Author: Courtney Patterson

December 5, 2025

Posted on by Courtney Patterson

QUESTION:
At the Complete Course for Medical Staff Leaders, you mentioned the importance of transparency and meaningful notice to applicants, members of the medical staff, and other practitioners who have been granted privileges.  What is the obligation to send written notice to an applicant that a waiver process is available, a waiver request has been granted, and/or a waiver request has been denied?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Transparency in medical staff affairs is not only about ensuring medical staff members and other practitioners with privileges have access to Medical Staff Bylaws and other medical staff policies and rules and regulations, and are notified to any major changes to those documents.  It also includes providing meaningful and timely notice to applicants and practitioners about matters involving their credentialing and peer review.  This includes providing notice that an application is not going to be processed, as well as the reason why (whether it’s because the applicant has requested clinical privileges that are not available at the hospital, because the applicant does not satisfy the threshold eligibility criteria set forth in the Medical Staff Bylaws or Medical Staff Credentials Policy, or because the application is incomplete – to name just a few reasons).

Many hospitals and medical staffs choose to include in the Medical Staff Bylaws (or Credentials Policy) a process for requesting a waiver of one or more of the threshold eligibility criteria, in the event an applicant fails to satisfy the criteria and nevertheless wishes to receive additional consideration and have an application subjectively considered.  Generally, waivers are considered only if the applicant provides substantial evidence showing that there are exceptional circumstances and that the applicant’s qualifications (clinical performance, professionalism, etc.) are just as exceptional, if not more, than other individuals who satisfy the criteria for which the applicant is requesting waiver.

While most hospitals and physician leaders agree that it is important to notify the applicant if a waiver request is denied, we are occasionally asked whether it is necessary to provide the reason for the denial.  Provided you have good waiver language written into your Bylaws/policies, the burden is on an individual requesting waiver to demonstrate that waiver is appropriate and an exception to the general rule of non-eligibility/ non-consideration should be made.  Therefore, if the MEC and Board have determined that the applicant has not met the burden of demonstrating they are an appropriate candidate for a waiver, it should suffice to simply state that after considering all of the information submitted by the applicant, the Board determined that a waiver is not appropriate and, in turn, the application cannot be processed further.

Should you also notify an applicant in writing if a waiver is granted?  This question is rarely asked since, in most scenarios, the applicant is happy to receive a waiver and, in turn, there are rarely disputes about waivers that have been granted (rather than denied).  Nevertheless, there are a couple of reasons that you may wish to consider providing notice to the applicant when you grant a waiver:

  • First, whenever a waiver is granted (or denied), it is a good idea to articulate and document the reason, in order to create institutional history of all waivers that have been considered and the outcome. This is important for tracking whether the hospital is methodically upholding the threshold eligibility criteria and for ensuring consistency with respect to any waivers granted/denied (e.g., are similarly situated requestors being treated similarly?).  Ultimately, an eligibility process is administrative – rather than subjective – only if the threshold eligibility criteria are objective and those criteria are applied consistently to individuals.  So, having a record of consistent application helps the hospital in the long run.  Of course, you could create the documentation through meeting minutes or other records of the action taken.  But, in our experience, the articulation/documentation of waivers often falls through the cracks.  Adopting a process of notifying the applicant whenever a waiver is granted might help to close that gap.
  • Perhaps more importantly, however, notifying an applicant of the grant of a waiver also provides an opportunity to document (and inform the individual) of any time limits or other conditions associated with the waiver.

For example, if an individual is granted a waiver of an MOC (maintenance of board certification) requirement due to an exceptional circumstance that prevented them from completing the MOC requirements during their previous appointment term (e.g., extreme illness or family emergency), the hospital might grant a short-term waiver (e.g., one appointment term), to be revisited at the time of the next reappointment cycle.  If the waiver will be temporary, rather than permanent, it is important to notify the applicant/practitioner so that they will have realistic expectations and not be caught off guard when the criterion is applied in the future.

The same is true for any conditions that may attach to the waiver.  For example, if you have decided to grant a waiver of a threshold eligibility criterion requiring recent clinical experience exercising the requested privileges in a facility of comparable acuity, that waiver might be conditioned on the individual complying with a re-entry plan that includes continuing medical education and/or observation/shadowing to be completed prior to commencing clinical activities at the hospital, requirements for proctoring, consultation, or serving as an assist when initially commencing clinical activities at the hospital, and/or other FPPE activities.  If the waiver is conditional on the applicant agreeing to – and complying with – those conditions, it is important to notify the applicant and make it clear that the waiver may be forfeited (with the individual then failing to be eligible for continued medical staff appointment/privileges) if they do not comply.

