Author: hortyspringer

May 18, 2017

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QUESTION:        A registrant at our Complete Course for Medical Staff Leaders in New Orleans two weeks ago asked:

Appreciated the suggestion in the case study to hold an application incomplete if there remain questions and concerns, but couldn’t the Credentials Chair or another physician leader suggest that an applicant withdraw the application?

ANSWER:           They could.  However, such a suggestion must be done with care. Suggesting that an applicant withdraw could invite a contention from an applicant’s lawyer that leaders are attempting to talk an applicant out of a “right” to a hearing.  That’s not the case if there has not been a recommendation for “denial,” but dealing with the contention could consume valuable resources.  Instead of appearing to push the applicant to withdraw, it may be better to present the physician with the potential consequences of the options, including withdrawal, appealing a denial recommendation, or allowing the application to remain incomplete.  It is a best practice to have a framework of clear language in the bylaws or credentialing policy (premised on the applicant’s burden), that incomplete applications will not be processed; and any application that remains incomplete after information has been requested, and not fully provided after a stated period of time (30, 45 or 60 days), will be deemed to be withdrawn.  It is easier for someone to simply wait for the expiration of the time period than to have to formally write a letter of withdrawal.  If your documents don’t have that language, you can still use this technique by stating a time period in the letters posing questions and requesting information.  Add additional language to guide future credentialers, next time revisions are considered!

May 11, 2017

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QUESTION:        Our hospital is about to sign a letter of intent to merge with a regional health system.  The lawyers want us to also sign a “joint defense agreement.”  What is that and does it make sense to do so?

ANSWER:            A joint defense agreement or “JDA” memorializes the intention and understanding of parties to a prospective merger or acquisition regarding:  (1) particular communications that have been made between them, (2) the contents of such communications, and (3) any other work product containing or referring to such communications shall remain confidential and protected from disclosure to any third party.  The JDA also permits the parties and their respective attorneys to share and exchange information among themselves and with any retained experts or consultants without waiving any privilege that may apply to that information.  It is usually a good idea to have a JDA in any merger transaction.  The courts have recognized that the joint defense and common interest privileges will protect privileged communications between the parties from disclosure.  Given the recent aggressive posture of the FTC and state attorney generals who have challenged numerous health care mergers, a JDA is not only a good idea, it is a critical tool for self-preservation.

May 4, 2017

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QUESTION:        We have just received an application for Medical Staff appointment from a physician who has a history of alcohol abuse that caused him to lose his license.  While his license has been reinstated, how should we deal with the fact that at one point in time he lost his license?

ANSWER:            First check your Medical Staff Bylaws.  Many bylaws have threshold eligibility criteria that not only require that an applicant possess a current, unrestricted license, but also require that an applicant have never had his or her license to practice revoked or suspended by any state licensing agency.  Such an eligibility criterion would render this physician ineligible to apply for appointment.

However, that does not end the inquiry.  Most bylaws also have a process that may be followed to obtain a waiver of the threshold eligibility criteria.  If the physician wants to attempt to qualify for a waiver, he or she should be required to request a waiver in writing and provide the MEC with such information as the MEC may require to determine whether granting a waiver is in the best interest of the hospital and the community it serves.

The MEC should be reasonable and keep in mind that past alcohol or drug use is protected by the ADA.  However, that does not alter the fact that the burden remains on the applicant to satisfy the hospital’s eligibility criteria and, if requesting a waiver, to establish a reasonable basis for the requested waiver.  Whether a waiver is granted is discretionary, the burden remains on the applicant, and an application is incomplete and should not be processed unless the waiver has been granted.

April 27, 2017

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QUESTION:        Our hospital policies allow almost anyone to order outpatient services, regardless of whether they are a member of the Medical Staff or not.  Is this a problem?

ANSWER:            This poses compliance issues under the Medicare Conditions of Participation (“CoPs”).  The CoPs only allow outpatient services to be ordered by practitioners who meet certain conditions.  The ordering practitioner must be (1) responsible for the patient, (2) licensed in the state where he or she provides care to the patient, (3) acting within his or her scope of practice under state law, and (4) authorized by state law and policies adopted by the Medical Staff (with approval from the governing body) to order the applicable outpatient services.

Your Medical Staff policies can reflect a determination as to whether practitioners who are not on your Medical Staff are permitted to order outpatient services.  However, these policies must address how you will verify that the referring/ordering practitioner meets the requirements in the CoPs.  You will need to keep documentation to show that you have complied with the CoPs (e.g., documents showing that you checked the ordering practitioner’s license).

If you permit allied health professionals not affiliated with your hospital to order outpatient services, you may have to do a significant amount of work.  Be sure to check their scope of practice to make sure they are permitted to order the service in question.  In addition, be sure to follow the laws of your own state!

