Author: hortyspringer

January 18, 2018

Posted on by hortyspringer


QUESTION:        Our Active Staff category requires members to take emergency call.  In many specialties, we struggle with finding physicians willing to take their fair share of call.  In orthopedics, however, we have a group based primarily at another hospital outside our system who own their own diagnostic facilities, to which they end up referring many patients from our ED for services we can provide.  A few patients have expressed concerns about why they were sent to another facility.  A few patients have reported that the orthopedic surgeon said the other facility was much better and newer, with no wait time.  What can we do?


ANSWER:            The purpose of the emergency call obligations connected to Active Staff appointment and privileges is to enable the hospital to comply with EMTALA and provide care to patients who come to the hospital’s ED, not to provide a source of referrals of patients to facilities owned by on-call specialists.  If a patient needs an X-ray, in order to evaluate and stabilize an emergency medical condition, the patient should not be sent elsewhere (unless the patient specifically so requests) because that could implicate EMTALA.  Follow-up care not needed to treat or stabilize the condition that brought the patient to the ED could be provided elsewhere, and patients can choose where to receive follow-up care.  However, on-call specialists should not be marketing their facilities by in essence disparaging the hospital’s services.  (Of course, if patients are choosing to receive tests and other services elsewhere, upgrading facilities and adding staff to minimize wait times is a good idea, if feasible.)  Some hospitals limit call in some specialties to physicians who are under contract (or employed).  The Board can determine how call will be handled in different specialties.  Call is a responsibility, not a right or a “privilege.”  (It should not be included on delineation forms as a privilege.)  So long as departments don’t vote (which could give rise to conspiracy allegations), the Board and MEC would be free to establish how the hospital will satisfy its EMTALA obligations.

January 11, 2018

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QUESTION:        Our Medical Staff Services Department is reviewing an application for a physician who has been recruited by the Medical Center as an employee. The physician does not meet all of the eligibility criteria in the Medical Staff Credentials Policy, but we understand the contract has already been signed.  What should we do?

ANSWER:            Unfortunately, this is an all-too-common problem. “Credentialing 101” says that an application from a candidate who does not satisfy the Medical Staff’s threshold eligibility criteria should never be processed – even in an employment situation.  So, hopefully, the contract contains a provision that states the contract is conditional upon the physician being appointed to the Medical Staff and obtaining clinical privileges in the relevant specialty.

To avoid this situation in the future, organizations should strive for coordination between their Medical Staff Services Department and their recruiters.  This means educating recruiters about the minimum qualifications set forth in the Medical Staff Credentials Policy, as well as giving your recruiters a list of “red flags” that will slow an application up during the credentialing process (e.g., gaps in experience, negative references, etc.)

To make sure your Medical Staff leaders have the knowledge and tools that they need to manage difficult issues like this, please join Barbara Blackmond and Ian Donaldson at The Complete Course for Medical Staff Leaders.

January 4, 2018

Posted on by hortyspringer

QUESTION:        In the past, our reappointment process has been rather perfunctory.  The names of physicians and other practitioners who are up for reappointment get put on a list which is approved by the Credentials Committee, passed on to the Medical Executive Committee, and then forwarded to the Board in a consent agenda.  What steps can we take to make our reappointment process more meaningful?

ANSWER:            This is a great question.  Many hospitals are like yours and muddle through the reappointment process without getting a lot of bang for their effort.

The reappointment process, which includes the renewal of appointment and clinical privileges, is an important opportunity to review and confirm that a practitioner satisfies all of the core competencies.  To make the reappointment process more meaningful, you must have data.  The ongoing professional practice evaluation reports that you generate for all practitioners will provide a good starting point since they evaluate competence in a variety of areas throughout the appointment term.

You should also review and consider any licensure or disciplinary action, as well as any malpractice claims, settlements, or judgments that occurred during the previous reappointment term.  Of course, you should be receiving notice of and reviewing all of these events as they occur, but the reappointment is a good time to verify that the review has taken place.

