Author: Courtney Patterson

May 12, 2022

Posted on by Courtney Patterson

QUESTION:
Due to the long time needed for a physician with behavioral complaints to go through the collegial efforts and progressive steps (e.g., collegial meetings, letters, performance improvement plans, etc.), staff are often left with the impression that Hospital and Medical Staff Leaders are not addressing the problem and “the physician is getting away with his bad behavior again.”  This destroys morale and it makes everyone reluctant to report concerns.  Do you have suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  In our experience, nursing and other hospital staff are typically reluctant to report concerns, especially about behavior.  We also know that the reports that get filed are typically “the tip of the iceberg.”  This is supported by The Joint Commission’s Sentinel Event on Behaviors that Undermine a Culture of Safety, which was first published in July 2008 and was updated in June 2021.

It is even harder for staff to file a report if they think they are being ignored or if nothing has been done about reported concerns in the past.  At the same time, addressing behavioral concerns (just like addressing clinical or health concerns) is part of the peer review process and is confidential and privileged.  That doesn’t mean that leaders can’t get back to the person who filed the report.  In fact, we recommend, as a “best practice,” that leaders try to always follow-up with a person who has filed the report or complaint.

The follow-up is important because you will often get additional meaningful information when you talk with the person who filed the report.  For instance, you might learn that the complained of behavior “happens all the time” or that others have been subject to the same behavior by the same physician.  You might also learn the names of additional people who witnessed the incident or who have relevant information.  Any new information should also be documented.

But beyond getting additional information, talking to the person who reported the concern is important because it is your chance to reassure the person that they have been heard.  You can thank the person for coming forward and remind them that documentation is necessary so that action can be taken.  You can also let them know their report has been reviewed by Medical Staff Leadership and that appropriate action will be taken.

You can also let the person know that retaliation of any sort against them for filing a report will not be tolerated and they should report immediately if they think they are being retaliated against in any way.  It’s also a good idea to let them know that their identity has not been disclosed.

Additionally, you can tell the person who filed the report that the Medical Staff deals with concerns about behavior as part of its peer review process and that the process is confidential and privileged according to hospital policy and state law.  You can explain that you are not at liberty to share the results of the peer review process with them, but you can reassure them again that they have been heard and that action is being taken.

You may want to follow-up with a note or e-mail.  This will reinforce the information you provided and it will also give you a chance to remind the person of the important role that they play in addressing concerns (it is difficult to correct a problem without a written report or complaint) and the need for them to continue to report incidents in the future.

May 5, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.

April 28, 2022

Posted on by Courtney Patterson

QUESTION:
We are preparing for a medical staff hearing and a member of our Medical Executive Committee asked why our Medical Staff Bylaws say that the CEO appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee that led to the hearing.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, it makes it easy for the argument to be made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

April 21, 2022

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing?  Privileging?  Peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions.  Legally, there is no support for viewing an employment relationship as a disqualifying factor.  And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians.

Of course, if a specific concern is raised about an individual’s participation in any given review, it always makes sense to consider whether an individual has a conflict that could bias the process (e.g., direct competitors, close friends, etc.).  These types of situations should be addressed under the Medical Staff’s conflict of interest guidelines.  But those guidelines should make it clear that employment by, or other contractual arrangement with, a hospital does not, in and of itself, preclude an individual from participating in Medical Staff functions.

April 14, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, a nephrologist resigned from our medical staff to take an opportunity out of state.  It’s been brought to my attention that one of the nephrologist’s cases had been flagged for review by our peer review specialist.  The specialist 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 more common than you would think.  Because the nephrologist is no longer a member of your medical staff, we would advise that specific peer review of that physician’s medical services should be discontinued.  The purpose of peer reviewing that physician is to ensure and improve quality; this purpose can no longer be effectuated if the physician 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 having the physician complete additional training and then monitoring a few of the physician’s cases at the hospital).  Also, a malpractice attorney may argue that the peer review privilege doesn’t apply to reviews conducted after a physician has left the medical staff.  Finally, continuing peer review of a physician no longer on your medical staff may give an eager plaintiff’s attorney something to squawk about (e.g., allegations that the purpose of the review is to harm the physician).

