Author: Courtney Patterson

July 10, 2025

Posted on by Courtney Patterson

QUESTION:
We are having a hard time getting medical staff members who are willing to serve on committees and currently have a significant number of medical staff spots that we need to fill on our infection prevention committee, performance improvement committee, tissue committee, and the pharmacy and therapeutics committee.  One idea was to try and consolidate some of these functions so there are fewer committees.  Is this doable? Advisable?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of the fast answers – (1) likely yes, and if so, (2) absolutely yes!  One of the biggest concerns that we hear being raised these days is that the medical staff leadership pool – whether that means individuals willing to serve as medical staff officers, department chairs, committee chairs, and even committee members – is shrinking dramatically.  Sometimes it’s difficult to populate even the committees that fulfill the primary “medical staff functions” like credentialing, privileging and peer review, often leaving very slim pickings for the ancillary hospital committees.

In terms of whether it’s “doable,” one thing to verify first is what your state hospital licensing regulations may require in terms of medical staff or hospital-specific committees.  While most state regulations just speak in terms of specific functions that have to be fulfilled – often by a committee – some (here’s looking at you Pennsylvania!) do specify a number of separately named committees that hospitals are expected to maintain.

However, in the absence of any regulatory constraints, the manner in which you decide to assign the various functions that have to be met within the hospital to different committees is purely discretionary.  It has become common to see a single overarching “quality committee” that fulfills the functions that used to be performed by separate infection control, P&T, tissue/transfusion, performance improvement, and quality committees.  The key is that you want to ensure that the necessary functions are being fulfilled and that your committees – whether one, two or ten – are organized in such a way as to ensure that occurs.

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

July 3, 2025

Posted on by Courtney Patterson

QUESTION:
In our professional practice evaluation process, we sometimes adopt a performance improvement plan (“PIP”) that includes proctoring, second opinion consultations, and/or prospective case review.  In our PIPs, we try to include the kind and the number of cases that have to be reviewed.

The last several times we have done this, however, the physician stopped practicing at the hospital and never completed the PIP. This has become an issue at reappointment.  Any suggestions??

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question, and it is an issue we see quite a bit.  We have a couple of suggestions for your consideration.  In addition to the number and kinds of cases to be reviewed, it is a good idea for the PIP to include a time frame for its duration.  So, for instance, the PIP might say something like this:

For at least the next ten major gynecology procedures you perform at the Hospital, you must arrange to have a proctor who has clinical privileges to practice at the Hospital (“Proctor”) and who has been approved in advance by the Chair of the Peer Review Committee or the Chief Medical Officer.  The Proctor must be present in the OR before the case is started and must remain in the OR for the duration of the case.

For at least the next six months, the Peer Review Committee will conduct a retrospective review of your major gynecology procedures to evaluate compliance with each element of the PIP.  The Peer Review Committee will share the results of the review with you, and you will be invited to provide input.

At the end of six months, the Peer Review Committee will review the results of the PIP and meet with you to discuss them.  Thereafter, it will recommend whether the PIP has been successfully completed, whether it should be continued or modified, or whether some action consistent with the Medical Staff Bylaws or other Medical Staff rules or policies should be considered.

Although we don’t always include this in the original PIP, you raise a great question about a practitioner who agrees to the PIP but who then fails to actively participate in or complete it.  If you find yourself in this situation, where after the initial term of the PIP, the practitioner has not had any, or very few cases completed, you could adopt a revised PIP with language like this:

It has been more than six months since you agreed to abide by the PIP.  Critically, you have failed to complete any of the clinical components outlined in PIP.  Specifically, you were required to have 10 ten major gynecology procedures proctored.  To date, you have not performed any of these cases.  Therefore, this Revised PIP will be in effect for an additional six months.  If you fail to complete the PIP at that time, such will be accepted as a voluntary resignation of your appointment and clinical privileges.

