Author: hortyspringer

June 14, 2018

Posted on by hortyspringer

QUESTION:        We have an applicant for medical staff appointment who disclosed on her application that she was under probation for a time during her residency.  Despite our requests, she has refused to provide any additional information related to this matter.  She also has declined to authorize the site of her residency to release any information to us.

We have language in our bylaws stating that the burden is on the applicant to provide any information requested, or his or her application will be held as incomplete.  Is this a situation where we can enforce this provision?

 

ANSWER:            Most definitely.  Holding an application as “incomplete” is one of the best tools you have as a credentialer.  And when it comes to enforcing such a provision, the case law is on your side.

Numerous courts have held that a hospital can refuse to process an application that is incomplete.  For example, in a case with facts very similar to the situation described above, an Illinois appeals court held that an applicant must

“provid[e] all information deemed necessary by the hospital…as a condition precedent to the hospital’s obligation to process the application.”

Similarly, in a case where a physician up for reappointment refused to release information on pending malpractice claims, an appeals court in Tennessee ruled in favor of the hospital, finding that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

June 7, 2018

Posted on by hortyspringer

QUESTION:        Our hospital affiliated group signed an employment contract with a new surgeon.  Before we got very far with the credentialing process, he had moved to town and the Chief Medical Officer of the Group was putting pressure on the Credentials Committee to approve his application for appointment.  The problem is that there were multiple red flags we discovered, including a pending complaint with the state board, a very bad reference, and unexplained gaps in his professional experience.  If he had not been employed by our Group already, we would definitely not want to appoint him.  To make matters worse, we just learned that he resigned his appointment at the last hospital where he practiced and he’s in town.  What do we do?

 

ANSWER:            We hear some version of this problem on a regular basis from clients all across the country.  In many hospitals and health care systems, the recruitment and employment process are out of alignment with the credentialing process.  It is not uncommon (although it is very unwise) for employment decisions to be made, signing bonuses to be paid, and representations to be made to new recruits of the credentialing process being a “slam dunk” or a “done deal” before the Credentials Committee has reviewed the application.

Everyone who is applying for appointment must meet the same threshold eligibility criteria.  Everyone must bear the burden of demonstrating that they have the requisite:  (a) current competence; (b) technical skills; (c) clinical judgment; (d) adherence to the ethics of their profession; (e) good reputation and character; (f) ability to safely and competently exercise the clinical privileges requested; and (g) ability to work harmoniously with others.  When there are questions or concerns raised about an applicant, the application should be considered incomplete and not processed until those concerns are resolved.

Your credentialing process is the foundation for the quality of care that you deliver in your organization.  You should not take shortcuts or make exceptions, especially for employed physicians.  As hard as it might be, and as much pressure as they might feel, Medical Staff Leaders need to stay the course.  It is important that applicants are treated the same, regardless of whether they are being recruited and employed by the system or they are in private practice.  Keeping the burden on the applicant to address and resolve all concerns is the best course of action.  Medical Staff Leaders should also document, in detail, the concerns that they have.

Moving forward, find a way to align and coordinate your recruitment and credentialing efforts.  Bringing the people together who are responsible for these functions is an important first step.  Efforts should be undertaken to coordinate threshold criteria, objectives, and timelines.  It is also important to find a way to share information early on so the people who are doing the recruiting have the same information that Medical Staff Leaders will have when reviewing the application.  Whether they are working to recruit or credential physicians, the objectives should be the same – bringing high quality physicians into the organization in as timely a fashion as possible.

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

May 31, 2018

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QUESTION:        The case description in McGary v. Williamsport Reg’l Med. Ctr. references the fact that a hospital “denied” a physician’s application for failure to meet threshold eligibility criteria.  Is that really a “denial”?  Isn’t there a better way?

ANSWER:            YES, there is a better way.  Medical Staff bylaws or credentials policies should clearly incorporate the concept of “eligibility” to apply for appointment and/or clinical privileges and should include a comprehensive list of objective eligibility criteria that must be met in order for an applicant to be considered eligible.  The threshold eligibility criteria should address both appointment qualifications (things like not having had a license revoked by a state agency) as well as privilege qualifications (things like the volume requirements at issue in the case, or additional certifications).   The provision should clearly allow for the determination that an applicant is not eligible for appointment and state that applications from individuals who do not meet the threshold eligibility criteria will not be processed.

Incorporating such a step into the bylaws would require that individuals who request applications be sent a request for application form that outlines, in detail, the threshold eligibility criteria for appointment, and requests that the applicant provide proof that he or she meets those threshold criteria.  Alternatively, if the idea of incorporating a two-step request for application process is too onerous, this could also be accomplished by sending a detailed cover letter with the application form that sets out the eligibility criteria.  Those individuals who do not meet the “threshold” criteria for Medical Staff appointment and clinical privileges should be informed that they are ineligible to receive an application or to apply for staff appointment and privileges.  The bylaws should also clearly state that a determination that someone is ineligible to apply is not a “denial” of appointment that entitles the individual to a hearing, nor is it reportable to the state licensure agency or the National Practitioner Data Bank.

