credentials Committee, which has the responsibility pursuant to the Medical Staff Credentialing Policy to consider and make recommendations regarding waivers, should simply talk with the physician to get his side of the story and, if any questions remain after that, decide whether to ask for additional information.  Who is right?

ANSWER:            Most Medical Staff Bylaws or Credentialing Policies call on the Credentials Committee to consider and make a recommendation on requests for waivers of threshold eligibility criteria.  Often, the Credentials Committee is given broad discretion regarding what information to consider when reaching its recommendation.  And, as the individual charged with planning the agenda and activities of the Credentials Committee, the Chair would have the ability to exercise much discretion in determining how the committee would go about considering any request for a waiver.

The Credentials Committee may wish to review the application (or preapplication) submitted by the individual or any explanation submitted by the individual in conjunction with his or her request for a waiver.  It may also wish to speak with the individual regarding the waiver request and the circumstances that led to the individual being ineligible.  Therefore, the Chair’s expressed preference for talking with the individual is not totally out of line.

However, in almost any circumstance where a waiver is to be granted, the Credentials Committee is going to want to also verify the facts with third parties – to corroborate the story that is being told by the individual requesting a waiver.  The only exceptions to this would be when the circumstance is so obvious that no verification is required.  This may be the case, for example, if the individual does not have a coverage arrangement with another member of the medical staff, but explains that this is because no one else is practicing in the subspecialty in which he or she is requesting privileges.  Another example would be an individual whose office or residence is farther from the hospital than required by Hospital policy, in which case the individual may simply be providing the relevant addresses and explaining why the small discrepancy in distance will not affect his or her ability to respond appropriately to patients.

In the case at hand, where the individual is requesting a waiver related to his criminal history, it is hard to imagine any scenario where the Credentials Committee, MEC, or Board could proceed in processing the request for a waiver without verifying the facts of the matter from third party sources.  If the medical staff leaders or hospital failed to conduct this verification, how could they later justify such inaction (for example, in a court case brought by a patient or staff member who alleged to have been harmed by the physician’s conduct)?  Merely taking the physician’s word for it seems especially unreasonable in light of the fact that his original explanation deflected blame.

So, who is right in this situation – the Chief of Staff and CMO (who want to request written documentation) or the Chair of the Credentials Committee (who wants to talk with the individual requesting the waiver)?  In the end, the answer is that both of them are right in some ways.  It is the Chair of the Credentials Committee who ultimately decides whether the matter gets placed on the Credentials Committee’s agenda and, if so, the information that is gathered in advance of the meeting to assist the Credentials Committee as it talks with the applicant.  But, the committee will not be able to do its job properly without obtaining substantial information to corroborate the physician’s story – and so the Chair would be wise to take the advice of the Chief of Staff and CMO and gather the relevant documents from the individual prior to the Credentials Committee meeting.

September 29, 2016

QUESTION:        Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver.  Only if a waiver is granted by the Board is the individual’s application then processed.  When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER:            Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver).  And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone.  So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria.  To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process.  This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility).  But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

September 15, 2016

QUESTION:        If we inform an applicant that his or her application for appointment or privileges cannot be processed due to the applicant’s failure to satisfy our threshold eligibility criteria, do we need to refund the application fee (since we won’t be processing the application and incurring the costs associated with doing so)?

ANSWER:           As a general rule, application fees do not need to be returned to applicants, no matter whether the application that is submitted is fully processed and appointment and privileges granted or the application is “tabled” at the earliest phase of processing.  The fact is, even when an application is processed very little – such as when the applicant is determined to be ineligible by the Medical Staff Office – there are still costs incurred in processing the application.  To illustrate:

  • if the application is not publically available in electronic form, the time spent by the Medical Staff Office to accept the request for an application and, if applicable, send a copy of the application to the requestor;
  • the time for the Medical Staff Office to review the application after it is submitted, to determine whether it is complete (all questions have been answered, all gaps filled, all explanations provided, all supporting documents submitted);
  • the time for the Medical Staff Office to log in the application to any databases where information regarding applicants and appointees is kept;
  • the time and money to consult with legal counsel, if applicable, regarding the individual’s satisfaction of the criteria set forth in the Medical Staff Bylaws; and
  • the time to prepare a letter to the applicant informing him or her of ineligibility to apply.

In all fairness, some practitioners may feel cheated if they pay a several hundred dollar application fee only to find out that they are ineligible to have an application processed fully because of an objective threshold criterion (for example, lack of board recertification, conviction of a particular crime, etc.).  Much of this can be prevented by posting the Medical Staff Bylaws online or sending an electronic copy to anyone who requests an application for appointment or privileges.  That way, the individual will have full access to information about eligibility prior to sending in an application (and prior to paying your non-refundable fee).  Some hospitals also send, along with the application form, a checklist of the threshold eligibility criteria, along with a note informing the requestor that failure to satisfy the criteria on the checklist will result in an application not being processed.  That’s ample notice!

Another way to avoid any confusion, debate, or dispute over the topic of refundability or application fees is to simply adopt Bylaws or Credentials Policy language stating that a non-refundable application fee must be paid prior to any consideration or processing of an application.  The specific use of nonrefundable language makes it clear that no matter how little or how much processing of the application occurs, the fee is the hospital’s to keep.