Author: Courtney Patterson

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  So, the ban is no longer in effect and the FTC is no longer trying to enforce it.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.

September 11, 2025

Posted on by Courtney Patterson


QUESTION:
We recently asked a physician for input about a complaint that had been filed about his interactions with other members of the healthcare team.  He immediately asked, “who filed the report?” Should we disclose that information?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Assuming this request for input occurred under your “routine” peer review process, the answer is a resounding “no,” as we want to protect the identity of those who are willing to come forward and raise a concern.

We always write our Professionalism Policy to say that the specific identity of any individual reporting a concern (or those who otherwise provide information about a matter) will not be disclosed to the practitioner.  The only exception would be if the individual who filed the report consents to the disclosure of their identity or where the information is later used to support an adverse professional review action that results in a Medical Staff hearing.

Of course, even if the identity of the reporter isn’t disclosed, the individual under review may guess or know who filed the report.  As such, it can be a good idea to remind the practitioner who was the subject of the report to avoid any actions that could be perceived as retaliatory, even if retaliation isn’t the intent.

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

September 4, 2025

Posted on by Courtney Patterson


QUESTION:
An applicant disclosed that they have a physical disability.  What can we do (or not do) in terms of asking follow-up questions about the applicant’s physical disability?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Assuming that the applicant is applying for employment as an employee, under the Americans with Disabilities Act (the “ADA”), an employer cannot ask disability‑related questions and may not conduct medical examinations until after the employer makes a conditional job offer to the applicant.  It is unlawful to ask an applicant whether they have a disability or about the nature or severity of a disability (i.e., a “disability-related question” that is likely to elicit information about a disability) or require an applicant to take a medical examination before making a job offer.

However, an employer may inquire into whether the applicant is qualified for the job.  In doing so, an employer may ask about an applicant’s ability to perform a specific job function or ask about the applicant’s non-medical qualifications and skills (e.g., education, work history, required certifications).  An employer may ask about an applicant’s ability to perform a specific function of the job the applicant has applied to, such as whether the applicant can lift a certain amount of weight (if lifting said certain amount of weight is relevant to the position).

Generally, an employer cannot ask questions on an application or during an interview whether an applicant may need a reasonable accommodation for a job, since the question on its own elicits information about the applicant’s disability.  However, if the applicant voluntarily discloses the existence of their disability or voluntarily discloses that they need a reasonable accommodation to perform the job, the employer may ask certain questions about the reasonable accommodation.  For example, an employer may ask whether the applicant will need a reasonable accommodation to perform the functions of the job, or what type(s) of accommodation(s) the applicant would need to perform the function of the job.  Importantly, the employer cannot ask about the applicant’s underlying condition and may not ask accommodation questions that are unrelated to the job’s functions.

Once a conditional offer is made, the employer may then ask disability-related questions and may require a medical examination if the inquiry or medical examination is done for all entering employees in that job category.

Even if the applicant is not seeking employment but rather applying for medical staff appointment as an independent practitioner, it is advisable to follow these rules some (but not all) courts have held that the ADA is applicable to medical staff appointment decisions.

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

August 28, 2025

Posted on by Courtney Patterson


QUESTION:
How can our medical staff leaders best verify that a physician actually received a written request for information? Classically, I hear doctors say they “didn’t get the notice” – even when it is sent multiple ways – including certified mail.  (Registrant Q&A, submitted electronically at the Complete Course for Medical Staff Leaders, held in Las Vegas (Fall 2022))

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It’s amazing (and somewhat comical) how much time hospitals and medical staff leaders have spent trying to ensure, and document conclusively, that a practitioner has received notifications about medical staff membership, clinical privileges, peer review matters, Bylaws amendments, and so on.  In an era where snail mail, fax machines, and hand delivery were more common, the devotion to tracking down physicians at great effort was (perhaps) understandable.  But, as you mentioned, many times physicians claimed they did not receive hospital correspondence – even when it was sent via certified mail, return receipt requested (a very inconvenient type of mail to send).