It is also important that you review the clinical privileges that a practitioner is requesting at reappointment.  If a practitioner has not satisfied volume requirements for a privilege or has not exercised a privilege that is volume?sensitive, the practitioner may be ineligible to seek the privilege or may be required to provide additional evidence of current clinical competence before having the privilege renewed.

And it is important to consider your other quality data at reappointment.  Make sure the Credentials Committee, Medical Executive Committee and Board are aware of any peer review actions, including informational and educational letters, collegial interventions and performance improvement plans.  While these activities may not affect the final reappointment decision, they may warrant that the practitioner receive a different letter at reappointment which reflects clinical or behavioral matters that are being reviewed and addressed through the peer review process.

December 21, 2017

Posted on by hortyspringer

QUESTION:        Is suspicion of alcohol or drug use while on hospital premises reason enough for Administration or medical staff leadership to act?

ANSWER:            First, you need a game plan.  By that, we mean a physician health/wellness policy.  Many hospitals and medical staffs have a separate policy dealing with such issues, including substance abuse.  These policies routinely provide for drug or alcohol screens when there is a suspicion of impairment, who may request them and the consequences if the physician declines.

Suspicion is reason enough to act.  In accordance with the policy, anyone should be able to report a concern – any practitioner, employee, patient, family member, or any other individual.  The concern should be reported to the Chief of Staff, Chief Medical Officer (“CMO”), or another medical staff leader, who will then refer it to the committee handling the matter (e.g., either a “Leadership Council” of experienced leaders or a physician health committee), which will assume primary responsibility for an issue.

Individuals filing a report do not need to have “proof,” but should describe the facts that form the basis for their suspicion, such as an odor of alcohol, problems with judgment or speech, diminished motor skills, behavior changes and mood swings, and unexplained drowsiness or inattentiveness, among other things.

If the physician is providing services at the hospital, or is expected to provide services in the very near future (e.g., a few hours) such that the committee would not have time to meet prior to the physician’s provision of services, the Chief of Staff, CMO, or other medical staff leader should be required to immediately and personally assess the physician, who may be required to submit to a blood, hair, or urine test, or other appropriate evaluation, to determine his or her ability to safely practice.  If the physician refuses, that should result in the automatic relinquishment of the physician’s clinical privileges pending review of the matter by the committee.

Another option is to ask the physician to voluntarily refrain from exercising his or her clinical privileges or agree to conditions on his or her practice while the matter is being reviewed.  If the physician agrees to voluntarily refrain from exercising his or her privileges, his or her patients may be assigned to another individual with appropriate clinical privileges.  If the physician does not agree, a precautionary suspension may be considered in accordance with the Credentials or Health/Wellness Policy.

For more on practitioner health and wellness, join Linda Haddad and Phil Zarone for

“Something Smells Fishy Around Here…”
January 9, 2018

– the first of our Grand Rounds 2018 series – “Crisis!!!  Now What?”

December 14, 2017

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws require, as a threshold eligibility criterion, that an individual be board certified or become board certified within five years of joining the medical staff.  A long-time medical staff member, about whom we have no quality concerns, recently allowed his board certification to expire.  We notified him that he needs to recertify or will not be eligible to apply for renewal of appointment at the end of his current term.  He said that he does not read the Bylaws that way and since he was board certified within five years of joining the medical staff, he satisfied the threshold criterion related to board certification.  Is he right?  We’ve always enforced the board certification requirement as requiring current certification.

ANSWER:            Board certification has certainly become a contentious issue lately.  There is no universal best practice regarding whether to require recertification or maintenance of certification – but what is important is that the Medical Staff Bylaws and related documents (such as the Credentials Policy, if you use one) be clear regarding what is required, so that no medical staff member will be caught off guard and the leadership will not have to spend its time engaged in disputes over interpretation.

The intention in your Bylaws language is clear to me (and probably everyone else who works in medical staff leadership and credentialing).  When the Bylaws language was drafted, it was clearly meant to require current board certification by members, but to create an exception for those who are new to the organization, to give them time to “get up to speed” with your requirements.  From a technical standpoint, however, any medical staff member could argue that he or she only needs to meet one of the requirements set forth in the applicable threshold criterion.  That is, they either need to be board certified OR achieve certification within five years.  Clearly, the physician at issue in your case is taking advantage of the way the provision was drafted to argue that he has satisfied the second requirement and, in turn, has fulfilled the certification requirement indefinitely (without any need to recertify or maintain certification).