 

May 24, 2018

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QUESTION:        A physician new to our staff has taken it upon himself to personally “investigate” potential patient safety issues; he says that the medical staff committees are “useless.”  He is not a member of any peer review committee.  What can we do?

ANSWER:            He should be counseled and advised (in writing) of proper channels for expressing his concerns.  He should be asked to provide specifics so the matters can be reviewed.  It is reasonable for hospital and medical staff leaders to develop a statement of expectations, which can be placed into the bylaws, credentials or peer review policy, or adopted separately, requiring that all medical staff members and privileged practitioners cooperate constructively in the peer review, patient safety and performance improvement processes. Careful procedures must be followed, to track any state peer review protection statutory requirements.  It is also a fundamental principle of professionalism and respect that any practitioner who has concerns about hospital policies or other practitioners’ performance should take those concerns through appropriate channels. Otherwise, the practitioner raising these concerns could open himself or herself up to defamation claims by other practitioners whose care or practice he or she has criticized.

The peer review process depends on the willingness of all privileged practitioners to cooperate constructively. Having this responsibility set forth clearly in writing can be very helpful in the event a practitioner continues to act out inappropriately, and thus place the organization and medical staff leaders at risk. In the event an adverse action is necessary, it is best to have a solid written record that leadership reached out to the physician and provided specific directives as to avenues for presenting quality and safety concerns.  If the practitioner persists after the counseling and written follow-up, he or she could be placed on a performance improvement plan or conditional continued appointment. That way, if this practitioner decides to sue, it will be easier to defend the claim because he or she will have brought about the action by his or her own conduct.  You should, however, look into all the issues the practitioner has raised, through appropriate mechanisms.

May 17, 2018

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QUESTION:        We are analyzing the fair market value of what we pay our employed physicians.  How should we classify physicians who practice in more than one specialty?

ANSWER:            There is no definitive rule as to how a physician’s specialty should be classified for compensation or compensation analysis purposes.  For example, the MGMA Physician Compensation Survey directs survey respondents to list their specialty as the area where they spend 50% or more time.  Others may classify physicians into specific specialties based on their training or the specialty that the physicians hold themselves out in.

The Board certification of each physician is another criterion that can be used. In the end, specialty classification for compensation analysis purposes depends on the criteria used by those conducting the analysis.  The key is consistency.

As the Office of Inspector General stated in its Supplemental Compliance Guidance for Hospitals, that when analyzing physician compensation for compliance with the Stark law,

“hospitals should have appropriate processes for making and documenting reasonable, consistent, and objective determinations of fair market value.”
70 Fed. Reg. 4863 (Jan. 31, 2005). (Emphasis added.)

May 10, 2018

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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?

ANSWER:            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).

EXAMPLE CONTRACT LANGUAGE

Choice of Law and Venue

This Agreement shall be interpreted, construed, enforced and governed by and in accordance with the laws of the Commonwealth of Pennsylvania, with venue in the courts having jurisdiction over _______________ County, Pennsylvania.  The parties hereby consent to the jurisdiction of such courts.

April 26, 2018

Posted on by hortyspringer

QUESTION:        We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history.  Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000).  He also has two other cases that are pending.  We are reluctant to grant him appointment.  At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER:            Malpractice claims can be tough sometimes.  A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims.  The risk of recurrence of a malpractice claim increases with the number of previous paid claims.  Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years.  According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state.  This may help to put your applicant’s malpractice history in perspective.  Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history.  One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose.  Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims.  The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns.  If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed.  Denying the application is a last resort that is almost never needed.

April 19, 2018

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QUESTION:        Our hospital is accredited by the Joint Commission.  When we perform FPPE to confirm competence for new Medical Staff members, we typically evaluate the physician’s first five cases.  We’ve recently heard rumblings that this may no longer be acceptable.  What’s up?

 

ANSWER:            Based on recent reports from hospitals, it appears that Joint Commission surveyors are requiring hospitals to be more rigorous in how they perform FPPE to confirm competence.

The point of FPPE for new physicians is to confirm that a physician who looks good on paper (via the credentialing process) looks just as good in actual practice.  FPPE can have the added benefit of helping new physicians become familiar with the hospital (e.g., through conversations with proctors about standard operating procedures, etc.).

Evaluating a physician’s first five cases may not give the hospital a realistic view of the physician’s practice.  For example, if the physician is a general surgeon and those first five cases are all appendectomies, the hospital would have no confirmation of how well the physician performs other, unrelated procedures.

Fortunately, groups of privileges may require similar skills and judgment.  Thus, the evaluation of a practitioner’s ability to exercise one privilege may be used to confirm a practitioner’s ability to perform one or more other privileges.  These are sometimes referred to as “Index Privileges.”