Luckily, we have moved past that era and there are now better tools available to hospitals and their medical staff leaders – ones that virtually eliminate the administrative burden of providing appropriate notice or special notice to a member of the medical staff (or other practitioner with clinical privileges).  Specifically – considering using email and/or online messaging apps/programs to correspond regarding all communications related to the practitioner’s medical staff membership and/or privileges.  This can include all routine communications (e.g., “it’s time to submit your application for reappointment”), as well as non-routine communications (e.g., letters of guidance or education sent through the peer review process).  In fact, many organizations these days are even using email for “Special Notice” – that is, the type of notice generally given for matters of importance, such as notice of adverse professional review action and/or the right to request a medical staff hearing.

Of course, the method(s) of notice utilized by the hospital and its medical staff leaders must comply with the Medical Staff Bylaws and other medical staff governance documents (such as the Rules and Regulations, or other medical staff policies).  So, it’s important to consult those documents – and see whether/how they define “notice” – before switching up your default method.  If necessary, you may need to pass an amendment that clarifies the default method for communicating with Medical Staff members and privileged practitioners (as well as applicants for medical staff membership or privileges) will be email.

To help with administration/implementation, also consider:

  • Stating in the Medical Staff Bylaws/Credentials Policy that every applicant/practitioner must provide a current email address to Medical Staff Services and keep that address up-to-date throughout the credentialing period and any term of medical staff membership and/or privileges;
  • Requiring the practitioner to certify that the email address he or she will use for hospital and medical staff correspondence is appropriately secured, sufficient to meet the requirements of the Health Insurance Portability and Accountability Act’s privacy and security regulations. As an alternative, the Bylaws might be drafted to state that every applicant and/or practitioner will be issued an email address by the health system and will be required to utilize that email address to send and receive emails related to the practitioner’s medical staff membership and/or privileges.  A final alternative is for the Bylaws to state that all correspondence will occur via a secured intranet or app (for which the practitioner will have a user ID and password);
  • Placing the burden on the applicant/practitioner to regularly check the email address that has been provided to Medical Staff Services and/or the app that is being utilized for correspondence;
  • Specifically stating the methods of communication that are considered acceptable for notice (e.g., email, regular U.S. mail, telephone) and special notice (e.g., email, federal express or other delivery service offering verification of delivery, hand delivery with documentation of delivery);
  • Outlining any other specific details that may apply to the provision of notice. For example, when calculating “days” for the purposes of giving notice, does the date that the notice was sent count?  Do weekends and holidays count?

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

August 21, 2025

Posted on by Courtney Patterson


QUESTION:
A member of our Medical Staff disclosed they have a prescription to use medical marijuana. Is this something we should follow up on?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
There are some general principles to know before addressing a situation involving medical marijuana in the workplace:

  1. Marijuana is still illegal under federal law. This means people who use medical marijuana are not entitled to federal protections like those in the Americans with Disabilities Act.  Instead, the rules and protections are set by each state and enforced by state agencies, medical boards, or other state-run committees.
  1. Not all states are created equal. States treat medical marijuana in the workplace in different ways.  Some states have laws that protect users – for example, stopping employers from discriminating against them or requiring reasonable accommodations be made.  Other states have taken the stance that practitioners should refrain from using medical marijuana, and some states have not addressed the issue at all.
  1. A prescription doesn’t mean unrestricted use in the workplace. No state requires employers to permit the use of medical marijuana during work or on work property.

With that in mind, we recommend hospitals treat a situation like this like any other where they receive notice that a practitioner may be experiencing a health problem.  The matter should be reviewed under the Practitioner Health Policy or another applicable policy to determine if the underlying cause for the use of medical marijuana affects the practitioner’s ability to safely treat patients.  After that, be sure to check with counsel to see how your state addresses marijuana use in the workplace.