You may decide that certain orders should be permitted only by individuals with specific hospital privileges.  The Interpretive Guidelines give the example of requiring practitioners to have hospital privileges before they can place an order for outpatient chemotherapy services.  If you do this, be sure to delineate these terms clearly in your policies.

April 20, 2017

Posted on by hortyspringer

QUESTION OF THE WEEK

QUESTION:        Our current Medical Staff Bylaws state that in order to be eligible for reappointment and renewal of clinical privileges, an individual must have “completed all medical records” during the previous appointment term.  However, even if an individual was compliant 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete, as some would be outstanding.  How do you resolve that issue?

ANSWER:            We have had several hospitals that we have worked with on Medical Staff Bylaws projects raise the issue that no one is, in fact, compliant with medical records all of the time.  Therefore, no one would truly be eligible for reappointment if eligibility required that an individual have completed all medical records during the previous appointment term.  As referenced in the question, even if an individual was compliant with medical records requirements 100% of the time, on the date the application was filed, not all of the individual’s medical records would be complete (some would be outstanding, but not delinquent).

So, we recommend expanding on the “completed medical records” language by having the Medical Staff Bylaws state that in order to eligible for reappointment, an individual must have:

completed all medical records such that he or she is not delinquent, as per the Medical Staff Rules and Regulations and Hospital policy, at the time he or she submits the application for reappointment or renewal of clinical privileges and, further, was not deemed delinquent (sufficient to result in the relinquishment of privileges) more than _____ time(s) during the prior appointment term.

April 6, 2017

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QUESTION:        We consistently see poor attendance at our Medical Staff meetings.  It seems like our Medical Staff members are losing interest in many of the traditional Medical Staff activities, and we’re often struggling to recruit volunteers to serve on Medical Staff committees and to act in Medical Staff leadership roles.  Do you have any suggestions?

ANSWER:            This trend is becoming increasingly prevalent nationwide, so you’re not alone.  There’s no “one size fits all” solution, but we do have several recommendations.  First, focus on making your meetings as substantive as possible.  This means cutting away as many non-essentials as you can, leaving only important matters for discussion.  People are far more likely to attend a meeting if they know that it will have value to them and if they recognize that it’s focused on a specific, important purpose.

We have a similar approach to Medical Staff committees.  We frequently see Bylaws or Organization Manuals that include a lot of unnecessary committees.  These committee meetings are often poorly attended and serve only to add another layer of administrative bloat to an organization.  For this reason, we would suggest taking a careful look at your current organization structure so you can prune away all of the inessential activities.  Consolidate committees and their functions where possible (taking into account all legal requirements, of course), and make certain that Medical Staff members see value when they invest time into the Medical Staff.

When an important meeting is coming up, consider having the Chief Medical Officer or Chief of Staff send out a reminder by text message, asking each member of the Medical Staff to come and share their thoughts.  This can be a great opportunity to mention (briefly) why the meeting will be valuable and to encourage people to get more involved.

Stated simply, if you want to generate interest and increase attendance at your meetings, you need to focus on “selling” your meetings to the Medical Staff.  And selling is much easier when you have a valuable, important product – something that will help the person you’re talking to.  If you ensure that your meetings are valuable and focused on the essentials, you’ll have an easier time “selling” them to the Medical Staff and you’ll start to see more interest and attendance.

We have a lot more to say about this particular issue.  If you’d like to hear more of our thoughts and suggestions, please tune in to our audioconference on “The Incredible Shrinking Medical Staff.”  Dan Mulholland and Linda Haddad will be on hand to answer your questions and to share their insights on this increasingly common problem.  The audioconference will be from 1 p.m. to 2:30 p.m. Eastern Time on April 11.

We’ll see you then.

March 30, 2017

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QUESTION:        We received word through the grapevine that a Medical Staff member was arrested for driving under the influence of alcohol (“DUI”) last weekend.  Does our Medical Staff leadership need to take any action, or should we only act if we’ve observed problems in the hospital?

ANSWER:            A DUI may be a sign of a significant underlying problem, or it may reflect only a momentary lapse in judgment.  Given this uncertainty and the potential risks to patients and the practitioner, it makes sense to speak with the practitioner about the DUI, gather relevant information, and decide if any additional action is needed.  This approach protects both patients and the practitioner.

Gathering information about the DUI is consistent with the process followed by some state medical boards, which use a trained professional to interview physicians who are arrested for a DUI to determine if an additional assessment or intervention is required.

The hospital’s Credentials Policy and Practitioner Health Policy should help physician leaders to address these issues:

  • The Credentials Policy should make clear that applicants and members of the Medical Staff must notify the Medical Staff Office, the Chief of Staff, or the Chief Medical Officer of any change in information provided on their application form. In fact, the Credentials Policy could specifically state that physician leaders must be notified of any DUI or similar matter.
  • The Practitioner Health Policy should outline a non-punitive, supportive process for carefully obtaining a practitioner’s input, evaluating a potential health issue, and helping the individual resolve the issue.