Thus, while FPPE to confirm competence should generally include more than a physician’s first five cases, there’s no need to individually evaluate every privilege a physician has been granted.  Instead, hospitals can identify groups of privileges that require similar skills, and use those groupings to help them confirm that a physician is competent to perform all the privileges that have been granted.

 

April 12, 2018

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QUESTION:        Our hospital believes that it has received Medicare Part A and Part B reimbursement to which it is not entitled.  Must the hospital immediately return the money that it owes?

ANSWER:            While the hospital must refund overpayments of Medicare Part A and Part B reimbursement to which it is not entitled, you have 60 days from the date in which you identify the overpayment to refund the money.  However, even the federal government understands that you must be given a certain period of time to accurately identify whether an overpayment has occurred and to quantify the amount of that overpayment.

The Affordable Care Act’s overpayment rule for Medicare Parts A and B went into effect on March 23, 2010.  However, final regulations were not published until February 12, 2016 (the “Overpayment Rule”).  (See, 42 C.F.R. §401.301 to §401.305.)  We should note that the Overpayment Rule described in this response is limited to Medicare Part A and Part B claims.  There is a separate overpayment rule for Medicare Part C and Part D claims.

The Overpayment Rule requires providers to repay any overpayments of Medicare Part A and Part B payments within 60 days of the overpayment being “identified.”  However, the Overpayment Rule does not define exactly when an overpayment has been “identified,” which has caused a certain amount of confusion as to when the 60-day repayment period begins to run.

The Preamble to the Overpayment Rule recognized that the “identification” process will take time.  CMS appears to want to afford providers a certain amount of flexibility and recognizes that part of the identification process is quantifying the amount of the overpayment, which requires a reasonable and diligent investigation.  At the same time, CMS expects providers to use “reasonable diligence” and stated that “a total of 8 months (6 months for timely investigation and 2 months for reporting and retaining) is a reasonable amount of time, absent extraordinary circumstances affecting the provider, supplier or the community.”  However, it should be noted that while this time period was discussed in the Preamble, CMS did not include it in the final Overpayment Rule.

The Overpayment Rule also makes it clear that the repayment period is six years from the date that the overpayment is received.  So, you should see if similar overpayments were made at any time during this six-year look-back period.  The Overpayment Rule then provides that a Self-Disclosure to either the OIG’s Self-Disclosure Protocol or the Stark Self-Referral Disclosure Protocol (“SRDP”) is an exception to the 60-day repayment obligation.  The Overpayment Rule states that if a provider makes a Self-Disclosure to either the OIG or CMS, then no overpayment is due the government until the Self-Disclosure has been resolved (despite the fact that it typically takes years to resolve a Self-Disclosure).

What is important to keep in mind is that once an overpayment has been identified, the hospital must act.  If the hospital knows, or should know, that it has received an overpayment, but fails to repay the overpayment within the 60-day period required by the Overpayment Rule, the hospital could be alleged to violate the False Claims Act.

April 5, 2018

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QUESTION:        In regard to leaves of absence, our Medical Staff Credentials Policy says that practitioners’ clinical privileges will expire at the end of their natural term.  Is that right?  Can’t a practitioner be reappointed during the LOA?  I couldn’t find anything specifically addressing that anywhere, but we have a loyal and long-standing member of the Medical Staff who is out on leave and who is up for reappointment.  Are we supposed to kick him off of the staff and make him apply as an initial applicant after his medical leave is resolved?

 

ANSWER:            It is our advice that hospitals not reappoint members of the Medical Staff, or renew clinical privileges for a practitioner, while they are out on leave.  The reason is that when they are on leave, there is something about their situation that prevents them from practicing or fulfilling the duties of Medical Staff appointment and, in turn, hospital and Medical Staff leaders would need to learn about that situation and resolve any concerns (for example, the health status of the individual) prior to making any decision about their appointment and privileges.  For this reason, it makes sense not to process any reappointments while the individual is away.

We recommend that your Bylaws or Credentials Policy language regarding leaves of absence state that if membership or privileges expire while an individual is on leave, the individual may later submit an application for “renewal,” rather than being required to apply as an initial applicant at the time of reinstatement:

If a practitioner’s current membership and/or clinical privileges are due to expire during the leave, they will expire at the end of their natural term.  The practitioner will be required to submit an application for reappointment and/or renewal of clinical privileges as part of the reinstatement process.

Note that individuals whose membership and/or privileges expire while on leave are uniquely able to apply for renewal, rather than apply as initial applicants, despite having a lapse in appointment/privileges.  The distinction can, in some situations, be important (for example, for practitioners who have been grandfathered from meeting current board certification requirements, instead having to satisfy only those requirements in place at the time of their initial appointment).

As part of the renewal application (which would be processed at the time the practitioner applies for reinstatement), the individual should be asked to explain any outstanding concerns that arose in conjunction with the leave (e.g., health status, lapse of currency).