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

August 14, 2025

Posted on by Courtney Patterson

QUESTION:
We just discovered that we hired a nurse who was listed on the OIG’s List of Excluded Individuals and Entities while she worked for us.  What do we need to do and how does the OIG determine damages for a provider such as a nurse who does not make referrals of federal health care program beneficiaries to the Hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Unfortunately, if a hospital or other provider who received federal health care program reimbursement such as Medicare, Medicare and/or Tri-Care employs or contracts with  an individual or entity that is listed on the OIG’s List of Excluded Individuals and Entities (the “LEIE”), once discovered, the health care entity must make a self-disclosure to the Office of Inspector General (“OIG”) using the OIG’s self-disclosure protocol.

There is a section of the OIG’s protocol that specifically addresses self-disclosures involving excluded individuals. That Section of the Protocol states that the self-disclosure must include: the identity of the excluded person and any provider identification number; the job duties performed by that person; the dates of the person’s employment or contractual relationship; a description of any background checks that the disclosing party completed before and/or during the person’s employment or contract; a description of the disclosing party’s screening process (including any policy or procedure that was in place) and any flaw or breakdown in that process that led to the hiring or contracting with the excluded person; a description of how the conduct was discovered; and a description of any corrective action (including a copy of any revised policy or procedure) implemented to prevent future hiring of excluded persons.

One additional requirement that you might not expect is that the OIG also requires that before a self-disclosure involving an excluded individual or entity can be submitted to the OIG, the disclosing party must screen all current employees and contractors against the LEIE.

OK so once you have this information, you need to provide damage information.  Typically, damages for a self-disclosure are based on the items or services furnished, ordered, or prescribed by the excluded person.  However, the OIG understands that when the excluded person provided items or services that are not billed separately to Federal health care programs, such as your self-disclosure that is due to your hiring an excluded nurse, the damages amounts can be difficult to quantify.

In this instance, the OIG requires you to first determine your total costs of employment or contracting during the period of exclusion which includes all salary and benefits and other money or items of value, health insurance, life insurance, disability insurance, and employer taxes paid related to employment of the person such as the employer’s share of FICA and Medicare taxes.

This total amount is then multiplied by the disclosing party’s revenue-based Federal health care program payor mix for the period of time that the excluded individual was employed by the hospital.

If the disclosing party can measure the Federal payor mix for the department or unit in which the excluded person worked, it is appropriate to apply that payor mix. If the departmental payor mix cannot reasonably be measured, the disclosing party must apply the payor mix for the whole hospital. When the disclosing party is using a Federal health care program payor mix, the disclosure must include a separate calculation for each Federal health care program. For example, if the disclosing party’s Federal payor mix is 60 percent, the disclosure should break down how the Federal health care programs make up that 60 percent, such as 40 percent Medicare, 10 percent Medicaid State A, 5 percent Medicaid State B, and 5 percent TRICARE.

The resulting amount will be used as a proxy for the amount paid and the single damages to the Federal health care programs resulting from the employment of the excluded person.   The OIG Self-Disclosure Protocol states “The specific multiplier that we accept may vary depending on the facts of each case. OIG’s general practice in CMP settlements of SDP matters is to require a minimum multiplier of 1.5 times the single damages, although we determine in each individual case whether a higher multiplier may be warranted.”

So prepare yourself − this self-disclosure will not be inexpensive to resolve.  But take solace in knowing that by submitting the self-disclosure, you will put this unfortunate issue behind you, and the corrective actions that must be implemented as a result of the OIG’s Self-Disclosure Protocol should prevent you from ever having to submit another self-disclosure due to your hiring or contracting with an excluded individual or entity.

If you have a quick question about this, e-mail Henry Casale at HCasale@hortyspringer.com.

