QUESTION:
Our chair runs the most horrible meeting ever.  The problem with that is that I’m the chair!  Do you have any tips that could help me?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Do we ever.  The chair is the presiding officer and being the chair is hard work, so here are some tips for the chairs, or anyone, to have an efficient meeting:

Tip #1. Start on time.  If a meeting isn’t started on time, chances are it won’t end on time.  Starting on time shows that the chair has expectations for his or her meeting.  If the chair is taking the meeting seriously, the participants will more than likely take it seriously, and not treat it as a weekly, monthly, etc., casual get‑together.

Also, if a meeting always starts on time, the participants will more than likely be there on time.  No one likes to walk into a meeting late.  But, if the meeting never starts on time, the participants may start thinking “Well, it’s 15 minutes past the start time, so the meeting probably didn’t start, but if it did, I’m not going to be that late.”  Or, being late becomes a joke “I can believe you started already – it’s only 15 minutes past the start time!  What happened, did everyone synchronize their watches?”

Being late to a meeting disrupts the meeting.  The participant who is late may not pick up on the discussion, or if the chair summarizes what has already been discussed for the late-comer, the chair may “lose” those who were there on time.

So, start on time, no matter who is in the room, don’t summarize for late-comers – that can be done after the meeting, and no excuses for being late.  It sounds rigid, but when the word gets around that you start on time, that’s one building block in running an efficient and effective meeting.

Tip #2. Encourage participation.  The chair should get every attendee involved.  Some attendees may not speak because he or she may be shy, or feel intimidated, but the chair should draw those attendees in to get multiple points of view.

Tip #3. Limit the conversation.  This doesn’t mean that the chair should not hear from everyone who wants to contribute their point of view.  The purpose of a meeting is to get different points of view, then make a decision.  What “limit the conversation” means is that if a couple of people 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, because chairs don’t want to be seen as dictators, 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 #4. 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 Medicare Condition of Participation?  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 because there are so many conflicting points of view that won’t be able to be resolved at the meeting.  The chair should be able to recognize that no matter how much more discussion there is, the issue won’t be resolved.  So, at that point, 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 #5. End on time.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, the majority will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  The chair should remember that he or she is dealing with attendees who have volunteered their time to participate on this committee and be at this meeting, so respect their time.

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.

It’s just a fact that 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.

Final Tip: Introduce visitors.  The chair should introduce visitors, or participants who are attending their first meeting and may not know everyone in the room.  This will make them feel welcome, and keep everyone focused on the meeting instead of asking, or thinking “Who is that, and why are they here?”

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.

QUESTION:
We’re a hospital located in Pennsylvania and want to enter into a services agreement with a company in South Carolina.  The company has a good reputation, but has filed lawsuits against a few hospitals for breach of contract.  One of our concerns is that if the relationship doesn’t go well, it would be extremely expensive and disruptive to defend a lawsuit in South Carolina. What can we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
You should make sure the agreement contains a “Choice of Law and Venue” provision that favors the hospital.  This provision states where a lawsuit is to be filed (venue), and which state’s law applies.  If the hospital drafts the agreement, it should give itself the home field advantage by stating that Pennsylvania law applies and any lawsuit is to be filed in courts having jurisdiction over the county in which the hospital is located.  If the company drafts the agreement, it will most likely give itself the advantage.  However, even if the company drafts the agreement, you can still try to negotiate with it so that the hospital has the advantage.  How the negotiations turn out is, of course, about leverage.

Home field advantage is huge too – the party that has it knows the state’s law, knows the judges, and knows the courtroom.  Also, the party with the advantage does not have to find local counsel to work with its in-house lawyers, or incur costs for itself and/or its lawyers by traveling to and from the location of the lawsuit (which can be an enormous cost and inconvenience in the case of extended litigation).

If you have a quick question about this, e-mail Nick Calabrese at ncalabrese@hortyspringer.com.

QUESTION:
Why the concerns with private equity groups acquiring and/or managing physician practices?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Concerns have been voiced by many observers about private equity acquisition of physician groups and other health care providers. A number of studies have concluded that private equity acquisitions lead to:  decreased quality of patient care and increased patient safety risk, higher costs for patients, taxpayers, and payers;understaffing and high employment turnover in hospitals, as well as anti‑competitive practices and possible fraud and abuse.  Additionally, according to one recent study private equity accounted for about one-fifth of the bankruptcies of healthcare companies that were filed in 2023 (a trend that is projected to continue).

One particular area of concern is anti-competitive practices involving hospital-based physicians.  Hospitals have historically entered into exclusive contracts with hospital-based physician groups to provide anesthesia, radiology, pathology and emergency medicine services.  Both the FTC and the courts have long recognized that exclusive contracts with hospital-based physicians can be pro-competitive. See, e.g., Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984); In re Burnham Hospital, 101 F.T.C. 991 (1983).  In almost every case where exclusive physician contracts with hospitals have been challenged, they have been upheld.