It is also very important to refer to the PIP if the practitioner is reappointed during its term. Too often, a standard reappointment letter will be sent to a practitioner who is subject to a PIP.  This is not only a missed opportunity to reinforce the existence of the PIP, but it also sends very mixed messages.  So, make sure the department chair, Credentials Committee, Medical Executive Committee, and Board have access to the PIP when they are making reappointment decisions.  The reappointment letter is a perfect place to reinforce the terms of the PIP and provide notice of consequences if the terms of the PIP are not timely completed.

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

June 26, 2025

Posted on by Courtney Patterson

QUESTION:
Can you help with guidelines for taking minutes at a meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes – here are the “Do’s” for taking minutes:

  1. DO – write down the name of the committee that’s meeting.
  1. DO – write down the date of the meeting.
  1. DO – list who’s in attendance, and who’s absent.
  1. DO – list if there are any guests or visitors at the meeting.
  1. DO – note the time the meeting was called to order, who called it to order, and the time it was adjourned.
  1. DO – note whether it’s a regular or special meeting of the committee.
  1. DO – note that if it’s a special meeting, that notice was given to the committee members, and the way notice was given (mail, e-mail, personal delivery, etc.).
  1. DO – note whether a quorum was present (this eliminates the argument that the action of the committee wasn’t valid because of the lack of a quorum).
  1. DO – note whether the previous minutes were read and approved.
  1. DO – note the result of the votes, for example, 7-1 to suspend the physician’s privileges. This is the most important “Do” since the vote is the committee’s action.  If the result of the vote is written down in black and white at the time it’s taken, there is little room to argue in the future that it was inaccurate.

…and here are the “Don’ts”:

  1. Don’t record the details of any discussion. This is the most important “Don’t.”  Sometimes, in the heat of the moment, someone may say something that they don’t mean.  Or that can be misinterpreted.  Or that was meant as a joke, but looks sinister in black and white.  If it’s recorded in the minutes, it’s there forever, and may turn up again.  There isn’t really a need to record the details of a discussion.  What’s important is the vote, the committee’s action.

But, with every rule, there’s an exception.  The exception here is “Do put details of a discussion in if it helps” and it helps when a committee makes an adverse recommendation against a physician.  In that case, the minutes could be your best friend.  The details would allow the committee to record the objective reasons for taking action – physician was disruptive on this date, this date and this date and did this and this and this.  The reasons can be explained, but, comments shouldn’t be attributed to any one individual.

  1. Don’t record how each member voted, unless a committee member wants his/her vote recorded. There’s also an exception to this rule.  When a committee’s going to make an adverse recommendation and a competing physician is on the committee, the minutes should reflect that the conflict of interest principles were followed (Dr. Jones fully answered the committee’s questions, left the room prior to the vote, the vote was taken, and Dr. Jones returned to the room).
  1. Don’t record who made a motion and who seconded them.
  1. Don’t record who said what to someone else.
  1. Don’t record personal remarks unrelated to the committee’s business. For example, when discussion is regarding revocation of privileges, don’t record “Dr. Jones said that Dr. Smith has too many fancy cars.”  The only thing that’s relevant is Dr. Smith’s competence.  So record “The committee recommended that Dr. Smith’s surgical privileges be revoked because of competence concerns.”

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

June 19, 2025

Posted on by Courtney Patterson

QUESTION:
A physician smelled of alcohol and was behaving oddly during rounds.  The physician refused to undergo a screening test, so the Medical Staff leadership imposed a precautionary suspension.  Is there a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Yes!  First, hospitals should have a Practitioner Health Policy that governs health issues affecting privileged practitioners.  Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event.  A Practitioner Health Policy allows Medical Staff leaders to adopt practices and procedures that work in your setting and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above.  The first step is for the Policy to identify who may respond to handle such situations.  We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment.  Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO).  Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues).  This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others.  Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension.  A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague.  A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