If you have a quick question about this, e-mail this week’s editor, Rachel Remaley, at rremaley@hortyspringer.com.

November 20, 2025

Posted on by Courtney Patterson

QUESTION:
A patient recently presented to our hospital with a pet turkey, claiming it as a service animal.  Do we have to allow the turkey into our facility?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
There are only two ways that a hospital can legally be required to allow a patient to bring an animal into the hospital:  (1) if it is a service animal, and (2) depending on state and local law, if it is an emotional support animal.

Service Animals
The Americans with Disabilities Act (“ADA”) requires that local governments, businesses, and nonprofits that service the public allow service animals to accompany individuals with disabilities into their facilities.  As long as the public is allowed in a certain part of a facility, the service animal is also permitted to go.  The ADA even specifically states that hospitals must generally allow service animals anywhere in the hospital the public and patients are allowed to go, including patient rooms.

The ADA has narrowly defined “service animal” to mean “dogs that are individually trained to do work or perform tasks for people with disabilities.” The ADA also has a special exception to this definition that specifies that miniature horses, who are trained to do work or perform tasks for people with disabilities, can also qualify as service animals.

Unfortunately for turkeys – who may have excellent gobbling skills but questionable bedside manner – there is no similar exception.  Even the most disciplined, Harvard-educated turkey could never legally qualify as a service animal.  Tough break, birds.

Emotional Support Animals
There is no ADA requirement that mandates facilities allow emotional support animals indoors.  However, some state and local governments have laws that allow individuals to bring emotional support animals into public spaces.  So, before you issue an all-out ban on emotional support animals, double check state and local laws to see if there are any rules on emotional support animals and the parameters on what qualifies as an emotional support animal.

So, unless you live in a state where state and local laws say otherwise about emotional support animals, your hospital can turn away our feathered friends at the door.  They may protest with some dramatic gobbling, but legally, you’re still in the clear.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

November 13, 2025

Posted on by Courtney Patterson

QUESTION:
We just found out that a member of our Medical Staff was arrested and charged with domestic battery, assault, terroristic threats, and unlawful possession of a firearm.  The charges were brought by the physician’s now ex-girlfriend.  Pictures of the girlfriend are floating around, and they were pretty bad.  The physician swears it was all in self-defense and that his girlfriend “lost her mind” when he tried to break up with her.  What do we do?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Ideally, your Bylaws, or Credentials Policy, include language which allows you to trigger an administrative relinquishment in a situation like this.  Specifically, we recommend the Bylaws provide:  “The occurrence of specific criminal actions, including an arrest, charge, indictment, conviction, plea of guilty or plea of no contest, pertaining to any felony or any misdemeanor involving…a violent act will result in an automatic relinquishment of appointment and clinical privileges.”

This languages allows you to effectively address the situation without imposing a suspension, triggering an investigation, or making a recommendation for an adverse professional review action.  If the charges are dropped, the physician can seek reinstatement from the relinquishment.

The automatic relinquishment language works so well that we recommend including it in the Bylaws, or Credentials Policy, to address other sticky situations including:  (1) failure to complete medical records; (2) failure to satisfy threshold eligibility criteria; (3) failure to provide requested information; (4) failure to attend a mandatory meeting; (5) failure to complete or comply with training or educational requirements; and (6) failure to comply with a request for fitness for practice evaluation.

If you don’t have language in your Bylaws Documents that would allow you to trigger an automatic relinquishment, you may try to get the physician to take a leave of absence, or to voluntarily agree to refrain from practicing while the criminal matter is playing out in the courts.  In situations like this, the physician is often focused on the criminal charges and may be willing to resolve the medical staff issue in a nonconfrontational way.

If this doesn’t work, you may have to consider disciplinary action, including a precautionary suspension, investigation, recommendation to revoke appointment and privileges, and a hearing and appeal.  This course of action may be needed not only to protect patients and staff, but also to protect the reputation of the hospital and the medical staff.

