Author: Courtney Patterson

October 14, 2021

Posted on by Courtney Patterson

QUESTION:
What should be done if an applicant for reappointment is under investigation but his current term of appointment is set to expire before the investigation is completed?

ANSWER:
As most know, the Joint Commission has made it clear that privileges are granted for a period not to exceed two years and that continuations or extensions are not appropriate.  While this rule likely came about to avoid routine extensions due to administrative failures to process reappointments in a timely manner, it makes situations like the one above difficult to manage.

Keeping in mind this two-year limitation, we’ve found the best way to address applicants for reappointment who are currently under investigation is through a short-term conditional reappointment pending the outcome of the process.  This keeps the hospital on the right side of the Joint Commission, while providing time for the investigation to work its way out.

Having language in your Medical Staff Bylaws documents to support this approach is a key to good credentialing.

October 7, 2021

Posted on by Courtney Patterson

QUESTION:
In June, a federal court dismissed claims brought by employees of Houston Methodist Hospital who alleged the hospital’s vaccination requirement was illegal.  In this past week, another federal judge dismissed a similar lawsuit brought by employees of St. Elizabeth Medical Center.  How many hospitals/health systems have a mandatory vaccination requirement?

ANSWER:
As of September, approximately 2,600 hospitals and health systems put in place a mandatory vaccination requirement.  There were also over a dozen states, and even several cities, that imposed the requirement on health care workers.  There were some requirements that had exemptions for medical or religious reasons, and the penalties for not being vaccinated ranged from suspension to termination to weekly testing, among other things.  So, the requirement is on the upswing, and we’re staying alert for any updates.

September 30

Posted on by Courtney Patterson

QUESTION:
As we are preparing for a medical staff hearing, a member of our Medical Executive Committee asked why our Medical Staff Bylaws state that the Chief Executive Officer 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?

ANSWER:
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.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, we have seen the argument 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.

September 23, 2021

Posted on by Courtney Patterson

QUESTION:
We are involved in an overhaul of our medical staff governance documents.  We put together a task force of system leaders to guide us through the process, including an advanced practice professional (APP).  Historically, our documents only referenced APPs in a single article.

The task force is being challenged to be more inclusive and integrate APPs throughout the documents, including as members of the medical staff, and as members of key committees like the Credentials Committee, Medical Executive Committee and the Peer Review Committee.  What are you seeing around the country?

ANSWER:
We are seeing change – you might even say a transformation – with respect to how APPs are addressed in medical staff governance documents.  As you suggest, historically, APPs were mentioned in a separate article of the bylaws or perhaps there was a separate policy to address how to credential and privilege them.

As licensing statutes have changed and, as the role of APPs in providing care in hospitals has continued to expand, questions about their involvement in the Medical Staff are now routinely being discussed and debated.  As is often the case, there is no single right answer. Each organization has flexibility and discretion to decide whether, when and how to incorporate APPs into their bylaws, with some exceptions.

Let’s start with the exception which is the requirement that APPs (including advance practice nurses and physician assistants), who provide a medical level of care, must be credentialed and privileged through the medical staff process.  Additionally, since APPs are granted privileges, their performance must be evaluated through the peer review process.

These requirements lend support for integrating APPs into your medical staff governance documents so you don’t need companion documents to address requirements pertaining to them.  However, whether they are members of the Medical Staff and what role they play on the Medical Staff is another question.

In our experience, many Medical Staffs are including an APP category in the Bylaws for “convenient reference” but clearly state:  “The APP Staff is not a category of the Medical Staff.”  More recently, we have seen Medical Staffs add an APP category (akin to the Courtesy or Consulting Staff) to the Bylaws.  This would afford APPs membership status but their rights and prerogatives would be very limited (e.g., no right to vote at the Medical Staff or department level, no ability to serve in a leadership position).

A few Medical Staffs are going a step further and identifying APPs as members of each category of the Medical Staff as long as they meet the patient contact or other criteria.  In these situations, to ensure compliance with the Conditions of Participation and accreditation standards, the Bylaw typically note that APPs are not eligible to serve as an officer or department chairperson.  The rules are different at critical access hospitals.

