Author: hortyspringer

December 1, 2016

Posted on by hortyspringer

QUESTION:        Our Medical Staff policies call for a multi-specialty peer review committee to address concerns about a physician’s clinical skills, and a small Leadership Council to address behavioral concerns.  What happens if there are concerns about a physician that involve both clinical and behavioral issues.  Which process should we use?

ANSWER:            One option is to have the multi-specialty peer review committee address the clinical matter while the Leadership Council separately addresses the behavioral concern.  However, if the clinical and behavioral concerns are related, it may be best to have the same committee review both.  Using two committees may result in a less effective review.

Another option is to have a single committee address both the clinical and behavioral concerns.  However, if this approach is used, it should be explicitly described in your policies.  Otherwise, no matter what review path is chosen, the physician in question might claim that the review is invalid because it was conducted by the wrong committee.

We recommend that language similar to the following be in the Professional Practice Evaluation Policy (for clinical concerns):

If a matter involves both clinical and behavioral concerns, the Chairs of the Leadership Council and the Professional Practice Evaluation Committee (“PPEC”) shall coordinate the reviews.  The behavioral concerns may either be:

(i)         addressed by the Leadership Council pursuant to the Professionalism Policy, with a report to the PPEC, or

(ii)        addressed by the PPEC pursuant to this Policy, with the provisions in the Professionalism Policy being used for guidance.

Similar language should be included in the Professionalism Policy.

To learn more about these and similar issues, please join us in sunny Naples on February 2-4, 2017 for The Peer Review Clinic!

November 17, 2016

Posted on by hortyspringer

QUESTION:        I’m on the Medical Staff at two hospitals that have very different approaches to existing DNR orders when a patient is going to surgery.  The first hospital automatically suspends the DNR order without either talking with the patient or his or her representative.  The second hospital allows that patient or representative to continue the DNR order throughout the surgery.  What’s going on?

ANSWER:            Though not as common as before, we still find hospitals that have a policy which states that a DNR order will be automatically suspended for surgery, without getting the consent of the patient or his/her representative to this change.  Sometimes this is a formal policy; other times, informal (but 100% followed).  There are sound reasons to suspend a DNR order for surgery, but not without the patient’s consent.

There are three principal medical concerns usually raised in connection with the suspension of a DNR order during surgery.  The use of general anesthesia in the surgery, to which the patient consented, involves the deliberate depression of vital systems, and can produce apnea, some degree of cardiovascular instability and other effects.  The very nature of the anesthetic procedure thus may require resuscitative efforts.  Separating anesthesia from resuscitation is somewhat difficult conceptually.

Second, there is a difference between a cardiorespiratory arrest that occurs spontaneously, and one that results from a therapeutic intervention.  If operative or post-operative difficulties relate to the anesthesia or the surgical procedure involved, and not to the underlying illness, the suspension of the DNR order addresses these complications and provides the patient with an opportunity to recover from them.

Third, the suspension of the DNR order is meant to address concerns that the patient or patient’s representative might not appreciate the medical issues and factors involved in perioperative complications, and the value of resuscitating the patient during this period.

While all of these concerns have merit, no hospital policy should automatically suspend the DNR order without first obtaining the specific agreement of the patient or his/her representative.  A DNR order properly obtained in the hospital requires the attending physician to have discussed the DNR order with the patient or the patient’s representative.  Through that discussion, the physician and the patient or patient’s representative determine the scope of that DNR order.  A policy which then suspends that DNR order without the specific agreement of the patient or patient’s representative is legally inappropriate.  That approach likely conflicts with state law and well-developed law concerning a patient’s legal rights to forego medical treatment.

But what if the patient won’t agree to suspend the DNR order?  If this conflict can’t be resolved, some physicians are simply not comfortable performing the surgery for the medical reasons described above.  If that is the case, the physician should see if there is another surgeon who will work with that patient.

Interestingly, we just reviewed an anesthesia protocol that allows the patient to fully suspend his/her DNR order, create a specific limited suspension, or provide for no suspension or limitation of the order during the operation or procedure/recovery.  What a change from the other practice!

