Author: hortyspringer

March 2, 2017

Posted on by hortyspringer

QUESTION:        I’m the orthopedic surgeon on call at Hospital Big.  Our ED just got a call from the ED at Hospital Small.  Their orthopedic surgeon isn’t on call tonight, and they have an ED patient with an emergency medical condition they can’t stabilize.  They want to transfer the patient here so that I can treat and stabilize the patient.  The truth?  I’m tired of Hospital Small treating me like their on-call orthopod.  They should have theirs on call more often, and not just send me their ED patients who are uninsured.  I’m going to tell them not to ship the patient.  Any problem with that?

ANSWER:             The main problem is that this is likely going to be an EMTALA violation for Hospital Big.

A receiving hospital has the right to refuse an EMTALA transfer request if the proposed transfer is “lateral.”  A lateral transfer occurs when the same emergency medical condition (“EMC”) stabilizing services are provided and available at both the sending hospital and the proposed receiving hospital.  Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

The exception to this rule is where the sending hospital cannot stabilize the patient’s EMC and the receiving hospital has “specialized capabilities,” compared to the sending facility that can, here, the on-call orthopod.  The receiving hospital also has to have the capacity (available OR and staff) to stabilize the patient’s EMC.  In that situation, the receiving hospital has to accept the patient; it cannot refuse the proposed transfer.

Common areas in which “specialized capabilities” have been found by CMS include orthopedic surgery, neurosurgery, OB and mental health care (particularly inpatient mental health care).  These are only common examples; conceivably, any services provided at the proposed receiving hospital that are not available at the sending hospital are “specialized capabilities.”

We’ve been involved in specific investigations and enforcement efforts where CMS has responded to complaints by strictly holding the receiving hospital accountable.  Here, that would be Hospital Big.  By EMTALA, a hospital cannot delegate to an on-call specialist the authority to decline a transfer.  To address this, many hospitals have instituted an approach where the ED physician makes the decision to accept or decline a proposed transfer.

It is best for the ED physician (as the “acceptance decision-maker”) to discuss the proposed transfer with the on-call specialist, as the specialist may have legitimate reasons for why the transfer should not be accepted.  But it is the ED physician (or other hospital-designated individual) who makes that final decision.

This can no doubt create some unfair situations for Hospital Big’s on-call orthopedic surgeon.  And it might be best for the right management person at Hospital Big to reach out to her counterpart at Hospital Small, to try and address what appear to be transfers by which Hospital Small is taking advantage of Hospital Big’s on-call specialist(s) (at least from Hospital Big’s point of view).

But the key is, CMS has been enforcing the specialized capabilities transfer rule this way for over 15 years, and we still encounter the question asked above at hospitals and by medical staff physicians.  EMTALA’s penalties are the potential termination of the hospital’s Medicare provider agreement and fines of up to $50,000 per EMTALA violation.  That would be the most painful outcome for any kind of wrong EMTALA patient transfer decision.

February 23, 2017

Posted on by hortyspringer

QUESTION:        One of our busiest general surgeons is chronically late in dictating her operative reports.  She often does not dictate the complete operative report until days or weeks later.  We are concerned about patient care and compliance with accreditation standards.  And we are expending unnecessary resources sending constant reminders. We think our rules and regulations are clear.  What can we do?

ANSWER:            You are correct that a surgeon’s failure to timely complete an operative report has patient care and compliance implications.  It is difficult to imagine how an accurate operative report can be dictated days or weeks after the procedure, especially when the surgeon has a busy practice.  That is why the issue of operative reports is addressed both in the Conditions of Participation and the Joint Commission Standards.

According to §482.51(b)(6) of the Conditions of Participation: “An operative report describing techniques, findings, and tissues removed or altered must be written or dictated immediately following surgery and signed by the surgeon.”  Joint Commission RC.02.01.03 Element of Performance 5 requires: “An operative or other high-risk procedure report is written or dictated upon completion of the operative or other high-risk procedure and before the patient is transferred to the next level of care.” There is an exception to this requirement when an operative progress note is written immediately after the procedure, in which case the full report can be written or dictated within a time frame defined by the hospital.

In dealing with your particular situation, we recommend, as a first step, that you gather information about the surgeon’s non-compliance with your standards, including any reminder letters that have been sent within the last year.  Share this with the Leadership Council (typically the Chief Medical Officer, the Chief of Staff, the Chair of the Credentials Committee and the Chair of the Peer Review Committee) and the Chair of the Department of Surgery.  Then invite the surgeon to meet with the Leadership Council.