So, can you enforce the requirement that individuals be currently board certified based on your existing language?  The answer is not entirely certain.  If you have a set precedent of consistently interpreting your Bylaws language as requiring certification that is current – and applying the five year exception provision only to new members of the medical staff – there is a good chance that you can take the position that the Bylaws language requires current certification.  Nevertheless, because collegiality, transparency, and fairness are important in credentialing, it may make sense to at least consider whether the current situation can be dealt with in a way that pleases everyone.  Could a one-time waiver be granted, thus allowing the physician whose certification has lapsed one additional appointment term to recertify?  Doing so may keep the peace while the leadership works to adopt Bylaws language that clarifies this matter for everyone.

To that end, at this point, it would be wise to update the language of the Medical Staff Bylaws to more clearly state any requirements for recertification and/or maintenance of certification and to specify how lapses will be managed (immediately or at reappointment, for example).  Further, most hospitals and medical staffs have, in recent years, moved away from Bylaws language requiring certification within a number of years after joining the medical staff.  Consider instead adopting language stating that if an individual is not certified, but completed his or her training within the past [X number] of years, he or she will be eligible, but must become certified prior to that deadline or will become ineligible for renewal thereafter.

December 7, 2017

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QUESTION:          An applicant answered “no” in response to a question on our application as to whether he ever resigned clinical privileges while under or in return for not conducting an investigation.  There was a report in the NPDB from another hospital stating that he surrendered privileges while under investigation.  We advised him that pursuant to our credentialing policy, processing of his application would stop.  His lawyer has written a letter stating that he was filing suit against that hospital based on allegations that the investigation was initiated in retaliation for whistleblowing and that it is unfair to stop processing the application.  Must we process the application?

ANSWER:            No.  When the physician signed the application, he agreed to be bound by your bylaws and credentialing policy.  A signature on an application constitutes a representation that the information provided was accurate.  Even in the absence of clear language in bylaws or a credentialing policy that a misstatement or omission is grounds to stop the processing, an application would be deemed incomplete.  Due diligence would require extensive commitment of resources; it would be very difficult to assess the allegation (and essentially second-guess what that other hospital did).  That’s why having such language that processing will stop is helpful.  Allegations that a peer review process was based on retaliation for whistleblowing are becoming increasingly common.  And, the proper way for the physician to have responded would have been “yes,” with an explanation.

 

November 30, 2017

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QUESTION:        Is McRib really back?

ANSWER:            You bet it is! (for a limited time only, of course)

And so is Horty Springer’s Physician-Hospital Contracts Clinic — back by popular demand!

Join Henry Casale and Dan Mulholland in Austin in March for the latest legal developments affecting hospital-physician financial arrangements — and a Whole Lot More. But hurry. Just like that saucy sandwich we all love, the Contracts Clinic only comes around every couple of years. Don’t Miss It!

November 16, 2017

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QUESTION:        I took the minutes at committee meetings for years, and if there was any doubt as to what someone said, my minutes would give a word-for-word accounting of the discussion.  We just hired someone new to take the minutes, and I was shocked at the small amount of information recorded.  What should be in the minutes?

ANSWER:            The most important thing that minutes should do is record the actions taken at a meeting, but not the discussions that took place.  There are “Do’s” and “Don’ts” for meetings, and we’ll start with the “Do’s.”

Do:            write down the name of the committee that is meeting, the date of the meeting, who is in attendance, and who is absent; list if there are any guests or visitors at the meeting; note the time the meeting was called to order, who called it to order, and the time it was adjourned; note whether it is a regular or special meeting of the committee; note, if it is a special meeting, that notice was given to the committee members and the way notice was given; note whether a quorum was present; note whether the previous minutes were read and approved; note the result of the votes, for example, 7–1 to suspend the physician’s privileges.  This is the most important “Do” since the vote is the committee’s action.