As you suggest, other key issues are whether to include APPs on committees like the Credentials Committee, Medical Executive Committee, and the Peer Review Committee.  While we won’t say there is a national consensus, we are definitely seeing a movement in this direction including a designated spot on these committees for an APP (usually appointed by the Chief of Staff or Medical Executive Committee).  Some Medical Staffs still want to clarify that the APPs are present to address APP issues but must leave when there is a credentialing or peer review issue pertaining to a physician, but most are not this restrictive.  And my personal bias is if you make an APP a member of a committee and expect them to show up and participate, they should have a right to vote.

And these are the easy issues.  The much tougher issues involving APPs are around required training, clinical privileges, and changes in practice.  We’ll leave these for another day.

September 16, 2021

Posted on by Courtney Patterson

QUESTION:
We’re developing new case review forms for our peer review process and wondered whether we should ask reviewers to assign a numerical score to various aspects of care.  Do you recommend scoring cases in this way?

ANSWER:

No!  In our experience, scoring has the following drawbacks:

(1)        Too much energy is spent assigning the score, which distracts from the most important questions:  Is there a concern with the care provided, and if so, how can that concern be addressed?

(2)        Numerical scores can’t capture the complexity of a case in the same way as a longer narrative.

(3)        Physician reviewers may be uncomfortable assigning low scores which indicate that care was “inappropriate” or “below the standard,” especially if those scores are accompanied only by short statements such as “care below the standard.”  As a result, they choose higher scores indicated “care appropriate” even if there are concerns.

(4)        Scores may put physicians on the defensive, especially since most scoring systems don’t allow for the provision of nuanced information.

These characteristics of scoring can undermine efforts to make the peer review process educational rather than punitive.  Accordingly, we recommend having a peer review/professional practice evaluation (“PPE”) system that focuses on actions and performance improvements rather than scoring.

September 9, 2021

Posted on by Courtney Patterson

QUESTION:
I heard that the Government might delay the implementation of the Surprise Billing Rules that are scheduled to go into effect on January 1, 2022.  Is that so?

ANSWER:
Partially.  On July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an Interim Final Rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021.  Effective January 1, 2022, the Interim Final Rule:

  • affords patients protection against balance billing and cost sharing for certain out-of-network services;
  • prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent;
  • requires providers to disclose federal and state patient protections against balance billing; and
  • describes complaint and dispute resolution processes for patients, payers and providers to address potential violations.

In an FAQ published on August 20, 2021, HHS said it will defer enforcement of the requirements to (1) make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges, (2) provide good faith estimate of expected charges, and (3) provide an Advanced Explanation of Benefits at least until July 1, 2022.  https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf

So, the bottom line is that the regulations are still scheduled to go into effect on January 1, 2022, but certain parts will not be enforced right away.

In the meantime, hospitals should begin to check their physician contracts, especially those with hospital-based providers like radiology, pathology, anesthesia and emergency medicine, to make sure they require the physicians to comply with the surprise billing rules and preferably require them to participate in any third-party payor programs in which the hospital participates.

Horty Springer and its partner LegalSifter will soon be announcing a new AI-empowered tool to make it easier to review your contracts for Surprise Billing compliance. Be sure to watch for it!

September 2, 2021

Posted on by Courtney Patterson

QUESTION:
“How many hospitals are requiring COVID-19 vaccinations?”

ANSWER:
Answer:  In our podcast in June, we stated that “more and more” hospitals were requiring the vaccine, noting first and foremost Houston Methodist Hospital, where the vaccine mandate was challenged by employees but was ultimately upheld in federal district court.  Also at that time, most hospitals in Washington D.C., the 6 hospital University of Pennsylvania Health System, and Community Health Network in Indianapolis, among others, required vaccinations.

Since then, a few things have happened to alter the landscape one way or another, such as the Food & Drug Administration approving the Pfizer vaccine, some states passing laws that prevent mandatory COVID-19 vaccines (Benefis Health System was going to require vaccinations before Montana passed a law preventing the mandate), and the Delta variant ripping through the country.

In any event, according to the American Hospital Association, around 1,500 hospitals currently require vaccinations, which it states is around 25% of hospitals in the country.  As for whether this number will go up – we’re going to say “more and more” hospitals will require the vaccine.  “May you live in interesting times” – sure, but not this interesting.

August 26, 2021

Posted on by Courtney Patterson

QUESTION:
“One of our medical staff members asked if, under the Health Insurance Portability and Accountability Act (“HIPAA”), he can inform a patient he is currently treating about the cancer history of a former, deceased patient who was a family member of the current patient.  The physician believes that this information will assist the patient in making choices about the direction of her treatment.  Can he do that?”