In advance of the meeting, the Leadership Council can outline a proposed Performance Improvement Plan, including specific expectations and consequences.  For example, the Performance Improvement Plan may provide:

You acknowledge and agree that an operative progress note must be entered into the medical record immediately after surgery and before the patient is transferred to the next level of care.  This progress note must include the following:  the names of the physician(s) and physician assistants, procedure performed, findings, estimated blood loss, specimens removed, and post?operative diagnosis.

You acknowledge and agree that a complete operative report must be dictated within 24 hours of the surgery/procedure.

You may want to consider a course on medical record documentation and mentoring sessions to further help the surgeon correct the underlying issues.

Some medical staffs have had success in gaining compliance with medical record requirements by imposing fines for non-compliance. Other medical staffs use the concept of automatic relinquishment.  Both approaches can be progressive with each subsequent incident of non?compliance leading to higher fines and/or longer periods of relinquishment of appointment and privileges.

February 16, 2017

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QUESTION:        Our Medical Staff Credentials Policy has a detailed list of threshold eligibility criteria.  In the provisions that deal with criminal histories, the policy mentions felonies and misdemeanors that involve “moral turpitude.”  What’s moral turpitude?

ANSWER:            Moral turpitude is a broad term that can be used to refer to a variety of crimes.  Black’s Law Dictionary defines moral turpitude as “conduct that is contrary to justice, honesty, or morality.”  The State Department’s Foreign Affairs Manual explains that the most common elements of moral turpitude are “(1) Fraud; (2) Larceny; and (3) Intent to harm persons or things.”  Blended together, you might say that moral turpitude refers to acts which clearly involve fraud, larceny, or an unjust attempt to cause serious harm to persons or property.  If you have any one of those three ingredients, you’re most likely dealing with an act of moral turpitude.

Be prepared for applicants who try to hide their questionable criminal history by twisting the meaning of “moral turpitude” or understanding it in a very narrow sense.  For example, maybe an applicant has been convicted of crimes relating to the possession of controlled substances.  This person might argue that his conviction didn’t involve moral turpitude, because he didn’t obtain the controlled substances by fraud, didn’t steal them, and didn’t intend to hurt anyone else by using them.

For this reason, keep in mind that “moral turpitude” is not a catch-all term and won’t patch up a set of poorly-drafted threshold eligibility criteria.  However, we do recommend including it in your policies, because it encompasses a wide variety of criminal conduct that could reflect negatively on a person’s suitability for Medical Staff appointment.  As a best practice, consider calling out other specific categories of offenses, such as criminal possession of controlled substances, so that you get a full picture of an applicant’s background.

While we always advise our clients to adopt robust eligibility criteria and to set a high standard for their Medical Staff, we recognize that criminal backgrounds can be a controversial subject and that institutions will have different perspectives on the matter.  The most important thing is to ensure that your policies reflect your values and your goals.

February 9, 2017

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QUESTION:        Our Credentials Committee recently considered a request for a waiver, submitted by a physician who does not satisfy our threshold criteria for appointment.  A few years back, this physician pled guilty to a felony battery charge, which ultimately led to a downward spiral in which he violated a restraining order and had his probation revoked.  The physician was forthcoming about his criminal background when he submitted his application, though his explanation largely deflected blame for the matters leading up to his arrest, guilty plea, and probation violation.

Before processing the physician’s request for a waiver, the Chief of Staff and CMO have recommended that the physician be required to provide substantial information (including arrest and/or court records) regarding these matters.  The Chair of the Credentials Committee disagrees and believes that the Credentials Committee, which has the responsibility pursuant to the Medical Staff Credentialing Policy to consider and make recommendations regarding waivers, should simply talk with the physician to get his side of the story and, if any questions remain after that, decide whether to ask for additional information.  Who is right?

ANSWER:            Most Medical Staff Bylaws or Credentialing Policies call on the Credentials Committee to consider and make a recommendation on requests for waivers of threshold eligibility criteria.  Often, the Credentials Committee is given broad discretion regarding what information to consider when reaching its recommendation.  And, as the individual charged with planning the agenda and activities of the Credentials Committee, the Chair would have the ability to exercise much discretion in determining how the committee would go about considering any request for a waiver.