It is extremely unlikely that the physician’s criminal defense counsel would allow the physician to participate in these processes.  However, it is important that you adhere to your Bylaws Documents and offer all the process the Bylaws promise.

If you have a quick question about this, e-mail Susan Lapenta at SLapenta@hortyspringer.com.

November 6, 2025

Posted on by Courtney Patterson

QUESTION:
When a concern is raised about the behavior of a Medical Staff member, we’ve typically referred it to our department chairs to handle.  Some chairs do a really good job addressing these issues while others, well, let’s just say they struggle.  We were wondering if there’s a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes!  There are multiple drawbacks to asking a single individual – regardless of who that person is – to deal with difficult behavioral matters.

First, the department chair is often either a competitor or partner of the physician under review.  This can make it difficult for the department chair regardless of whether an actual “conflict of interest” exists.  Also, depending on the size of a department, the department chair may not deal with many behavioral concerns.  As a result, the chair never obtains enough experience to become truly comfortable addressing behavioral issues.  Finally, as your question might be hinting at, not all department chairs are created equal – some may have great leadership qualities, and some may be serving only because it’s a role that they are forced to rotate through in a particular department.

The bottom line when it comes to behavioral issues – especially ongoing patterns of conduct – is that it requires leadership expertise to address, not clinical expertise.  For that reason, we recommend appointing a small core group of experienced leaders – often referred to as a Leadership Council – to handle behavioral concerns.  The Leadership Council might be comprised of the Chief of Staff, Vice Chief of Staff, Chair of the Peer Review Committee, and the Chief Medical Officer.  Regardless of what it’s called, the advantages of using a Leadership Council approach to handle behavioral concerns include:

  • consistency across departments (no more variability based on the personality and leadership skill set of individual department chairs);
  • easier to avoid conflicts of interest;
  • permits department chairs to preserve their working relationships with physicians under review;
  • expertise through experience;
  • emphasizes the importance of the issue and enhances the credibility of the physician leadership because a group of seasoned leaders – not a single person – is speaking with the physician under review; and
  • problems are discussed by a small and nimble group, which promotes the exchange and development of ideas on a real-time basis.

If you have a quick question about this, e-mail LeeAnne at lmitchell@hortyspringer.com.

October 30, 2025

Posted on by Courtney Patterson

QUESTION:
Are the CMS telehealth flexibilities gone for good?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
On September 30, 2025, many of the pandemic-era Medicare telehealth flexibilities expired.  This included such provisions that allowed Medicare recipients to receive non-behavioral/mental health care in their homes and removed geographic restrictions on originating sites for such services.  With their expiration, the statutory limitations that had been waived during the COVID-19 public health emergency are now back in effect.

Since the end of the COVID-19 public health emergency, Congress has repeatedly extended telehealth flexibilities to allow time for further consideration of their permanence. In September, several bills were introduced to extend the remaining flexibilities for periods ranging from seven weeks to two years, aiming to prevent a “telehealth cliff.”  Unfortunately, before any action could be taken, the government shut down.

Since the expiration of the flexibilities, we have not heard much in terms of next steps for telemedicine.  So far, CMS has indicated that practitioners who choose to perform telehealth services that are not payable by Medicare on or after October 1, 2025, may want to consider providing beneficiaries with an Advance Beneficiary Notice of Noncoverage (“ABN”).  CMS has also noted that practitioners may choose to hold claims associated with telehealth services that are currently not payable by Medicare in the absence of Congressional action on the flexibilities.

When the government reopens, we will be watching closely to see what, if any, action Congress takes to reup some of these flexibilities or make them permanent. Unfortunately, for the time being, to guarantee payment, healthcare entities need to provide telehealth services within the confines of what CMS billing rules require, which means without many of those flexibilities we have become accustomed to. CMS issued an updated list of FAQs earlier this month to help sort through many of the changes.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

October 23, 2025

Posted on by Courtney Patterson

QUESTION:
We’ve been sending our Medical Staff leaders to your seminars for years.  However, we think it might be helpful for our “rank and file” Medical Staff members to also get some education on issues like why professionalism counts – and how it could send their careers down the drain if they don’t mind their p’s and q’s. Is this type of education available from HSM?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
It is.  While most of our educational offerings (seminars, on-sites, webinars, etc.) are focused on Medical Staff leaders, we have also worked with hospitals and systems to develop tailored educational programs for the general members of their Medical Staff.