November 10, 2016

Posted on by hortyspringer

QUESTION:        During a recent on-site presentation, an attendee asked whether a hospital could impose requirements on physicians for medical staff appointment and clinical privileges that are more rigorous than the state requirements for licensing.

ANSWER:           The answer to this question is a resounding “yes.”  In fact, not only can a hospital do this, it most definitely should do this.  The requirements for licensing by a state board of medicine often establish a floor from which the hospital should begin in establishing its criteria for medical staff appointment and clinical privileges.  Medical staff policies should set the bar higher when it comes to threshold eligibility criteria so that you are only attracting, and granting medical staff membership to, highly qualified individuals.

For example, Florida law permits physicians who meet certain criteria to practice without medical malpractice coverage.  To be eligible for this exemption, some of the criteria a physician must meet include:

  • The physician has held an active license to practice in Florida or another state or some combination thereof for more than 15 years.
  • The physician maintains a part-time practice of no more than 1,000 patient contact hours per year.
  • The physician had no more than two claims for medical malpractice resulting in an indemnity exceeding $25,000 within the previous five-year period.

Under the Florida law, the physician must also post a sign in his or her office reception area which provides as follows:  “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice.  However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law.  YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE.  This notice is provided pursuant to Florida law.”

Even though the law permits part-time physicians to practice without medical malpractice insurance if the criteria are met, nothing prohibits the hospital from requiring a certain level of malpractice insurance for any physician who is appointed to the medical staff and provides clinical care to patients in the hospital.  Indeed, it would be imprudent not to require such coverage because it would expose the hospital to more risk and could result in a patient injured by proven negligence to not be compensated for his or her injuries.

November 3, 2016

Posted on by hortyspringer

QUESTION:        Two registrants at our recent Complete Course for Medical Staff Leaders in Las Vegas  asked similar questions:  An affiliated medical group extended an employment contract to a physician or PA — then asked the Medical Staff Office to send an application.  The group wants recruits to “shadow” a group physician until the application is approved.  Is such shadowing common? If the MSO discovers significant red flags — what can the MSO tell the group?

ANSWER:             “Shadowing” under these circumstances is not prohibited by regulatory or accreditation standards. However, it is not common, in our experience.  It may be wise to wait until an application is deemed complete.  What message would allowing shadowing — before a determination of completeness — send to a candidate who turns out to have red flags?  Would applicants and the group assume that credentialing is just a paperwork matter, and that appointment is likely?  Here are some best practices:

  • The MSO and group recruiters should get together for Credentialing 101! (Of course, they’d be most welcome at our Credentialing Clinic!)  The MSO should develop a checklist or FAQ to help educate recruiters who lack credentialing experience on how to spot a reasonably discoverable problematic past.
  • “Shadowing” should not take place until the application is complete (which means not only that the blanks are filled in, but also that all reference evaluations have been received, primary source verification is done and there are no red flags). Develop a policy if your organization wants to allow shadowing on a regular basis. Shadowing may be attractive if your hospital doesn’t have an expedited process.
  • If reference evaluations reveal issues, the application should remain incomplete, and there should be no shadowing!
  • The group may push for quick action; the MSO and Medical Staff Leaders may need to educate the group’s leaders about the risks of “negligent credentialing.”
  • The evaluators most likely expect confidentiality. But it is appropriate to provide the substance to the recruited practitioner (without revealing identities of the evaluators).  The applicant’s side should be heard.
  • Pursuant to a release, the substance can also be provided to the group’s CMO, who also should sign a peer review confidentiality agreement; and this is best accomplished by an information-sharing policy or agreement.
  • Before allowing shadowing prior to appointment, even with a stellar candidate, provide basic orientation and get the candidate’s agreement to abide by all policies, including patient privacy, in advance of shadowing.
  • The physician who is being shadowed should acknowledge responsibility for informing patients and for the conduct of the physician or PA doing the shadowing.

October 27, 2016

Posted on by hortyspringer

QUESTION:        We have an applicant who had significant issues at the last hospital where she practiced, significant enough that she left while under investigation.  The NPDB report provided us with very little information, really only enough to know that the matter appeared to involve behavior and not clinical care, but it certainly was not enough to feel like we know what happened.  The hospital won’t respond to our requests for information, and when we formally asked the applicant for additional information, her lawyer sent us a letter telling us she is bound by a “legally binding” settlement agreement not to disclose what happened except that she had decided not to pursue the investigative process.  What can we do?