April 7, 2022

Posted on by Courtney Patterson

QUESTION:
At our hospital members of the Professional Practice Evaluation/Peer Review Committee (“PPE/PRC”) also sit on our Medical Executive Committee (“MEC”).  If a hearing was generated out of the PPE/PRC, could there be an adverse determination as there was significant prior knowledge of an event by MEC members?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICK CALABRESE:
These concerns are spot-on!  We strongly recommend that there be as little overlap as possible between the PPE/PRC and the MEC, with the reasons being both practical/operational and legal:

  • Hospital and Medical Staff bylaws and policies should be clear that the PPE/PRC has no disciplinary authority – it is a “helping” committee on steroids. This leads to Medical Staff members being more willing to work with the PPE/PRC in a constructive and cooperative way, since it is not cast as MEC disciplinary action.
  • If the PPE/PRC can’t fix something and it gets referred to the MEC, the MEC should be an independent and unbiased group who can’t be alleged to have pre-decided the matter prior to conducting a fair and formal investigation.
  • Having a good line of demarcation between the PPE/PRC and MEC also helps on the reporting side – less risk of having an intervention have to be reported to the State or National Practitioner Data Bank if there is no overlap/confusion as to who is taking the action.

March 31, 2022

Posted on by Courtney Patterson

QUESTION:
We just heard that HRSA ran out of money for its Claims Reimbursement Program for COVID-19 Testing, Treatment, and Vaccine Administration for the Uninsured.  Does that mean we can balance bill for services to patients who would otherwise have been reimbursed under this program?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Yes, to the extent that you have not already been reimbursed for HRSA.  HRSA recently posted the following announcement on its website:

The Uninsured Program has stopped accepting claims for testing and treatment due to lack of sufficient funds.  Confirmation of receipt of your claim submission does not mean the claim will be paid.  No claims submitted after March 22, 2022 at 11:59 pm ET for testing or treatment will be processed for adjudication/payment.

On April 5, 2022 at 11:59 pm ET, the Uninsured Program will also stop accepting vaccination claims due to a lack of sufficient funds.

The terms and conditions for the Program state in part:

The Recipient certifies that it will not engage in “balance billing” or charge any type of cost sharing for any items or services provided to Uninsured Individuals receiving a COVID-19 testing and/or testing related items, vaccination or care or treatment for a positive diagnosis of COVID-19 for which the Recipient receives a Payment from the Uninsured Program Fund.  The Recipient must not sell or seek reimbursement from an Uninsured Individual for any COVID-19 vaccine and any adjuvant, syringes, needles, or other constituent products and ancillary supplies that the federal government provides at no cost to the Recipient.  The Recipient shall consider Payment received from the Uninsured Program Fund to be payment in full for such COVID-19 testing and/or testing-related items, vaccine administration, care, or treatment.

To the extent that HRSA will no longer reimburse for these services, you can once again balance bill for these services.

March 24, 2022

Posted on by Courtney Patterson

QUESTION:
I am the chief of the division of family medicine at my hospital.  I recently learned that a nurse’s aide complained to her supervisor about my tone when speaking with the mother of a patient in our clinic.  The complaint made its way into the peer review system, and I was sent a “letter of guidance” referencing the organization’s Code of Conduct and encouraging me, for lack of a better explanation, to be on my best behavior and be mindful of my reputation and that of the health system.

To be honest, although I am involved in leadership and understand the underlying motivation for the Code of Conduct, I found this to be a really patronizing experience.  The aide who made the complaint knows nothing about my history with this patient and his mother, nor the practical or clinical reasons why I might take a serious tone with her.  My treatment of this patient and his mother was appropriate, given the circumstances and I feel pretty strongly that the aide should have stayed out of it or at least raised her concerns with me before reporting me to her supervisor.

I would like to take this opportunity to discuss this situation with the aide and her supervisor.  It’s important for the aide to understand that some patients of the clinic are well known by clinic staff to require more intense interactions regarding appropriate treatment options and the importance of compliance with the treatment plan.  I am not expecting an apology from the aide as a result of this conversation but, instead, see this conversation as an opportunity to improve how the clinic team operates and, hopefully, prevent frivolous reports in the future.

Last week, I approached the supervisor regarding this, to schedule a time for all three of us to sit down to talk (me, the supervisor, and the aide).  The supervisor told me that my plan was not appropriate and could be viewed as intimidation.  She refused to schedule the session and said I’d better run my plan past the Chief of Staff first.  I did and she said it’s better to “leave it alone.”

Has the whole world gone crazy?  Can’t professionals talk to each other anymore?  How is this supposed to improve the patient care environment?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It’s easy to see why you might be frustrated, given the scenario you have described.  A key component of any peer review process should be transparency.  This means all practitioners who are subject to the process should understand that it exists and how it works.  Information should, ideally, be periodically pushed out to members of the Medical Staff to help them understand the many moving parts to the peer review process.  When the process is better understood, practitioners are less likely to feel targeted when their own practices come under scrutiny.

