Author: hortyspringer

November 15, 2018

Posted on by hortyspringer

QUESTION:        If we decided to implement standardized personality tests across our institution, would this raise any legal concerns?  Does the EEOC have any guidance on this?

ANSWER:            Personality tests raise significant legal concerns and should be approached cautiously.  Although it is becoming increasingly common to see personality testing as a standardized part of job screening, the federal Equal Employment Opportunity Commission (“EEOC”) has raised concerns that such testing can have unlawful discriminatory impacts.  For example, the EEOC recently reached an agreement with CVS following a probe over whether the drugstore chain’s use of personality tests had a negative impact on jobseekers based on their race and/or national origin.  (See here for the EEOC press release.)

The exact nature and extent of the legal risk vary depending on how the test is designed and administered.  As a general rule, any employer who uses a personality test (or similar selection procedure) should be prepared to justify its use under close scrutiny.  Even if a test is administered without any intent to discriminate, it might still have an unlawfully disproportionate impact on a protected class of people (for example, disproportionately excluding people based on race, religion, sex, or other protected factors).  Employers must have strong evidence showing that the selection procedures/tests are job-related and consistent with business necessity and should be confident that their evidence can persuade skeptical regulators.

Unless you have well-documented empirical evidence to defend the use (and necessity) of a particular personality test, we would generally encourage you to avoid this kind of screening.

November 8, 2018

Posted on by hortyspringer

QUESTION:        Is a subpoena from a state board of medicine treated just like any other subpoena for purposes of the Health Insurance Portability and Accountability Act (“HIPAA”)?  In other words, is it true that the hospital can’t release a patient’s Protected Health Information to a state board of medicine unless it first takes certain steps, such as getting a qualified protective order from a court, or informing the patient?  Thanks.

ANSWER:            No, a subpoena from a state board of medicine is not treated like any other subpoena for HIPAA purposes.  Protected Health Information (“PHI”) which is the subject of such a subpoena can be released to a state board of medicine without a qualified protective order or notice to the patient.  HIPAA provides that PHI may be disclosed to a “health oversight agency” for “licensure or disciplinary actions” necessary for oversight of the health care system.  (45 C.F.R. §164.512(d).)  HIPAA also states that a state board of medicine is a “health oversight agency.”  (45 C.F.R. §164.501.)  That said, if certain categories of particularly sensitive information are involved (such as mental health, drug/alcohol, or HIV/AIDs), state law should be consulted to see if it offers greater protections to the information.

November 1, 2018

Posted on by hortyspringer

QUESTION:        We are considering having a Credentials Verification Organization (“CVO”) perform primary source verification and other required verifications for our credentialing process.  Do we need to have some sort of agreement in place?  If so, what should that agreement include?

ANSWER:            Regardless of whether you are using an internal CVO (i.e., one that is a part of your organization) or an external, independent CVO (i.e., one that has no corporate affiliation with your hospital), there should be an agreement in place between the CVO and the hospital.

An agreement should define the obligations of the CVO, including the services that it will provide.  The agreement should also specifically identify the information that will be verified and the sources that will be used for verification purposes.  If ongoing monitoring of practitioners’ credentials is a part of the services the CVO will provide, the agreement should state this and indicate the credentials that will be monitored (e.g., Medicare and Medicaid sanctions and exclusions).

Furthermore, sharing of confidential credentials information should be addressed and include provisions on how sensitive information such as National Practitioner Data Bank reports and drug or alcohol treatment information will be handled and shared.  If the hospital is involved in delegated credentialing for third-party payors, there are special considerations for sub-delegation agreements, which would include agreements with an external CVO to perform verification activities.

Specifically, the agreement must require semiannual reporting of the CVO to the hospital on its conduct of the contracted-for activities, describe the process by which the hospital evaluates the CVO’s performance under the agreement, and describe the remedies available to the hospital if the CVO does not fulfill its obligations, including revocation of the delegation agreement.

October 25, 2018

Posted on by hortyspringer

QUESTION:        We recently received an application from a nurse practitioner who crossed out the line on our application form asking for the name of the collaborating/supervising physician and wrote that he didn’t have a collaborating physician because our state allows nurse practitioners to practice independently.   Is this true?  Do we have to change our forms and process?

ANSWER:            It depends, but probably not.  A state’s decision (through modification of the professional licensing statutes and regulations) to expand the scope of practice for an advance practice nurse, and to allow such practitioners to practice independently in that state, does not generally supersede the policy decision of a hospital that such practitioners must still work in collaboration with a physician appointed to the medical staff in that hospital setting.  The only exception would be if the changes in the state law were to actually “mandate” that such practitioners be permitted to practice independently — in all clinical settings.  In our experience, with a handful of exceptions, this is not what most states have done, at least not yet.

While it may be a question that the medical staff and board wish to consider further, there is a significant difference between a statute that permits independent practice and one that mandates independent practice.  If the hospital policy continues to require a collaborative relationship, this applicant should be informed that he or she is ineligible to apply unless he or she can supply evidence of a collaboration agreement with a physician.

October 18, 2018

Posted on by hortyspringer

QUESTION:        Our hospital has adopted a mandatory flu vaccine policy for all employees and our MEC thinks it makes sense to also require vaccines for all private practice providers who are credentialed at the hospital.  What is the best way to do this?

ANSWER:            This question seems to be coming up often — another sad reminder that the summer season has transitioned to the flu season!  Many medical staff leaders see the value in addressing this issue consistently across all providers, regardless of whether they are employed or not.