ANSWER:
The HIPAA Privacy Rule protects “individually identifiable health information,” which is defined to include a patient’s past physical health condition.  Thus, the deceased patient’s cancer history meets this definition.  However, since the patient is deceased, is the information still protected under the HIPAA Privacy Rule?  The answer to this question is “yes.”  The HIPAA Privacy Rule protects individually identifiable health information of deceased patients for 50 years following the date of the death of the individual.  Assuming the patient hasn’t been dead for 50 years, the patient’s individually identifiable health information is subject to the protections of the HIPAA Privacy Rule.

That being said, it is certainly important that a patient understand his/her family history, including risks for certain diseases and disorders so that he/she can proactively address those risks.  Here, the treating physician’s hands aren’t completely tied when it comes to counseling the patient on such matters.  He has a few options.  The physician can rely on an exception to the HIPAA Privacy Rule, which permits the disclosure of protected health information for treatment activities.  According to guidance issued by the United States Department of Health and Human Services, the “treatment” exception “allow[s] use and disclosure of protected health information about one individual for the treatment of another individual.”  If the physician is concerned that counseling on a family member’s cancer history does not definitively meet the definition of “treatment” under HIPAA, he has other options.  First, and most obviously, the physician can ask the patient if she is aware of any family history of cancer.  If not, the physician can obtain a written HIPAA authorization from a personal representative (e.g., the deceased patient’s executor or administrator) to disclose the information.  If the physician is unable to obtain a written authorization for whatever reason (such as an inability to locate the personal representative) or believes this is too burdensome, the physician can still make treatment recommendations without disclosing health information protected under HIPAA.  For example, the physician may recommend more frequent cancer screenings based on the family history to which he is privy.

August 19, 2021

Posted on by Courtney Patterson

QUESTION:
“Sometimes people who come to our ED simply leave without telling anyone if they have to wait any length of time. Are we on the hook for an EMTALA violation when that occurs?”

ANSWER:
Generally, you are not.  EDs are busy places and individuals may have to wait for care behind others based on priority and other factors.  Some individuals may decide to leave and seek care elsewhere.  That, in and of itself, is not an EMTALA violation.  However, there are several instances where CMS has cited hospitals for “coercing” an individual to seek treatment at another facility.  This type of activity – whether done directly by telling the individual they would be better off going somewhere else, or indirectly by routinely keeping people in the ED waiting so long that they get frustrated and leave– could create risk for the hospital.

However, assuming those types of activities are not in play, the best thing to do when an individual leaves the ED without being seen is to document the individual’s departure as soon as it is discovered and keep any other documentation that may have been created based on any interactions with the individual before he or she left.

August 12, 2021

Posted on by Courtney Patterson

QUESTION:
“What about those surprise billing rules?  We heard they aren’t effective until January 1, 2022.  Should we be doing anything now to prepare?”

ANSWER:
The Surprise Billing Rules are a big deal!  And there are steps you can take to be prepared for January 1, 2022.

On July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an interim final rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021.  Effective January 1, 2022, the interim final rule affords patients protection against balance billing and cost sharing for certain out-of-network services, prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent, requires providers to disclose federal and state patient protections against balance billing, and sets forth complaint and dispute resolution processes for patients, payers, and provides to address potential violations of the protections against balance billing and cost sharing under the No Surprises Act.

Among other protections, the Interim Final Rule prohibits balance billing for non-emergency services furnished at an in-network facility by an out-of-network provider, absent notice and consent.  In addition, out-of-network providers may only bill the patient such cost-sharing amounts similar to what the patient would pay had they received those services in-network.  This restriction includes out-of-network charges for ancillary services (e.g., radiology, anesthesiology, pathology, cardiology, and emergency medicine) provided at in-network facilities.  Any charges left over, however, may not be balanced billed to the patient.

In anticipation of these rules taking effect, you should review your hospital-based provider contracts.  If the contracts are silent on how those providers can bill patients, you could build language into the contracts requiring the provider to contract with every health plan that the hospital contracts with.  You can also put language in the contact prohibiting the out-of-network provider from balance billing.

This is one of several issues hospitals should be considering in preparation for the surprise billing rules’ January 1, 2022 effective date.  For more information on the Surprise Billing Rules, tune in to our audio conference. If you have any questions, or if you would like help reviewing your provider agreements, feel free to reach out to Mary Paterni at mpaterni@hortyspringer.com.