Sometimes these programs are integrated into a regularly scheduled Medical Staff meeting, but we’ve also been asked to create specialized programs that are presented (sometimes multiple times over the course of several days) as stand-alone educational sessions that allow general Medical Staff members the opportunity to obtain CME on topics such as EMTALA, impairment issues, and (of course) why professionalism counts.

If this type of specialized training could benefit your Medical Staff, please reach out to our Program Coordinator Jennifer Skeel. Jennifer can work with you and one of our attorneys to develop a tailored program for your organization.

If you have a quick question about these educational programs, you can also e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

October 16, 2025

Posted on by Courtney Patterson

QUESTION:
I serve on the peer review/MEC in one hospital system and as department chair at another regional system.  A physician is under FPPE for very serious patient safety concerns at the first system, and he has now applied for privileges at the second system (where I am department chair).  I don’t think I can divulge any protected information I have knowledge of.  What can I do?  (Registrant Q&A, submitted electronically at The Complete Course for Medical Staff Leaders, held in Nashville (Spring 2025).)

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
You are in quite the pickle!  To avoid this scenario, we have historically advocated for Medical Staff leaders to avoid, if possible, serving in leadership roles at multiple nearby hospitals.  But, we understand that leadership pools are shallow and leadership functions are being performed by a very small minority of do-gooders within medical communities.  Further, we observe that it is quite common for medical directors of hospital-based services to serve as department chairs at multiple facilities.

Luckily, you can likely find a solution to your conundrum that will allow you to satisfy your obligation to protect patients at system #2 (where you are department chair), while also fulfilling your duty of loyalty and confidentiality to the first system (where you serve on the peer review committee and MEC).

Specifically, in a situation such as this, the best way forward may be to take action to cause system #2 to make a request to system #1 for information concerning the practitioner in question.  In other words, as department chair at system #2, you could – as part of your evaluation of the application in question – contact system #1 to request an updated affiliation verification or an updated reference (for example, from the department chair and/or CMO at system #1).

You would not need to specify the exact reason for asking for the information.  It should suffice for you to state that, as department chair, you believe it is appropriate and necessary to request further information about the practitioner’s tenure at system #1 (if pressed, you should not have to say anything more than “confidentiality requirements prohibit me from providing any additional explanation”).  Of course, to avoid any appearance of impropriety or any allegation that you inappropriately divulged protected or privileged information, it is probably best to have the request for information from system #1 occur in writing (rather than via a telephone call or in-person conversation).  From a practical perspective, that might mean contacting the Medical Staff Services Department at system #2, to let them know that you recommend system #1 be contacted for more information regarding the physician’s affiliation.

Note that any request for information that is sent should be worded broadly enough to ask not only about any adverse professional review actions (e.g., revocations, suspensions, restrictions), but also any other recent or pending focused reviews of the practitioner and/or performance improvement plans involving the practitioner.  With this step taken, there would be no need for you to violate any confidentiality requirements that apply at system #1 by revealing additional details.  You could simply sit back and wait for the reply from system #1.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

October 9, 2025

Posted on by Courtney Patterson

QUESTION:
What’s the status of the Federal Trade Commission’s non-competition rule?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
In April 2024, the Federal Trade Commission (“FTC”) finalized a rule that banned most non-competition clauses nationwide.  However, federal courts in Texas and Florida issued injunctions and blocked the FTC from enforcing the rule.  The FTC appealed those rulings, but in September 2025, the FTC withdrew its appeals of the injunctions.  So, the ban is no longer in effect and the FTC is no longer trying to enforce it.  The below is from the FTC’s website:

The Noncompete Rule is not in effect and it is not enforceable.  On August 20, 2024, a district court issued an order stopping the FTC from enforcing the rule.  The FTC appealed that decision on October 18, 2024.  On September 5, 2025, the FTC took steps to dismiss its appeal in the Fifth Circuit.

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.

October 2, 2025

Posted on by Courtney Patterson

QUESTION:
We are working on updating our informed consent forms.  Can you remind us what an informed consent form should include?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Informed consent is essential to providing high-quality, ethical care, so I commend your efforts to review and improve your forms.  In nearly every state, the treating provider is responsible for ensuring the patient understands:  (1) the item or service being provided; (2) the associated benefits and risks; and (3) any reasonable alternatives.  This explanation must be delivered in a manner the patient can understand.  In some states, failure to obtain informed consent may expose the provider to liability if the patient is harmed by the treatment – so it’s important to review your specific state laws.