ANSWER:            This is a classic example of an incomplete application.  Settlement agreement or no, you should advise the applicant that she has the burden of producing information sufficient to evaluate her qualifications.  You can agree to keep any information provided to you by the applicant, and by the other hospital, confidential for use in your credentialing process only.  However, you cannot process this application without some information to determine the basis for the physician’s resignation while under investigation.  If she does not provide the information within a reasonable time, you can advise her that her application will be deemed to have been withdrawn.  It is helpful to have very clear and direct language in the Medical Staff Bylaws to emphasize that the burden is on the applicant to provide information necessary to assess qualifications, as well as a statement that incomplete applications will not be processed.  Don’t be dissuaded by the existence of a settlement agreement – the courts have supported the need to obtain information relevant to the credentialing process.

In Scott v. Sisters of St. Francis Health Services, 645 F. Supp. 1465 (N.D. Ill. 1986), St. James Hospital refused to forward Dr. Mac Scott’s application to the Credentials Committee because it had been unable to obtain information regarding his suspension and subsequent resignation from the medical staff of Ingalls Hospital.  Dr. Scott had sued Ingalls Hospital and, as part of a settlement agreement, the hospital could only respond to inquiries about Dr. Scott with a form letter prepared by Dr. Scott’s attorney, which provided no meaningful information upon which to make a recommendation regarding appointment.

Dr. Scott sued, alleging:  (1) that the refusal to forward his application to the Credentials Committee was a violation of his civil rights and racially motivated; and (2) that the hospital president had exceeded her authority by refusing to forward the application.  The federal district court rejected those arguments and entered judgment in favor of the Sisters of St. Francis Health Services, stating:

Scott’s assertion, however, does not take into account the fact that the bylaws provide that Sister is to forward only completed applications to the Credentials Committee for consideration.  Sister discussed with Scott the problems he experienced at Ingalls and the need for additional information from Ingalls about his suspension.  Sufficient evidence was presented at trial to show Scott’s application was incomplete, and Scott’s efforts prevented St. James from obtaining needed information from Ingalls.  As such, Sister’s decisions to not forward Scott’s applications were not outside the bounds of her authority as President of St. James nor indicative of any intent to discriminate against Scott on the basis of his race.  [Emphasis added.]

Additional cases that have held that a hospital has no duty to process an incomplete application include Evers v. Edward Hospital Association, 617 N.E.2d 1211 (Ill. Ct. App. 1993), and Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997).  (While Scott and Evers involved the initial credentialing process, Eyring was a reappointment case.)

October 13, 2016

Posted on by hortyspringer

QUESTION:        We know residency programs are adopting the ACGME-endorsed Verification of Graduate Medical Education form as a way to assist program directors when they receive requests for verification of training for past residents. Could we do the same thing for Medical Staff members?

ANSWER:            Responding to reference requests is one of the more difficult tasks faced by a Medical Staff leader. While it feels great to sing the praises of a past colleague who was a respected clinician and model citizen, responding to an inquiry about a Medical Staff member that left under less than ideal circumstances can lead to many a sleepless night.

Therefore, it might make sense to develop a response to any future credentialing inquiries contemporaneously with the individual’s departure, while the issues are still fresh in everyone’s mind.  However, this approach raises a number of additional questions.  For example, should you show the completed form to the physician and provide an opportunity to comment?  What are the risks and benefits? How do you flag files so future leaders understand when they should obtain a “special release” before responding? Should the answers to all of these questions be addressed in a policy on responding to reference requests?

These are just a few of the issues that Barbara Blackmond and Ian Donaldson will discuss during their special audio conference entitled “So Long, It’s Been Good to Know Ya.”  Please join us on November 3, 2016 by clicking here to register for this program.

October 6, 2016

Posted on by hortyspringer

QUESTION:         We have a physician who requested a leave of absence for health reasons several months ago.  Her current appointment term will expire in three months. Should we send her a reappointment application and process her reappointment application while she is on leave?