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

June 12, 2025

Posted on by Courtney Patterson

QUESTION:
One of the members of our Bylaws Committee said that she heard that we shouldn’t be including our hospital’s Institutional Review Board (“IRB”) in the Bylaws with all of the other medical staff committees even though this is where it has always lived at our hospital.  Is that true?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes.  The federal Food and Drug Administration regulations pertaining to IRBs, 21 C.F.R. §56.101 et seq., define an IRB as “any board, committee, or other group formally designated by an institution to review, to approve the initiation of and to conduct periodic review of biomedical research involving human subjects.”  (Emphasis added.)  The Department of Health and Human Services’ regulations echo the “institutional” aspect of the formal designation of IRBs (45 C.F.R. Part 46).  Federal regulations require the IRB to be a committee formally designated by a hospital’s Governing Board to review biomedical research involving human subjects at the hospital.

This issue gained momentum in research audits performed by both the Office of Human Research Protections and the Food and Drug Administration in the recent past with the relevant agency taking issue with the fact that the hospitals included their IRBs as one of several “medical staff committees” that lived in a medical staff governance document like the medical staff bylaws.  The auditors pointed generally to the regulatory language, that it is an institutional responsibility to maintain an appropriate IRB, not a medical staff responsibility.  As a practical matter, the concern is that (while very unlikely) if the IRB procedures need to be revised because of a regulatory change, the medical staff could refuse to do so, as is contemplated by the amendment process to these rules.  By comparison, if the IRB is a hospital committee, hospital administration and/or the Board could implement a change on its own action.  Again, while the likelihood of a Medical Executive Committee or a medical staff as a whole acting in such an obstructionist manner is very slim, in the eyes of the audit agencies, it is a valid concern.

Therefore, we recommend that the IRB be created by a Board resolution and thereafter function as a committee of the hospital, rather than the medical staff, with its independent authority derived from the Board.  There may be substantial overlap of the IRB membership with that of a medical staff committee.  However, the IRB should be constituted as a separate committee of the Board in accordance with the membership requirements set forth in the federal regulations.

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

June 5, 2025

Posted on by Courtney Patterson

QUESTION:
We are in a two-hospital town and our neighbors across town have become lax with their on-call schedule.  Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient.  Our physicians feel like they’re on call for the other hospital as well as our own.  Do we have to accept these transfers?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:

Unfortunately, the answer is yes.  While a receiving hospital has the right to refuse a request for a “lateral” transfer, if the receiving hospital has “specialized capabilities” (and capacity), then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.”  However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.”  Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient.  This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).  This requirement has put hospitals and on-call physicians in a difficult position and continues to make EMTALA compliance a challenge.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.

May 29, 2025

Posted on by Courtney Patterson

QUESTION:
Can a hospital operating multiple campuses under a single CCN number have an exclusive contract with a physician group to exercise clinical privileges at one campus and an exclusive contract with another group to exercise privileges at another campus?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The guidance we have received over the years has been that if a Medicare‑certified hospital has multiple campuses, clinical privileges cannot be limited solely to one campus.

This guidance is based on reading the Medicare Conditions of Participation and the official Interpretive Guidance issued by CMS in conjunction with the provider‑based rules.  The COPs and Interpretive Guidance state:

42 CFR §482.22 Condition of Participation: Medical Staff
The hospital must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital.

Interpretive Guidelines §482.22
The hospital must have one medical staff for the entire hospital (including all campuses, provider‑based locations, satellites, remote locations, etc.).  For example, a multi‑campus hospital may not have a separately organized medical staff for each campus.  On the other hand, in the case of a hospital system, it is permissible for the system to have a unified and integrated medical staff (hereafter referred to as a “unified medical staff”) for multiple, separately certified hospitals.  The medical staff must be organized and integrated as one body that operates under one set of bylaws approved by the governing body.  These medical staff bylaws must apply equally to all practitioners within each category of practitioners at all locations of the hospital and to the care provided at all locations of the hospital.  The medical staff is responsible for the quality of medical care provided to patients by the hospital.