Don’t        record the details of any discussion.  This is the most important “Don’t.”  Sometimes, in the heat of the moment, someone may say something that they do not mean, that can be misinterpreted, or was meant as a joke, but looks sinister in black and white.  If it is recorded in the minutes, it is there forever, and may turn up again – in front of a jury.  There is not really a need to record the details of a discussion.  What is important is the vote, the committee’s action.

But, with every rule, there is an exception.  The exception here is “Do put details of a discussion in if it helps” and it helps when a committee makes an adverse recommendation regarding a physician.  In that case, the minutes could be your best friend.  The details would allow the committee to record the objective reasons for taking action.  The reasons can be explained, but, comments should not be attributed to any one individual.

Don’t        record how each member voted, unless a committee member wants a dissent recorded.

Don’t        record who made motions and who seconded them or who said what to someone else or record personal remarks unrelated to the committee’s business.

November 9, 2017

Posted on by hortyspringer

QUESTION:        Our Bylaws Committee would like to know more about exclusive contracts.  Specifically, we want to know where the hospital board gets the authority to enter into an exclusive contract.  Does this come from the medical staff bylaws or from somewhere else?

ANSWER:            Under the general principles of corporate law, hospital boards are afforded broad discretion in how they manage the hospital’s business affairs, including the ability to enter into exclusive contracts.  These general principles are reflected in laws at the federal and state levels, as well as in the standards of various health care accreditation bodies.  Consequently, the board’s authority to enter into an exclusive contract is bestowed by law, not by the medical staff bylaws.

Courts often view exclusive contract decisions as “quasi-legislative” actions, in contrast to an “adjudicatory” action aimed at a particular physician (which might give rise to a hearing).  So long as the hospital board acts rationally when it undertakes these quasi-legislative actions, courts are likely to defer to the board’s business judgment.

Although the medical staff bylaws are not the source of this authority, they may affect the process and consequences of entering into an exclusive contract.  For example, the bylaws (or credentials policy) may outline a process for the Medical Executive Committee to review and comment on the clinical performance and service implications of the proposed exclusive contract.  This review-and-comment process is limited solely to the clinical performance aspects of the contract; the actual terms of the arrangement (especially financial terms relating to remuneration) would not be disclosed to the Medical Executive Committee.

It is also important to see how the medical staff bylaws frame the issue of medical staff privileges.  The definition of medical staff privileges is relevant when assessing whether the exclusive contract arrangement will entitle the affected practitioners to any kind of hearing.  When you are drafting bylaws, we do not recommend that you give hearings to physicians affected by the exclusive contract.  Entering into this kind of contract is a managerial business decision – it is not a judgment about a particular practitioner’s competence or professionalism.

Most state laws (and most courts) recognize these core principles, but there are some exceptions.  Be sure to check the laws of your state before proceeding with an exclusive arrangement.

If you’d like more information on these issues, you should join us for our November 30 audio conference on Exclusive Contracts: New Challenges, New Opportunities.  Henry Casale and Josh Hodges will share best practices for entering into an exclusive contract, including recommendations on drafting the agreement and tips on avoiding common pitfalls.  More information will be available on our website in the near future.

November 2, 2017

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QUESTION:        We have several clinical departments that have either weak chairs or chairs who are there entirely by “default.” These individuals are relied upon to perform a really important role.  How can we get stronger leaders interested?

ANSWER:            In many hospitals, it has been traditional to rotate the department chair position so that everyone gets his or her turn.  However, not every physician, quite frankly, has an aptitude for, or interest in, medical staff leadership.

One answer might be to develop stronger qualifications for serving in medical staff leadership roles, including officers and department chairs, and to provide for compensation for department chairs.  Another question to ask is if there are too many departments.  Consider consolidating departments.  By having fewer positions to fill, you then have a larger pool of qualified people who want to serve.

Finally, many hospitals are facing this very issue and are tackling it head on by incorporating an affirmative “succession development” process.  In these facilities, a small core group of medical staff leaders has an ongoing responsibility for identifying individuals who seem to show an aptitude for leadership and cultivating those skills – beginning with committee appointments and then moving them forward in the leadership track.