The Credentials Committee may wish to review the application (or preapplication) submitted by the individual or any explanation submitted by the individual in conjunction with his or her request for a waiver.  It may also wish to speak with the individual regarding the waiver request and the circumstances that led to the individual being ineligible.  Therefore, the Chair’s expressed preference for talking with the individual is not totally out of line.

However, in almost any circumstance where a waiver is to be granted, the Credentials Committee is going to want to also verify the facts with third parties – to corroborate the story that is being told by the individual requesting a waiver.  The only exceptions to this would be when the circumstance is so obvious that no verification is required.  This may be the case, for example, if the individual does not have a coverage arrangement with another member of the medical staff, but explains that this is because no one else is practicing in the subspecialty in which he or she is requesting privileges.  Another example would be an individual whose office or residence is farther from the hospital than required by Hospital policy, in which case the individual may simply be providing the relevant addresses and explaining why the small discrepancy in distance will not affect his or her ability to respond appropriately to patients.

In the case at hand, where the individual is requesting a waiver related to his criminal history, it is hard to imagine any scenario where the Credentials Committee, MEC, or Board could proceed in processing the request for a waiver without verifying the facts of the matter from third party sources.  If the medical staff leaders or hospital failed to conduct this verification, how could they later justify such inaction (for example, in a court case brought by a patient or staff member who alleged to have been harmed by the physician’s conduct)?  Merely taking the physician’s word for it seems especially unreasonable in light of the fact that his original explanation deflected blame.

So, who is right in this situation – the Chief of Staff and CMO (who want to request written documentation) or the Chair of the Credentials Committee (who wants to talk with the individual requesting the waiver)?  In the end, the answer is that both of them are right in some ways.  It is the Chair of the Credentials Committee who ultimately decides whether the matter gets placed on the Credentials Committee’s agenda and, if so, the information that is gathered in advance of the meeting to assist the Credentials Committee as it talks with the applicant.  But, the committee will not be able to do its job properly without obtaining substantial information to corroborate the physician’s story – and so the Chair would be wise to take the advice of the Chief of Staff and CMO and gather the relevant documents from the individual prior to the Credentials Committee meeting.

February 2, 2017

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QUESTION:        Our hospital just received a Civil Investigative Demand from the Department of Justice.  Should we be worried?

ANSWER:            Yes.  A Civil Investigative Demand (CID) is like a beefed-up subpoena.  While a subpoena duces tecum will only call for production of documents, a CID can require the recipient to produce documents, as well as answer interrogatories or give oral testimony under oath.  Moreover, the authority to issue a CID is quite broad.  The issuing DOJ attorney only needs a “reason to believe that any person may be in possession, custody, or control of documentary material or information relevant to a false claims law investigation.”  The potential breadth of a CID and the ability to compel sworn testimony raise critical issues for recipients, particularly those who may be under a concurrent criminal investigation.  And unlike interrogatories or depositions in a civil case, CIDs are an investigative, not discovery, tool, so only the government gets to use them.

If the CID is overly broad, your attorney may be able to get the DOJ attorney to limit the scope of the CID.  However, the information being demanded should give you an idea of the issue being investigated.  If requested, the government will also usually provide the recipient of a CID with additional time to respond.  Whether the DOJ will pursue the matter further or whether a qui tam has been filed is impossible to ascertain at this stage.  What is required is for you to search your files and work with your attorney to respond to the CID to the best of your ability.

January 26, 2017

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QUESTION:        An applicant for reappointment has requested privileges that he has not performed for many years (and he doesn’t perform them anywhere).  Can we deny the request?

ANSWER:           The D word is not the best answer; why not approach it by developing eligibility criteria for core and special privileges?  A determination of ineligibility is not an adverse professional review action, and so is not reportable.  CMS requires that hospitals consider evidence of current competence in granting and renewing privileges.  What is “current”?  For many procedures and practice areas, there is a recognized correlation between proficiency and performance.  A two-year reappointment cycle is a logical period, except perhaps for procedures that are very rarely done (but it may be vital to maintain privileges for those unusual occasions where a patient can’t be transferred in time to help).

Join us for our Grand Rounds audio conference on Feb. 7 when we address how you can design policies to help handle a number of privileging dilemmas.