Transparency requires more than knowledge of the process, however.  It also requires practitioner involvement in their own peer review.  In your case, it appears as though the peer review of the concern involving your conduct was concluded without anyone ever asking for your input and getting your side of the story.  How can practitioners be expected to buy-in to a process that does not include their input?  As you describe it, that input may have been vital in deciding the appropriate outcome.  Maybe if you had been given a chance to discuss the facts with those conducting the review, they would have concluded that rather than sending you a letter of education, they should provide additional information and training to clinic personnel regarding tough, non-compliant patient management.

At this point, what’s done is done.  Your best bet may be to respond to the letter of education explaining your side of the story and requesting that consideration be given to obtaining your input should any future, similar concerns be reported.  Further, you might consider recommending that clinic personnel receive additional training to help them understand and manage situations like this.  Don’t worry that your response will be seen as controversial or adversarial.  A professionally-worded response, sent through appropriate channels, is part of the review process and is completely appropriate.  After all, the aim of the peer review process should not only be to work with privileged practitioners to address concerns that are under their control, but also to bring to light related, systemic concerns that should be addressed to improve patient care overall.

With that said, we agree with the aide’s supervisor that it is not a good idea for you to sit down with the aide to discuss this matter.  While doing so might be the fastest, most efficient way to get from point A to point B, the supervisor is right – your actions could intimidate the aide.  And, in the long run, that could lead to aides (and other personnel) being reluctant to report meaningful concerns about practitioners due to fear of retaliation.

This advice may be frustrating, because your intentions may be good.  Instead of focusing on your intentions, though, try to think about process.  Can an effective peer review process rely on the good intentions of every physician whose conduct is reported?  If practitioners are given free rein to “confront” those who report concerns about that, would that have a chilling effect on future reports?  Would that promote advancements in quality?

You can see where we are going with this.

Ideally, this issue would have been addressed with you earlier (when your input was first sought by the leadership reviewing this matter) and, at that time, the organizational definition of retaliation could have been provided, along with a caution about engaging in any conduct that could be viewed as retaliatory.  Our recommendation is that a professionalism policy include any contact with the individual who filed a report, in an attempt to discuss the matter, as retaliatory – no matter the intention.  Letting practitioners know this early in the process avoids any embarrassment or confusion later.  Further, bringing it up early in the process avoids an implication that the practitioner is pursuing retaliatory conduct and allows it to serve as a generalized, non-confrontational FYI.  In most organizations, it works well and keeps disputes (and retaliation) to a minimum.

Peer review is tough and imperfect. Organizations are constantly tweaking their processes to correct deficiencies and improve the experience for the practitioners who are subject to review.  We hope you can take the flaws you perceived in this review of your conduct and work through available channels at your organization to suggest appropriate changes (e.g., earlier, methodical request for the practitioner’s input and guidance to practitioners of who they can contact to discuss the matter).

March 17, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital’s medical staff is working on a policy to screen older practitioners at reappointment for health issues that may affect their clinical ability.  A member of the MEC was previously at a hospital with a similar policy in place. She has spearheaded the effort and noted that her previous hospital’s policy was able to detect health issues with three elderly physicians.  While the preliminary discussions have been overwhelmingly positive, a couple of our physicians in their 70s voiced dissent with the policy at the last full medical staff meeting because they feel singled out.  Should we be worried about them suing the hospital if the policy is put in place?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
The current legal status of these types of “late career practitioner policies” is in flux.  Late career practitioner policies which screen older physicians at reappointment have been around for decades.  There are published articles detailing the various methods for implementing a late career practitioner policy and how effective those policies were. The rationale for the policies makes sense – catch any potential problems proactively before any patient harm or clinical trends appear.

However, in early 2020 the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Yale New Haven Hospital based on its late career practitioner policy.  The EEOC alleged that Yale New Haven was violating both the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”) by singling out physicians solely on the basis of their age.  While Yale New Haven is fighting the still-pending lawsuit, certain other hospitals and health systems have withdrawn their policies and paid damages to older physicians after being targeted by the EEOC.