Under the Medicare Conditions of Participation, the patient’s medical record must include documentation of informed consent for procedures that require it – either under federal or state law or by your facility’s medical staff policies.  The Medicare Conditions of Participation Guidelines offer a detailed explanation of what a properly executed informed consent form should look like.  At a minimum, your consent forms should include:

  • The name of the facility where the care is going to take place;
  • The name of the procedure or treatment for which consent is being given;
  • A statement that the procedure or treatment, including the anticipated benefits and material risks, and alternative treatments, was explained to the patient or the patient’s legal representative;
  • The signature of the patient or their legal representative; and
  • The date and time the informed consent form is signed by the patient or their legal representative.

CMS also recommends including the following elements to strengthen your informed consent documentation:

  • The name of the practitioner who conducted the informed consent discussion;
  • Date, time, and signature of the person witnessing the patient or their legal representative signing the consent form;
  • An indication or listing of the benefits and material risks of the procedure or treatment discussed; and
  • A statement that physicians and non-physician practitioners, other than the operating practitioner, including residents, will be involved in the care of the patient and will perform important parts of the procedure or treatment, as allowed under state law and regulations, in accordance with the clinical privileges granted and/or scope of practice.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.

September 18, 2025

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, our Credentials Committee recommended the appointment of an applicant who had several very concerning red flags in his file including a questionable reference, employment termination, and a gap in his professional practice.  The Committee decided to interview the physician and was persuaded by his explanation which, in my assessment, amounted to blaming his former employer for a lack of commitment to quality.  I dissented and asked that my vote be recorded in the minutes.

I just learned that the Credentials Committee’s recommendation was placed on the consent agenda for the Medical Executive Committee (MEC) and the Board.  In our hospital, this means that none of the red flags were raised for review by the MEC or the Board.  Needless to say, the applicant was granted appointment and clinical privileges.

When concerns are raised about an applicant, shouldn’t these be brought to the attention of the MEC and the Board?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
There’s a lot to unpack in your question.  Let’s start with whether the Credentials Committee did its due diligence in reviewing the red flags you noted.  While there is nothing inappropriate with the Credentials Committee interviewing the applicant, the Committee should have done its homework first.  For instance, information should have been sought from the physician who provided the questionable reference.  Information about the termination should have been sought from the employer.  And, the physician should have been asked to explain the gap in his professional experience.  We recommend that all of this happen before the Credentials Committee reviews the application or interviews the applicant.

If we assume that this information was obtained, and the Credentials Committee was comfortable with the information received, and wanted to make a favorable recommendation, the red flags still should have been recorded and made available to both the MEC and the Board.

Every hospital handles their credentialing reports for initial appointment and reappointment in a slightly different way.  A consent agenda is not an unreasonable approach when the application is clean.  However, when an application is not clean, there should be an issues list, a summary, or a profile that is provided to members of both the MEC and the Board so they can make an informed decision.  If I were a Board member, I would be upset to learn that I was kept in the dark about issues that had been identified regarding an applicant.

Deciding how much information to provide to the MEC and Board requires a delicate balance.  Most hospitals expect the Credentials Committee to do the heavy lifting in reviewing applications and to make well-informed recommendations.  With that as a starting point, the MEC and the Board do not need to see the complete file of every applicant.

Providing the MEC and the Board with too much information can slow down the credentialing process and distract them from their other important functions.  But if the MEC and the Board do not have any meaningful information, it will be virtually impossible for them to make informed decisions.

In striking the balance in terms of what information should be provided to the MEC and the Board, consider the following:

  • Licensure actions, including: subject to investigation, previously subjected to restrictions, conditions, terms of probation, licensed in a state applicant never practiced;
  • Work history, including: unexplained gaps in work history; relocated multiple times in short period; subject to focused review or investigation;
  • Employment history, including termination with or without cause; and
  • Malpractice history, including: cases that involve unexpected death or serious injury or a pattern of malpractice judgments or settlements that is unusual for clinical specialty.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.  Join us later this fall for our new podcast “Crash Course in Credentialing” during which we will discuss a variety of challenging credentialing topics.