Recently, private equity groups have been acquiring hospital-based physician groups with the express purpose of obtaining market dominance and leverage in payer negotiations.  Some have been so bold as to boast about this business model to investors and capital sources, saying that their objective is to gain critical mass in markets to gain negotiating leverage with hospitals and payers.  National physician management companies first acquire hospital-based physician groups that have exclusive contracts with a number of hospitals in a given market.  They then bind the physicians and other providers in the group to non-compete covenants.  This locks the physicians into their current positions since leaving the employ of the group would require them to relocate.  This in turn tends to suppress wages for the physicians due to their lack of alternative employers and leads to staffing shortages due to the suppressed wages.  This business model also leaves the hospitals with little alternative but to stay with the private-equity owned group, since the group’s restrictive covenants with providers would prevent the hospital from hiring the providers after the contract with the group expires. This further adversely affects competition since the hospital would be barred from directly contracting with the providers employed by the exclusive group, as would other physician groups that might be interested in bidding for a new exclusive contract when the existing one expires.

Private equity owned groups have also used the threat of litigation to get their way in states where non-compete covenants with physicians have been banned or restricted by statute or court decisions.  Whether they rely on creative interpretations of the law or the shear in terrorem effect of litigation on individual physicians, this tactic is likely to continue notwithstanding the FTC’s recent final rule on noncompete agreements absent specific enforcement actions targeting these practices.

Other areas of concern include improperly directed referrals, abuse of the Stark in-office ancillary services exception, and management services agreements.  These are just a few examples of practices by private equity firms that have led to decreased competition and increased costs in the healthcare industry. As the HHS Office of Inspector General recently stated:

The growing prominence of private equity and other forms of private investment in health care raises concerns about the impact of ownership incentives (e.g., return on investment) on the delivery of high quality, efficient health care.  Health care entities, including their investors and governing bodies, should carefully scrutinize their operations and incentive structures to ensure compliance with the Federal fraud and abuse laws and that they are delivering high quality, safe care for patients.  An understanding of the laws applicable to the health care industry and the role of an effective compliance program is particularly important for investors that provide management services or a significant amount of operational oversight for and control in a health care entity.^[1]

Federal agencies are being urged to look more closely at these abusive practices and bring enforcement actions where appropriate.

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

If you want to learn more about the OIG, the Anti-Kickback Statute, the Stark Law, the False Claims Act, exclusive agreements, the recent FTC regulations on noncompete agreements, and much more, check out our latest episode of the Kickback Chronicles podcast and also join us at the Hospital-Physician Contracts and Compliance Clinic Seminar in Las Vegas from November 14-16, 2024!

^[1]  General Compliance Program Guidance, U.S. Department of Health and Human Services Office of Inspector General at pages 79-80 (Nov. 6, 2023) https://oig.hhs.gov/documents/compliance-guidance/1135/HHS-OIG-GCPG-2023.pdf.

QUESTION:
Who is included when the MEC meets in executive session?  Just members?  Just voting members?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is not a universal definition of the term “executive session.”  With respect to organizations/bodies that are subject to an Open Meetings Act, an “executive session” is often defined by law as a meeting that excludes members of the public.  For other organizations/bodies (not dealing with an Open Meetings Act), the term “executive session” might be used to refer to a meeting that excludes guests, while including all members.  Alternatively, some organizations use “executive session” to refer to meetings that exclude all guests and non-voting members (thus including only voting members).  Some Medical Staffs have historically used the term to refer to meetings that include only physicians or that include only those individuals invited to participate by the presiding officer, though it is not always clear that those organizations are operating as per their Bylaws/policies.

In the absence of Bylaw/policy language authorizing and/or defining executive sessions, it’s always a good idea to check state law to determine whether it might govern the composition and activities of committees.  Some nonprofit corporation codes provide basic rules for how meetings and such should be held (e.g., whether action can occur by ballot in lieu of meeting, whether participants can be present via electronic or telephonic connection).  It is possible that these statutory or regulatory schemes may address the issue of executive sessions.  In most cases, it has been our observation that the general rule is that anyone who is a “member” of a committee (or other body, such as a department or Board) would be entitled to notice of meetings and entitled to attend meetings.  Further, if any Bylaw/policy document gave an individual the right to attend as a guest, that individual would be entitled to notice and to attend (but not necessarily to exercise other duties of membership, such as voting or deliberation).

Whenever the law does not specifically define the concept of executive sessions, it is up to the individual organization to use its discretion in defining the term (and/or deciding whether to use executive sessions at all).  What’s most important is that if you wish to use executive sessions to discuss certain topics (e.g., confidential peer review information), that should be authorized in the Medical Staff Bylaws and related governance documents.  And, in most cases, you would probably want to provide the chairperson/presiding officer with the authority to commence an executive session and have final authority for applying rules regarding who may be present at such sessions.

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

QUESTION:
Can medical staff peer review or quality information be shared with the hospital’s affiliated employed physician group?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
It depends. All too often the reflexive answer to this question is “No way!  We’ll waive the privilege.”  But that’s not always the case.  In some situations, failing to share information within a hospital or health system could result in liability or even put patients in danger.  While each situation is different, each state’s law is unique and the facts and circumstances of a particular request will dictate the outcome, here are a few questions that might be helpful in analyzing whether sharing information could jeopardize the peer review privilege and the pros and cons of doing so.

• What are you sharing?

o          Is it covered by the statute/privilege in the first place?

• Who are you sharing it with?

o          Is the recipient organization entitled to the privilege or statutory protection?

• What is it going to be used for?

o          E.g., Does the statute limit the use of the information to “peer review purposes”?

• Does the peer review protection statute in question address waivers?

• Do court cases in your state address waivers?

• Does the peer review protection statute just confer a privilege or is there a statutory mandate of confidentiality?

There’s no one answer and a deeper analysis is always a good idea.  But hopefully this simple algorithm will help guide that process.

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