January 12, 2017

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QUESTION:        Can text messages be used by our physicians and other health care professionals to communicate about patients and issue orders?

ANSWER:            The Joint Commission recently issued guidance regarding the use of text messaging in patient care.  The guidance was developed in collaboration with the Centers for Medicare & Medicaid Services (“CMS”).  Thus, even if your hospital is not accredited by the Joint Commission, it should pay attention to the guidance because of CMS’s involvement in developing it.

The guidance includes the following:

(1)     All health care organizations should have policies prohibiting the use of unsecured text messaging – that is, short message service (“SMS”) text messaging from a personal mobile device – for communicating protected health information.

(2)     The Joint Commission and CMS agree that computerized provider order entry (“CPOE”) should be the preferred method for submitting orders as it allows providers to directly enter orders into the electronic health record (“EHR”).

(3)     In the event that a CPOE or written order cannot be submitted, a verbal order is acceptable.

(4)     The use of secure text orders is not permitted at this time.

For more information, please click here.

 

January 5, 2017

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QUESTION:        Our hospital is negotiating with health insurers to perform delegated credentialing on their behalf.  The insurers are telling us that we cannot have a hearing officer option for conducting a hearing when providers are subject to certain adverse actions, such as termination of participation on a panel.  Is this correct?

ANSWER:            In our experience, this is how health insurers interested in delegating credentialing functions to health care providers interpret the Medicare Advantage rules for provider participation.  According to those rules, a health insurer involved in the Medicare Advantage program has to give physicians certain rights when it suspends or terminates the physician’s participation agreement.  Among those rights are the right to receive notice of the reasons for the action and the right to appeal that action.  The rules go on to talk about a hearing panel but only state that the insurer (or insurer’s delegate) must ensure that the majority of the hearing panel members are peers of the affected physician.

Now you could follow the constitutional principle of English law that instructs that “everything that is not forbidden is permitted” and go ahead and draft your delegated credentialing policies so that they allow for the hearing officer alternative to using a hearing panel.  However, this may create headaches down the road since health insurers have to perform a pre-delegation audit of your policies and procedures before delegating credentialing and will most likely require a revision to your policies if they permit the hearing officer option.  Some providers, such as hospitals, use their existing medical staff credentialing policies and procedures to build off of to put delegated credentialing processes in place.  To the extent that a hospital is interested in doing so and its existing Credentials Policy allows for the hearing officer option, it can simply revise its Credentials Policy to indicate that the option is not available when a hearing is offered for delegated credentialing purposes (as opposed to medical staff purposes).

December 22, 2016

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QUESTION:        As we are preparing for a medical staff hearing, a member of our Medical Executive Committee asked why our Medical Staff Bylaws state that the Chief Executive Officer appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

ANSWER:           No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, we have seen the argument made that the selections were biased in favor of the MEC and are not neutral  – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

December 8, 2016

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QUESTION:        Our medical staff bylaws contain a provision stating that physicians automatically relinquish their appointment and clinical privileges if their license to practice medicine is suspended or revoked.  Do we have to report such automatic relinquishments to the National Practitioner Data Bank?

ANSWER:            No.  By way of background, we generally recommend that medical staff bylaws documents identify certain events that will lead to the automatic relinquishment of appointment and clinical privileges.  Typically, this occurs if a member: (1) loses his or her license or insurance coverage; (2) is excluded from Medicare; (3) is arrested, charged, indicted, convicted, or pled no contest to certain crimes; (4) fails to complete his or her medical records; or (5) fails to provide certain information or attend a special meeting requested by the Medical Executive Committee or a similar committee.

When a member’s appointment and privileges are automatically relinquished pursuant to a provision in the medical staff bylaws documents, the action is considered to be administrative in nature.  That means there is no “professional review action” as defined by the Health Care Quality Improvement Act, so there is no need for a report to the NPDB.  The latest edition of the NPDB Guidebook includes the following question and answer to clarify these situations:

Question:  A hospital automatically revoked a physician’s clinical privileges when the physician lost her license.  Should this action be reported?

Answer:  No. Administrative actions that do not involve a professional review action are not reportable to the NPDB. The revocation of clinical privileges is automatic because the practitioner no longer holds a license.  Regardless of the reason for the State medical board’s licensure action, the hospital’s revocation of privileges was not the result of a professional review action.  Therefore, the hospital’s action should not be reported to the NPDB.