Author: Courtney Patterson

October 27, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, an OB resigned from our medical staff to take an opportunity out of state.  Well, one of the OB’s cases was flagged this week by a peer review specialist who sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is rather common, but always a little tricky.  Because the OB is no longer a member of your medical staff, we would advise that peer review of that OB’s medical services provided at your hospital should be discontinued.  The purpose of peer reviewing a specific physician is to ensure and improve quality; this purpose can no longer be effectuated if the OB has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as asking the OB questions about the case, having the OB complete additional training, or monitoring a few of the OB’s cases at the hospital).

Also, depending on state law, a malpractice attorney may argue that the peer review privilege no longer applies to reviews conducted after the OB has left the medical staff.  Finally, if the OB turns around and sues the hospital for whatever reason, continuing peer review of the OB after their departure may give an eager plaintiff’s attorney something to leech onto (e.g., allegations that the purpose of the review is to harm the physician).

This does not mean the case should completely evaporate and if any system-issues were identified outside of the care being provided by the OB, then those system-issues are still prevalent and should be addressed.  We would just advise that any issues related to the OB’s practice at the hospital be put aside.

October 20, 2022

Posted on by Courtney Patterson

QUESTION:
We are currently updating our informed consent forms. Can you remind us of what information should be included on these forms

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Informed consent is critical to providing quality care, so I commend your efforts to review your forms. In almost every state, the treating provider is responsible for explaining to the patient ˗ in such a way that the patient can understand ˗ (1) the item or service that will be provided, (2) the benefits and risks associated with that care, and (3) any alternatives. In some states, failure to obtain a patient’s informed consent may render the treating provider liable for any injury that results from the rendered care, so be sure to check your state law!

Under the Medicare Conditions of Participation, the medical record must contain documentation of the patient’s informed consent for certain treatments and procedures. The Medicare Conditions of Participation Guidelines offer a detailed explanation of what a properly executed informed consent form should look like. When revising your informed consent forms, be sure that they have at least the following elements:

  • 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 states that a well-designed informed consent form may also include:

  • The name of the provider 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 providers who are not physicians, other than the treating provider, 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 in doubt, reach out to Mary Paterni to review whether your informed consent forms comply with state and federal law.

October 13, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

October 6, 2022

Posted on by Courtney Patterson

QUESTION:
Getting attendance at our Medical Staff department and committee meetings has always been a challenge.  Being able to participate remotely has helped somewhat, but it has also opened a whole new set of problems (like members participating on a confidential committee discussion while they shop at Target!).  How can we balance the benefits of using Zoom and Teams with some of the inherent risks that come along with using those remote options?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While we too have benefited from the ability to interact with Hospitals and Medical Staffs leaders via Zoom and Teams during the pandemic, maintaining confidentiality, privacy and security can be a problem during virtual meetings.  This is especially true if any sensitive information will be discussed or shared.

Like traditional, in-person meetings, it can be helpful for the chair to begin each meeting with a reminder of the importance of confidentiality when sensitive issues are being discussed.  It is also important to remind participants to only join in from a secure location and that they are required to maintain compliance with all applicable policies on confidentiality, data privacy, electronic communications, and security no matter where they call in from.  A “virtual meeting” policy can be a helpful way to spell out these guidelines.

Consider joining us for our November Grand Rounds “Running Effective Meetings in a Virtual World,” where Ian Donaldson and Nick Calabrese will discuss how to make your meetings more efficient, both in-person and remotely, and some of the challenges Medical Staff leaders face regarding confidentiality in a virtual space.

September 29, 2022

Posted on by Courtney Patterson

QUESTION:
We are in the process of credentialing a new applicant.  We spotted some red flags pretty early on.  The Chair of the Credentials Committee knows physicians where the applicant trained.  Those physicians are not included by the applicant on the application.  Can the Credentials Committee Chair still call these physicians or are we limited to talking to the references the applicant listed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  When it comes to gathering information about applicants for appointment, we like to say, “The sky is the limit.”  This means that you are permitted to obtain information from anyone who might have information that is relevant to the applicant’s qualifications.  The permission to obtain information is probably reflected in your Bylaws or Credentials Policy.  For instance, we include the following language in our documents:

The individual authorizes the Hospital, Medical Staff leaders, and their representatives to consult with any third party who may have information relating to the individual’s professional competence or conduct or any other matter relating to their qualifications for initial or continued appointment, and to obtain communications, reports, records, and other documents of third parties that may be relevant to such questions.  The individual also specifically authorizes third parties to release this information to the Hospital and its authorized representatives upon request.

This language protects both your hospital for asking for information and the person who has the information for providing it to you.  As added protection, there should also be similar information in the application form itself.  So, the bottom line is that you are not restricted from gathering information from individuals who the applicant has identified in the application.

The one area where you want to be careful is if you are calling a current employer.  The applicant may not have given notice of their intention to leave.  Usually, we recommend holding off on asking for a reference from the current employer until a little later in the process.  But, ultimately, you can ask the employer for a reference and, as a best practice, follow up with a phone call as well.

Looking for other guidance on difficult credentialing issues, why not join us in Las Vegas on November 17-19 for Credentialing for Excellence!

September 22, 2022

Posted on by Courtney Patterson

QUESTION:
A physician recently resigned employment with a group that’s affiliated with the hospital.  Is there anything we should consider with respect to the physician’s Medical Staff appointment and privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes, you’ll want to evaluate whether the physician is still eligible for continued appointment and privileges under the Medical Staff Credentials Policy (or Bylaws).

Malpractice insurance is often provided through employers, so physicians who resign their employment often lose their malpractice coverage.  Most Medical Staff Credentials Policies state that such insurance is a threshold eligibility criterion for appointment and privileges and that physicians will “automatically relinquish” their privileges if they lose their insurance.  (If your Credentials Policy doesn’t say this, it should!)  So, one step is to determine if the physician has acquired new malpractice insurance.