Therefore, creating a new late career practitioner policy or continued enforcement of an old policy creates some legal risk, at least while the EEOC lawsuit against Yale is still pending.  Ultimately, the decision to move forward with such a policy needs to be deliberate, with buy-in from both the hospital’s medical staff and administration, and the knowledge that an adverse court opinion in the EEOC lawsuit will immediately put the brakes on such a policy.

For follow-up questions, please contact John Wieczorek at jwieczorek@hortyspringer.com.

March 10, 2022

Posted on by Courtney Patterson

QUESTION:

Is the “No Surprises Act” in effect?  I heard that a court enjoined it.  Is the No Surprises Act limited to Emergency Care?  Can you give me an example of how the Act works?  What recourse do I have if I do not agree with the amount that the insurer pays me under this Act?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The No Surprises Act and its implementing regulations (the “Act”) have been in effect since January 1, 2022.  The Act prohibits emergency department physicians and the facility from billing a patient an out-of-network fee for emergency care provided at any hospital Emergency Department and, if permitted by your state, any free-standing emergency department, regardless of whether the hospital or emergency department physicians participate in the patient’s insurance network.

The Act also prohibits balance billing a patient for non-emergency services provided in an in-network hospital by certain out-of-network physicians, including all traditional hospital-based physician specialties.  A physician can get a patient’s waiver of their rights under the No Surprises Act by using the notice and consent form provided by CMS for (1) certain non-emergency services and (2) post-stabilization services.  However, out-of-network physicians cannot obtain waivers for non-emergency services provided at an in-network hospital if they provide traditional hospital-based ancillary services (such as pathology), diagnostic services (including lab and x-ray); services provided by hospitalists, assistant surgeons, or intensivists; or if there are no in-network physicians on the hospital’s medical staff who can provide the care needed by the patient.  The waiver will also not apply to any emergent conditions that arise during a non-emergency service to which the patient provided his/her consent and waiver to be balance billed.

This section of the Act is best exemplified by one of the questions and answers provided by CMS’s Center for Consumer Information & Insurance Oversight:

Rhonda is a 50-year-old female with employer-sponsored health insurance who discovers a lump in her breast.  Her primary care provider orders a mammogram, which shows a suspicious mass. She is referred to the local in-network hospital’s outpatient department for a biopsy.  The biopsy is reviewed and found to be negative for malignant cells by a pathologist who happens to be out of network.

How much can the pathologist bill Rhonda under the rules of the No Surprises Act? 

ANSWER
Under the No Surprises Act, the pathologist is banned from billing Rhonda more than the in‑network cost-sharing amounts, as determined by her health plan.  The pathologist, as an ancillary service provider, is banned from obtaining consent from the individual to waive these balance billing protections.

In the past, the pathologist could bill the out-of-network patient his/her usual and customary charge.  The patient would submit the bill to her insurer and the insurer would pay the provider the out-of-network rate and the pathologist could then balance bill the patient for any amount not covered by insurance – NO MORE.  The No Surprises Act regulations also prohibits the pathologist from obtaining the patient’s consent to waive these rights (although, as described above, certain other specialties can obtain the patient’s waiver for (1) certain non-emergency services and (2) post-stabilization services).

As stated above, the pathologist cannot bill the patient more than the pathologist would bill the patient if the patient was in-panel.  The pathologist must then bill the insurance carrier.  If the pathologist is not happy with the amount paid by the insurer, the pathologist must negotiate with the plan for 30 business days.  If the pathologist is still not happy with the amount being offered by the plan, the pathologist must go to arbitration to determine the amount of payment.

However, on February 23, 2022, a federal court has enjoined the CMS provider/health plan arbitration process (but only the arbitration process – the rest of the No Surprises Act regulations are in full force and effect).  That arbitration process created a presumption that the amount that the provider should be paid is the “Qualified Payment Amount” (“QPA”), which is typically the median rate the insurer would have paid for the service if provided by an in-network provider or facility.

The regulations also limited the information that can be presented to the arbitrator and specifically prohibited the arbitrator from considering the provider’s usual and customary charges for an item or service, the amount the provider would have billed for the item or service in the absence of the Act, or the reimbursement rates for the item or service under Medicare or Medicaid.  Finally, the arbitration is “baseball-type” arbitration, which means that the arbitrator must pick one of the amounts proposed – the arbitrator does not have the discretion to split the difference or to choose an amount other than the amount proposed by the provider or by the health plan.

The federal court enjoined this arbitration process from going into effect.  However, the court did not provide any guidance as to how disputed fees are to be resolved while this case is on appeal, or how payment disputes are to be resolved until new regulations are promulgated.