August 7, 2025

Posted on by Courtney Patterson

QUESTION:
One of our doctors had his Medicare billing privileges revoked for a year.  Does that mean we have to terminate his contract and no longer accept referrals from him?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
No.  Revocation of Medicare billing privileges is not the same as being excluded from Medicare.  The regulations governing situations where a provider’s Medicare billing privileges have been revoked (42 CFR §424.555) say that Medicare will not pay for services furnished by a provider whose billing privileges have been revoked.  That regulation goes on to say that the provider could incur criminal liability if the provider tried to bill Medicare.

This is different than the case of a provider who is formally excluded from participation in Medicare.  A hospital can incur civil monetary penalties if it continues to contract with an excluded provider and is also prohibited from billing Medicare for hospital technical services referred by an excluded provider.  These prohibitions do not apply when a provider like a physician simply has his or her Medicare billing privileges revoked.

Depending on the situation, a provider may be able to ask Medicare to reconsider the revocation or reinstate billing privileges before the revocation period expires pursuant to 42 CFR §498.22.

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

July 17, 2025

Posted on by Courtney Patterson

QUESTION:
Is our responsibility under EMTALA complete once we conduct an Emergency Screening Exam and determine that since we do not have the ability to treat the patient, the patient will be transferred to another hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
No.  There are two separate duties under EMTALA – the duty to conduct an Emergency Medical Screening Exam and a duty to stabilize the patient – your obligations under EMTALA are not complete until both duties have been satisfied in a reasonable manner.

A hospital must satisfy EMTALA’s first duty by providing an appropriate Medical Screening Examination (“MSE”) to any individual who comes to the hospital’s Emergency Department requesting examination or treatment.  While an MSE is not required to be conducted by a physician, if a non-physician will conduct the MSE, they must be qualified, and have been approved by the Board, to perform an MSE.

It is important to note that EMTALA does not impose a national standard of care on how to screen patients.  Therefore, a hospital is not required to provide an MSE that is comparable to an MSE offered in other hospitals, nor is a hospital required to provide more than an initial MSE.  However, if the screening is so cursory that it is not designed to identify a patient’s acute and severe symptoms to alert the ED personnel of the need for immediate medical attention to prevent serious bodily injury, the hospital may be found to have failed in its duty to conduct an MSE.

Once the MSE determines that the patient is suffering from an emergency medical condition, the next obligation that EMTALA imposes on the hospital is to provide such further medical examination and treatment as may be required to stabilize the patient’s emergency medical condition, either for admission or to transfer the patient to another medical facility.  (BREAKING NEWS – be sure to read next week’s HLE as a court just found, for what we can determine is the first time, that a court has disagreed with HHS’s long held position that EMTALA’s obligations end once a patient is admitted to a hospital.)

EMTALA imposes strict guidelines on patient transfers.  A patient in an emergency medical condition may be transferred to another medical facility if after being informed of the risks of transfer and of the hospital’s treatment obligations, the individual requests to be transferred (“patient-initiated transfer”), or based on the information available at the time of transfer, the physician determines that the medical benefits to be received at another medical facility outweigh the risk to the patient of being transferred (including, in the case of a woman in labor, the risks to the unborn child) and a certification to this effect is signed by the physician (“physician-initiated transfer”).

Where a transfer is permitted, the hospital’s duty to stabilize the patient prior to transfer requires the hospital’s ED to provide “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.”

Therefore, a hospital may not transfer a patient with an emergency medical condition which has not been stabilized.  The hospital’s duty under EMTALA to “stabilize” the patient prior to transfer includes: (i) appropriate treatment of the patient while awaiting transfer: (ii) taking the steps reasonably required to minimize the risks associated with the transfer; and (iii) making sure that the patient is transported in an appropriate manner that takes into account the patient’s emergency medical condition.

A patient will have a claim against the hospital for a breach of EMTALA’s duty to stabilize pending transfer where the patient is able to show that the hospital did not satisfy this duty.

If you have a quick question about this question, please e-mail Henry Casale at hcasale@hortyspringer.com.