Similarly, Credentials Policies often require physicians to have acceptable coverage arrangements to be eligible for appointment and privileges.  Resignation from a group may mean that those coverage arrangements are no longer in place, so the existence of appropriate coverage should be confirmed with the physician.

Finally, all the other eligibility criteria in the Credentials Policy should be reviewed to determine if the physician’s resignation from employment will cause the physician to be ineligible.  For example, some Credentials Policies require the physician to maintain an office within the hospital’s service area as a condition of being granted appointment and privileges.

On the employment side, a physician’s employment contract may contain an “incident and coterminous” provision saying that the physician’s privileges will automatically be resigned upon termination of the contract.  Similarly, the contract may include a restrictive covenant prohibiting the physician from practicing in a defined geographic area for a certain amount of time after the contract ends.  However, the employer (not the Medical Staff) is responsible for enforcing such contractual provisions.

September 15, 2022

Posted on by Courtney Patterson

QUESTION:
What is the “counterparts” provision of a contract?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICK CALABRESE:
A counterparts provision basically recognizes that, sometimes, all of the parties can’t be in the same room together, at the same time, and sign the agreement.  So, separate copies of the agreement are signed.  This usually occurs in large transactions with many multiple parties, but can occur even in smaller transactions.  In any event, none of the copies will have all of the signatures on them.  So, if the CEO signs his or her copy, and the other party signs its copy, the contract is valid.  If, say, the CEO wants to make sure the other party actually signed the agreement, the CEO could ask that party to send a copy of the signature page, or even the entire agreement, to the hospital.

A typical counterparts provision will state:  “This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single Agreement.”

But, note that the absence of a counterpart provision may not in and of itself invalidate an agreement that the parties execute by separate counterparts.  However, it helps to prevent a party from claiming that an agreement is not binding because there is no single copy of it that is signed by all the parties.

September 8, 2022

Posted on by Courtney Patterson

QUESTION:
Can the medical staff of a critical access hospital be part of a unified medical staff within a multi-hospital system?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
As of the date of this e-mail (September 8, 2022), the answer is no, but a change could be in the works soon.  In 2014, the Centers for Medicare & Medicaid Services (“CMS”) revised the Medicare Conditions of Participation to allow a “unified and integrated” medical staff in hospitals that are part of a health system.  Previously, CMS had required that each hospital have its own separate medical staff.  In the past, even if medical staffs in a system had overlapping membership, CMS required that the medical staffs be “separate.”  However, the CMS Interpretive Guidelines provide as follows:

[A] hospital system that includes certain types of hospitals, i.e., Hospitals-within-Hospitals or Hospital Satellites, that are being paid under a Medicare payment system other than the Hospital Inpatient Prospective Payment System (IPPS) might jeopardize the Medicare payment status of those excluded hospitals if it owns both the tenant and host hospitals and uses a unified medical staff for both.  (Emphasis added.)

42 CFR §482.22(b)(4).  This effectively prevented CAHs from being part of a unified medical staff within a system.  CMS reiterated this rule in 2017 when it approved an application from The Joint Commission to have deemed status for surveys of CAHs. 82 Fed. Reg. 49,817, 49,818 (Oct. 27, 2017).

However, on July 6, 2022, CMS proposed that this prohibition be lifted and that medical staffs of CAHs be permitted to be part of a unified medical staff within a multi-hospital system subject to essentially the same rules (e.g., opt-in and opt-out rights, consideration of local circumstances, etc.) that apply to unified medical staffs within PPS hospitals. 87 Fed. Reg. 40350, 40376.  Comments closed on August 29, 2022, so the proposal may be final at any time now.  Stay tuned for further developments in the Health Law Express.

September 1, 2022

Posted on by Courtney Patterson

QUESTION:
We have new Medical Staff leaders taking office the first of the year and would like to get them trained up when they start. Do you have any virtual options available?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Do we ever!!! Several partners here at HSM have been working on a new virtual Medical Staff Leader Orientation & Toolkit program that will be available on January 26, 2023. This six-hour course will cover leadership, credentialing, and peer review topics, providing your new leaders with the tools they will need to get off on the right foot!

You can obtain more information and register for this program here.

August 25, 2022

Posted on by Courtney Patterson

QUESTION:
I just got back from what was probably the worst-run medical staff committee meeting ever. The problem is that I’m the chair and was running the meeting!  I thought it would be easy, but it was a lot harder than it looked. Any pointers?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Running a meeting is hard work – here are some tips that may help:

Tip #1.  Start on time.  This is one of the most important tips.  If a meeting isn’t started on time, chances are it won’t end on time, and that has consequences which we’ll discuss below.  If a meeting always starts on time, the attendees will more than likely be there on time, since no one likes to walk into a meeting late, and being late disrupts the meeting.

Tip #2.  Limit the conversation.  What “limit the conversation” means is that if a couple of attendees in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?”  Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion.  This can be hard to do, but it is a skill that needs to be developed.  Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #3.  Take an issue off-line.  There are times when a meeting is getting bogged down because no one has the information needed to make a decision.  For example, is the bylaws revision being discussed a Joint Commission Standard?  A best practice?  If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue.

Another reason to take an issue off the agenda is when there are so many conflicting points of view that the issue won’t be able to be resolved at the meeting.  The chair knows that no matter how much more discussion there is, the issue won’t be resolved.  So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #4.  End on time.  This is the most important tip.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, others will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make – focus is lost.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  Also, not ending on time affects meeting attendance.  If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

Sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. – that happens.  But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting.  The exception is if the issue is of critical importance, but that will be few and far between.