Question: I recently heard someone in the credentialing industry state that we have to provide medical staff hearings within 14 days of a suspension in order to qualify for Health Care Quality Improvement Act immunity.  Is this true?  Do we need to make Bylaws changes?

Answer: No.  Though there is language that speaks of “14 days” in the HCQIA, that language does not require health care facilities to hold hearings within 14 days in order to qualify for immunity.

The HCQIA specifies that, as a condition of immunity, professional review actions must be taken “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances.”

The statute goes on to describe the steps health care entities may take in order to meet the “adequate notice and hearing requirement,” including providing notice of the reasons for the proposed action, the right to request a hearing, and at least 30 days to request the hearing, the right to be represented by an attorney at the hearing and to have a record of the proceedings, among other things.

Lastly – and most importantly for your question – the statute provides three exceptions to the notice and hearing requirements.  Specifically, the statute states that it should not be construed as requiring a hearing where (1) there is no adverse professional review action, or (2) where a suspension of not longer than 14 days is implemented while an investigation is conducted to determine whether a professional review action is needed.  In addition, the statute states that it does not preclude “an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such action may result in an imminent danger to the health of any individual.

In our experience, health care entities and their medical staff leaders are simply unable to conduct investigations within 14 days and, even if they could do so, are unwilling to implement immediate suspensions when there is not an imminent threat to the health or safety of an individual.  Accordingly, of the three options listed above, it is our experience that hospital leaders make use of only numbers (1) and (3).  Accordingly, the leaders of hospitals and their medical staffs either (1) conduct peer review, investigations, and hearing procedures prior to implementing a proposed adverse action, such as a suspension or (2) implement a precautionary suspension immediately because an imminent threat has been determined to exist.  In either case, a 14-day hearing requirement would not apply.

In Som v. Bd. of Trustees of Natchez Regional Med. Ctr., the court noted, in passing, that the physician was a hospital employee – so why was the physician given a medical staff hearing?  WHY NOT ADDRESS THIS ISSUE UNDER THE employment AGREEMENT?  The court doesn’t say.

However, we have some ideas that we would like to share that we think will prevent a similar law suit.  Join Henry, Rachel and Charlie in Scottsdale on October 4-6 for the “Institute on Employed Physicians and Their Impact on the Medical Staff.”