The simplest solution would be to modify your eligibility criteria in your Medical Staff Bylaws or Credentials Policy so that every applicant and medical staff member would be required to provide evidence of an annual influenza vaccination.  Of course, any exemptions in your hospital’s policy for employees could also be recognized (i.e., allowing providers to wear a mask whenever they are in the hospital if, for example, a medical condition would prohibit them from obtaining a vaccination).

Have other medical staff questions?  Then join Barbara Blackmond and Ian Donaldson for The Complete Course for Medical Staff Leaders, where we will cover practical, real-world approaches to managing all types of Medical Staff leadership dilemmas, including how to modernize the eligibility criteria in your Medical Staff Bylaws.

October 11, 2018

Posted on by hortyspringer

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QUESTION:    Our peer review process uses a case review form that asks physicians to score cases:

1 is  “exemplary care,”
2 is “meets the standard of care,”
3 is “below the standard of care,” and
4 is “significant deviation from the standard of care.”

It seems most of our cases end up being a 2, even when there are concerns.  Is there a better way?

 

ANSWER:      Yes!  Ditch the scoring, and adopt a new form that focuses on narrative explanations to answer three key questions:

(1) is there a concern?;
(2) if so, what’s the nature of the concern?; and
(3) how can the concern be addressed?

One problem with “scoring” cases (or otherwise categorizing them) is that the focus of the review becomes assigning a score rather than fixing any concerns that are identified.

Also, physician reviewers may be uncomfortable indicating that a physician’s care was “below the standard of care.”  As a result, they choose a more favorable score even if there are concerns.

If reviewers are willing to say that care falls “below the standard” or was “inappropriate,” the physician who receives the score is more likely to be on the defensive.  This undercuts efforts to make the peer review process educational rather than punitive.

For more tips on how to make your peer review process more effective, join us in San Francisco from Nov. 15-17 for The Peer Review Clinic.

September 27, 2018

Posted on by hortyspringer

QUESTION:        Is the peer review privilege the same thing as peer review immunity?
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ANSWER:            No, there is a difference.  The peer review privilege protects documents from disclosure in certain kinds of court cases.  Peer review immunity protects participants in the peer review process from having to pay money damages if they are sued (so long as they meet certain conditions).  To put it very simply, privileges protect documents; legal “immunities” protect people.

 

September 20, 2018

Posted on by hortyspringer

QUESTION:        What are the responsibilities of our hospital’s Board of Directors (“Board”) with regard to oversight responsibilities of the Medical Staff?

ANSWER:            Although it is important to check your state laws and standards set forth by your accrediting organization, a good starting point would be to refer to the Medicare Conditions of Participation (“Medicare CoPs”) pertaining to the Board’s responsibilities, including its oversight responsibilities of the medical staff.  For instance, the Medicare CoPs place the ultimate responsibility for quality of care provided at a hospital and monitoring the care provided to patients on the Board.  Among others, the Medicare CoPs require the Board to define criteria for and appointing members to the medical staff, grant clinical privileges, ensure the existence and approval of medical staff bylaws, and approve various services in the hospital.  Ultimately, the Board holds the responsibility for the quality of patient care in the hospital.  The Board and medical staff engage to provide effective credentialing, privileging, and peer review and quality management processes.

Although responsibilities provided by the Medicare CoPs are extensive, do not forget to consult your applicable state laws as well as the standards of your accrediting organization, which may dictate further oversight responsibilities of the Board.

September 13, 2018

Posted on by hortyspringer

QUESTION:        We are reviewing an application from a new applicant who has excellent credentials with respect to his education, training, experience and current clinical competence.  However, the applicant has had trouble working with others and was even subject to a behavioral performance improvement plan at his last hospital.  The Credentials Committee is split over how important behavior really is when a candidate otherwise has excellent credentials.  How should we proceed?

ANSWER:            This is a question we hear often.  You finally find a physician who has excellent credentials, but acts out a little.  While everyone has a “bad hair day” once in a while, it is a mistake to bring someone into your organization whose behavior will undermine your culture of safety.

This is the terminology used by The Joint Commission when it issued its 2008 Sentinel Event Alert.  According to the Sentinel Event Alert:

“Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and managers to seek new positions….All intimidating and disruptive behaviors are unprofessional and should not be tolerated.”

The Sentinel Event Alert was followed by the adoption of a leadership standard that required hospitals to adopt a code of conduct or professionalism policy.

Recognizing the importance of working professionally and respectfully with others, most credentials policies require applicants to demonstrate an “ability to work harmoniously with others, including interpersonal and communication skills sufficient to enable them to maintain professional relationships with patients, families, and other members of health care teams.” The bottom line is that behavior matters in the quality of care you provide in your hospital.

So in credentialing the applicant, get as much information from previous hospitals and past employers about his or her ability to work with others.  Ask for a copy of the behavioral performance improvement plan.  Ask for a copy of the underlying concerns that led to the adoption of the performance improvement plan.  Request a copy of any correspondence that relates to behavioral concerns.  And don’t forget to make follow-up phone calls to references and to others who may have worked with the applicant in the past to get a candid evaluation of any problems.

A physician who experienced a problem period because of personal issues, but then improved should not be problematic.  A physician with a longstanding pattern of inappropriate and unprofessional behavior is not likely to change when he or she lands at your hospital.  Don’t forget the middle option of conditional appointment which can also be useful in laying out expectations and consequences should the inappropriate behavior reoccur.

Please join us in our national program – Credentialing for Excellence – where we discuss this and other credentialing challenges.