The provider‑based rules state:

42 CFR §413.65 (d) Requirements applicable to all facilities or organizations.  Any facility or organization for which provider‑based status is sought, whether located on or off the campus of a potential main provider, must meet all of the following requirements to be determined by CMS to have provider‑based status:

***

(2) Clinical services.  The clinical services of the facility or organization seeking provider‑based status and the main provider are integrated as evidenced by the following:

(i) Professional staff of the facility or organization have clinical privileges at the main provider.

This essentially means that while a hospital with multiple campuses could have an exclusive contract that limits the exercise of clinical privileges to members of the group at all campuses and provider‑based locations, an exclusive contract limiting the exercise of privileges to physicians in the contracting group to one campus would not work since other physicians with privileges at the other campuses could claim that they have the right to exercise those privileges system‑wide.

Aside from the CMS rules, a hospital would be bound by exclusivity provisions in existing hospitals, so if there is an exclusive contract in place covering all locations, the hospital would be in breach of contract if it allowed physicians outside the group to exercise clinical privileges at another hospital.

The risk of non‑compliance with this interpretation of the rules is most likely a citation on a survey (either a routine one or one triggered by a complaint) which could be easily fixed by allowing privileges to be exercised at each campus.

Moreover, notwithstanding the rule that privileges extend to each campus, a physician can always choose to only practice at one campus, and if the physician is employed by the hospital or health system, the employer could tell the physician that he or she must limit the exercise of privileges to specific campus(es).

If you have a quick question about this, e‑mail Dan Mulholland at DMulholland@hortyspringer.com.

May 22, 2025

Posted on by Courtney Patterson

QUESTION:
Can we add advanced practice professionals to our on-call schedule for our emergency department?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Short answer:  nope.  Including APPs on the on-call list is prohibited by the Emergency Medical Treatment and Labor Act (“EMTALA”).  Under EMTALA, hospitals with emergency departments are required to provide Medical Screening Examinations to anyone who presents to the hospital seeking emergency care, regardless of their ability to pay.  A key component of EMTALA compliance is the requirement that hospitals maintain a list of on-call physicians who can provide the necessary treatment to the patient.  Specifically, CMS guidelines state, in part:

The list of on-call physicians must be composed of physicians who are current members of the medical staff or who have hospital privileges.  If the hospital participates in a community call plan, then the list must also include the names of physicians at other hospitals who are on call pursuant to the plan.  The list must be up-to-date, and accurately reflect the current privileges of the physicians on call.  Physician group names are not acceptable for identifying the on-call physician.  Individual physician names are to be identified on the list with their accurate contact information.

CMS recognizes that advanced practice professionals, like physician assistants and nurse practitioners, are increasingly integral to emergency department care and, therefore, can perform medical screening examinations as “Qualified Medical Personnel (QMP)” within their scope of practice and in accordance with hospital bylaws.  Moreover, if permitted under hospital policy, the on-call physician may send an APP as the physician’s representative to appear at the hospital and provide further assessment and stabilizing treatment.  However, the on-call physician remains ultimately responsible for providing the necessary care, regardless of who appears in person.

It is also important to note that, in the event the ED physician disagrees with the on-call physician’s decision to send an APP and, instead, requests the on-call physician to present to the ED, then the on-call physician is required under EMTALA to appear personally.  Therefore, it’s recommended that the decision to send an APP be made in collaboration with the ED physician.

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

May 15, 2025

Posted on by Courtney Patterson

QUESTION:
We recently required a member of our Medical Staff to meet with the Medical Executive Committee as an “escalated” step of encouraging this physician to change her behavior that has gone on for a number of years.  She said that she’d be happy to attend the meeting, but only if accompanied by her attorney.  Our policies do not address this issue – do we have to let the attorney attend our meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No.  The meeting is not a hearing.  It’s simply an opportunity for physicians to talk with one another in a collegial manner.  There’s no legal obligation to permit an attorney to attend, and the presence of an attorney would likely make the process less effective by making it seem more confrontational than it needs to be.