For more information on how to handle these and other issues, join us May 4-6 in New Orleans (and enjoy Jazz Fest at the same time – responsibly!).

March 23, 2017

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QUESTION:        We have an applicant for medical staff appointment who disclosed that he was under probation for a time during his residency. Despite our requests, he has refused to provide any additional information related to this matter. He also has declined to sign an authorization that would allow us to talk freely with his program director.

We have language in our Medical Staff Credentials Policy 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 rely on this provision?

ANSWER:            Most definitely.  When it comes to enforcing such a provision, the law is on your side. Courts from jurisdictions across the country have held that a hospital can refuse to process an application that is incomplete.  For example, an Illinois appeals court, in a case with facts very similar to the situation described above, 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, an appeals court in Tennessee ruled in favor of the hospital in a case where a physician up for reappointment refused to release information on pending malpractice claims.  In that case, the court found that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

Of course, having good language in your Medical Staff documents (and on your application form) that makes it clear that the burden to provide information is on the applicant – and that an incomplete application will not be processed – is key.  Since you stated that you have this language in place, you can feel confident in holding this application as incomplete until the applicant meets his burden of providing the information you need.

March 16, 2017

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QUESTION:         A local long-standing cardiology group in town, not affiliated with our hospital, is going through a pretty messy divorce.  The three current members of the group are all members of our Active Staff.  One of those cardiologists, Dr. X, will be leaving, and apparently the contentious separation process is almost finalized.  We had known that this was going on in the informal, “through the grapevine” kind of way that this type of news typically passes through the hospital.  However, yesterday, one of the two remaining cardiologists called the Medical Staff Office to tell us that the hospital had to “take away” Dr. X’s clinical privileges as of next week because once he signs his separation agreement, there is a restrictive covenant in place that keeps Dr. X from practicing at our hospital.  Our Credentials Committee Chair is uncomfortable with this and doesn’t think we should resign the physician, but some of our other leaders aren’t so sure?

ANSWER:            Your Credentials Committee Chair is correct to be concerned!  This is a private group and the manner in which the group functions does not involve the hospital.  As such, the hospital has no obligation – or, more importantly, any legal right – to take action on a physician’s privileges on the basis of that physician’s relationship to his private group.  As a practical matter, the restrictive covenant may keep that physician from being able to exercise his clinical privileges at the hospital, but its existence does not trigger any obligation on behalf of the hospital, and enforcement of the covenant is up to the group.

It is possible that a physician’s departure from a group could ultimately lead to a determination that the physician is ineligible for continued appointment at the hospital – particularly if the bylaws require individuals to provide documentation of adequate professional liability insurance, to have an office within a certain defined response time to the hospital, or to have a cross-coverage arrangement by an appropriate member of the medical staff, requirements that were likely satisfied by the group practice and other members of the group and may not be quickly replicated.  However, these things would first need to be verified with the physician and handled in accordance with the bylaws process – not triggered merely because the group has a restrictive covenant with former members.

This situation is different from the more common situation where the hospital or an affiliated physician group employs a physician AND the employment agreement includes language that makes the physician’s medical staff appointment and clinical privileges “coterminous” with the employment contract.  In that situation, when the employment agreement is terminated, the physician’s appointment and privileges will also expire.  It’s important to understand, however, that in the absence of such a contract provision, even an employed physician’s appointment and privileges would survive a contract termination.

March 9, 2017

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QUESTION:        In our Medical Staff Professionalism Policy, should we have a different process for addressing reports of sexual harassment?


ANSWER:            Since there are unique legal implications surrounding sexual harassment, we recommend that a policy addressing inappropriate conduct incorporate a modified process for review of reports involving sexual harassment.

We recommend that a single, confirmed incident of sexual harassment trigger a well-defined process that involves the medical staff and hospital taking immediate and appropriate action to address the conduct and to prevent it from reoccurring.  For example, a personal meeting should be held with at least two members of the professionalism committee (or similar committee) to discuss the incident.  If the physician acknowledges that the incident occurred and agrees not to repeat the conduct, the physician is sent a formal letter of admonition and warning that is placed in his or her file.  The letter should set forth any additional actions or conditions imposed on the physician’s continued practice at the hospital which result from the meeting.  If the physician refuses to acknowledge the confirmed incident of sexual harassment or there are confirmed reports of retaliation, the matter should be immediately referred to the Medical Executive Committee to conduct a review consistent with the credentials policy or bylaws.  A well-defined process which incorporates these details demonstrates the hospital’s efforts to address any incidents of sexual harassment and attempts to prevent them from occurring again, minimizing the risk of the hospital being held liable in court.