Author: Courtney Patterson

June 2, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our routine peer review process, we’re doing a better job of getting input from the physician under review. When we recently asked a physician for comments on a behavioral concern that had been raised, the physician asked who filed the report. Should we disclose that information?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
No. You mentioned that this review is occurring as part of your routine peer review process. At this stage in the peer review process, we recommend erring in favor of protecting the identity of those who are willing to come forward and raise a concern.

In most cases, particularly with clinical concerns, the identity of the person who raised the issue is irrelevant. The matter will be evaluated based on what’s in the medical record.

With behavioral concerns, there are often multiple people who witnessed the conduct that is being reviewed. Assuming those witnesses are interviewed, and they corroborate the concern raised by the person who reported, the identity of the person who reported is irrelevant.

Even where the identity of the reporter isn’t disclosed, the physician under review can sometimes guess who filed a report. Thus, it’s useful to gently remind physicians to avoid actions that could be perceived as retaliatory, even if retaliation isn’t the intent.

The answer would be different in settings where a physician’s clinical privileges could be restricted, for example, during a Medical Staff hearing. In that case, the physician should be provided access to the same documents considered by the hearing committee.

For additional tips relating to peer review, join us for July’s Grand Rounds – Top 10 Tips for Effective Peer Review of Clinical Concerns.

May 26, 2022

Posted on by Courtney Patterson

QUESTION:
I understand that the Surprise Billing case that was discussed in this week’s HLE arose before the No Surprises Act (“NSA”) went into effect.  How would the NSA have affected that case?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
While the case of the $229,112.13 surprise bill arose before the January 1, 2022 effective date of the NSA, it is interesting to see how the facts in that case would be affected if they happened after January 1, 2022.

The case does not state whether the patient’s surgery was emergency or elective.  However, the fact that the hospital and the patient were able to agree that the amount the patient would owe the hospital for that surgery was to be $1,336.90, leads us to assume that it was an elective surgery.  Based on that assumption, let’s explore what would happen if the same set of facts were to occur after the NSA went into effect.

First, there was a mix-up as to the patient’s insurance coverage.  Apparently, the hospital first thought that the patient was in-network and that was the basis for the $1,336.90 agreed-upon price.  It was only after the surgery was completed that the hospital realized that the patient was out-of-network and that based on the hospital’s charge master the hospital claimed that the patient owed the hospital $229,112.13.

When the patient refused to pay this amount, the hospital sued.  The jury not only sided with the patient, but it also decided that the agreed-upon price was too high and determined that the amount that the patient owed the hospital was only $766.74.  You should be aware that the appellate court disagreed with the trial court and reversed the jury verdict, reinstating the hospital’s demand.  However, the Colorado Supreme court reversed the appellate court and reinstated the jury’s verdict.  So, after being forced to expend legal fees and the anxiety that resulted from the appellate court decision, the patient’s final amount due was $766.74.

Under the NSA, the result would be very different.  Again, assuming this was a non-emergency surgery, the hospital would have been required to make an affirmative determination before the surgery whether the patient was in-network or out-of-network.  If the patient was out-of-network, then the patient would be considered uninsured (or self-pay).   At this point, the hospital is required to provide the self-pay patient with a good faith estimate that includes a list of all of the items or services that are reasonably expected to be furnished in conjunction with the surgery and the cost of that care.

When the good faith estimate must be provided depends on when the surgery was scheduled.  If the surgery is scheduled at least three business days before the date of surgery, then the good faith estimate must be provided no later than one business day after the date of scheduling.  If the surgery is scheduled at least 10 business days before the date of surgery, then the good faith estimate must be provided no later than three business days after the date of scheduling.  If a good faith estimate is requested by the self-pay patient, then the good faith estimate must be provided no later than three business days after the date of the request.  In any event, the patient must be made aware of the cost BEFORE the surgery – no longer will a patient wake up from surgery only to be informed that their bill would be much greater than the good faith estimate.

In addition, under the NSA, a patient who is involved in a dispute with a provider over the cost of the care provided pursuant to the good faith estimate, is not required to go to court or incur the costs of litigation.  If the difference between the amount of the good faith estimate, and the actual bill is more than $400, then the NSA entitles the patient to arbitrate the dispute.  This result is best illustrated by the following question and answer taken for CMS’s Center for Consumer Information & Insurance Oversight presentation on the NSA:

Tonya is a 40-year-old female with a long history of right knee pain. She does not have any form of health insurance. Tonya schedules an appointment with her orthopedist to receive a cortisone injection in her knee.  Upon scheduling the appointment, her orthopedist sends her a good faith estimate.  The good faith estimate lists the total expected charges of $300 for the procedure.  Tonya undergoes the injection and subsequently receives a bill from the orthopedist.  The total billed charge is $850.

Would Tonya be eligible to pursue the PPDR (Arbitration) process?

ANSWER:  Yes, Tonya would be eligible to pursue the PPDR (Arbitration) process. Tonya is uninsured, and the total billed charge is considered substantially in excess of the good faith estimate, since the difference between the total expected and total billed charges is greater than or equal to $400. Under the NSA, in order to be eligible to pursue the PPDR (Arbitration) process, an individual must be considered uninsured or self-pay, the total billed charges by the particular convening provider, convening facility, co-provider, or co‑facility, must be substantially in excess ( > $400) of the total expected charges for that specific provider or facility listed in the good faith estimate, and the date of the bill must be within 120 days.

Confirmation of insurance status before the surgery, advance notice of all services, a good faith estimate of all costs to the self-insured patient which must be reasonable charges not an inflated charge based on the hospital’s charge master, and the right to arbitration if there is more than a $400 difference between the patient’s bill and the good faith estimate – yes, the case in this week’s HLE would have turned out very differently once the NSA went into effect on January 1, 2022.

May 19, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital is negotiating with health insurers to perform delegated credentialing on their behalf.  The insurers are telling us that we cannot have a hearing officer option for conducting a hearing when providers are subject to certain adverse actions, such as termination of participation on a panel. Is this correct?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes. This is how health insurers interested in delegating credentialing functions to health care providers interpret the Medicare Advantage rules for provider participation.  According to those rules, a health insurer involved in the Medicare Advantage program has to give physicians certain rights when it suspends or terminates the physician’s participation agreement.  Among those rights are the right to receive notice of the reasons for the action and the right to appeal that action. The rules go on to talk about a hearing panel but only state that the insurer (or insurer’s delegate) must ensure that the majority of the hearing panel members are peers of the affected physician.

Now you could follow the constitutional principle of English law that instructs that “everything that is not forbidden is permitted” and go ahead and draft your delegated credentialing policies so that they allow for the hearing officer alternative to using a hearing panel.  However, this may create headaches down the road since health insurers have to perform a pre-delegation audit of your policies and procedures before delegating credentialing and will most likely require a revision to your policies if they permit the hearing officer option. Some providers, such as hospitals, use their existing medical staff credentialing policies and procedures to build off of to put delegated credentialing processes in place. To the extent that a hospital is interested in doing so and its existing Credentials Policy allows for the hearing officer option, it can simply revise its Credentials Policy to indicate that the option is not available when a hearing is offered for delegated credentialing purposes (as opposed to medical staff purposes).

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.