It’s much easier to address this situation when the policy addressing professional conduct includes language such as the following:

To promote the collegial and educational objectives of this Policy, all discussions and meetings with a Practitioner shall generally involve only the Practitioner and the appropriate Medical Staff Leaders and Hospital personnel.  No counsel representing the Practitioner or the Medical Staff or the Hospital shall attend any of these meetings.  In their discretion, Medical Staff Leaders may permit a Practitioner to invite another Practitioner to the meeting.  In such case, the invited Practitioner may not participate in the discussion or in any way serve as an advocate for the Practitioner under review, must sign a Confidentiality Agreement, and may be required to leave the meeting at any time.

Of course, the physician may consult an attorney prior to the meeting (and the physician shouldn’t be discouraged from doing so).  The attorney could even accompany the physician to the hospital and wait in an appropriate location – outside of the meeting – if the physician insists.  But there’s no obligation to allow the attorney to accompany the physician during the meeting.

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

May 8, 2025

Posted on by Courtney Patterson

QUESTION:
What are some ADA-specific considerations for allowing patients to bring service animals to the hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under the American with Disabilities Act (“ADA”), patients who require the services of a service animal are generally permitted to bring their service animal with them to a hospital.  However, the ADA protections granted to service animals do not apply to emotional support animals; therefore, hospitals may prohibit patients from bringing emotional support animals to the hospital.  Hospitals may impose rules and restrictions for managing service animals in their facilities.

Title III of the ADA requires hospitals and other places of public accommodation to modify policies, practices, and procedures to permit individuals with a disability to use a service animal.  Service animals must be under the handler’s control.  The ADA regulations require handlers control their service animals with a harness, leash, or other tether, unless the handler is unable to use said harness leash or tether because of a disability or said harness, leash, or tether would interfere with the service animal’s safe and effective performance of work or tasks.  The hospital may request that the service animal be removed if (1) the animal is out of control and the animal’s handler does not take effective action to control it, or (2) the animal is not housebroken.

Under the ADA, a “service animal” means any dog that is individually trained to do work or perform tasks for the benefits of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.  The “works performed” by a service animal must be directly related the individual’s disability.  For example, a dog who assists an individual who is blind or has low vision by navigating the person throughout a facility, or a dog who helps a person with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors performs works or tasks that meet the service animal requirement.

Importantly, other species of animals are not considered service animals (however, the ADA does require accommodations for people who use miniature horses similarly to service animals in specific circumstances).  Additionally, an animal’s presence or the provision of emotional support, well-being, comfort, or companionship does not constitute works or tasks for the purposes of identifying an animal as a “service animal.” Why? According to the Department of Justice, the difference between a service animal and an emotional support animal is determined by the work or task that the animal performs.  A service animal, unlike an emotional support animal, is trained to respond to an individual’s need.  For example, if a service animal senses a person is about to have a psychiatric episode and it is trained to respond by nudging, barking, or moving the individual to a safe location until an episode subsides, the animal “performs a task” or has “done work” on behalf of the individual with a disability rather than simply sensing that an event has occurred.  Thus, an emotional support animal, which typically is not trained to recognize and respond to an episode, but rather comforts or provides companionship as a result of a person’s episode, does not perform works or tasks and is therefore excluded from the “service animal” definition.

If it is unclear whether someone’s dog is a service animal, a place of public accommodation may only ask two questions pertaining the service animal:  (1) Is the service animal required because of a disability? (2) What work or task has the dog been trained to perform?  Under the ADA, it is unlawful to (1) ask about the nature and extent of the person’s disability, (2) request any documentation that the service animal is registered, licensed, or certified as a service animal, or (3) ask the handler to pay a surcharge where a surcharge would otherwise be appropriate.  The U.S. Department of Justice Civil Rights Division has no shortage of information, including its Service Animals ADA Requirements:  Service Animals, and Frequently Asked Questions about Service Animals and the ADA webpages.

If you have a quick question about this, e-mail Moises A. Tonoc Bonilla at mtonocbonilla@hortyspringer.com.