ANSWER:             This issue comes up with some frequency.  Medical staff bylaws address the issue of reappointing a physician during a leave of absence (“LOA”) in different ways.  If your bylaws are silent on the issue of reappointment during an LOA, we recommend that you not try to reappoint the physician while she is on leave.  Instead, depending on how much time is left in the leave, you may consider sending the physician a letter advising her that her current appointment period is due to expire and that she will be required to submit her reappointment application at the same time she submits her request for reinstatement.  The letter should also inform the physician that both requests will be processed at the same time.

We understand that some hospitals try to reappoint physicians while they are on an LOA.  In our opinion, this is not very practical especially if there are medical or other issues that will need to be addressed with the physician as part of the reappointment process.  It is not a good idea to intrude on the physician’s LOA and it is also not a good idea to grant reappointment when there may be significant issues that need to be addressed.

September 29, 2016

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver.  Only if a waiver is granted by the Board is the individual’s application then processed.  When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER:            Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver).  And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone.  So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria.  To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process.  This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility).  But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

September 22, 2016

Posted on by hortyspringer

QUESTION:        We have just determined that several of our compensation arrangements have failed to comply with a Stark Law exception and that we need to make a Self-Disclosure to CMS.  Is there anything new with this process?

ANSWER:            Yes.  Please see the “Government at Work” section of this week’s HLE for a link to CMS’s proposed Stark Voluntary Self-Referral Disclosure Protocol (the “Proposed SRDP”).  While it is only proposed and has not been adopted in final form, since CMS’s Proposed SRDP is based on CMS’s February 12, 2016 overpayment rule, we recommend you follow the Proposed SRDP.

The Proposed SRDP is much more structured than the former protocol and requires a provider to utilize CMS’s mandated forms and format.  One helpful feature of the Proposed SRDP is that it provides several illustrative examples as to how CMS expects a provider to determine the amount of the overpayment.

The Proposed SRDP also makes it clear that if conduct raises concerns under the Anti-Kickback statute and the Stark Law, then you are to use the OIG Self-Disclosure Protocol, not the Proposed SRDP.  The Proposed SRDP then states “Disclosing parties should not disclose the same conduct under both the SRDP and OIG’s Self-Disclosure Protocol.”

The Proposed SRDP also states that you must look back six years.  Again, this is now required by CMS’s Overpayment Rule.  CMS wants the six-year look-back summary to be by calendar year.  If no overpayments were made in one or more calendar years during that six-year look-back period, the year must be included, but the amount of the overpayment for that year is to be left blank.  A provider must also identify the overpayment by physician using the physician’s NPI Number.

CMS provided this chart as an example of the format they expect a provider to provide.

SAMPLE FINANCIAL ANALYSIS WORKSHEET:

Physician

Name
NPI		 Date

Over-

Payment

Identified
CY 2010
 CY 2011
 CY 2012
 CY 2013
 CY 2014
 CY 2015
 CY 2016
 TOTAL
Dr. A xxxxxxxxxx 2/18/16 $100,000.00 $100,000.00 $100,000.00 $300,000.00
Dr. B xxxxxxxxxx 3/24/16 $25,000.00 $10,000.00 $75,000.00 $  50,000.00 $  50,000.00 $  50,000.00 $10,000.00 $270,000.00
Dr. C xxxxxxxxxx 4/5/16 $  5,000.00 $25,000.00 $  20,000.00 $  20,000.00 $  20,000.00 $  90,000.00
                                                                                                                                                                                                                 TOTAL:       $660,000.00

Want more information on the Proposed SRDP, the February 12, 2016 Overpayment Rule, recent False Claims Settlements, and new cutting edge issues like how to implement MACRA and CJR Gainsharing?  Then join Henry and Dan in Las Vegas on October 13-15 for HortySpringer’s Physician-Hospital Contracts Clinic.

September 15, 2016

Posted on by hortyspringer

QUESTION:        If we inform an applicant that his or her application for appointment or privileges cannot be processed due to the applicant’s failure to satisfy our threshold eligibility criteria, do we need to refund the application fee (since we won’t be processing the application and incurring the costs associated with doing so)?

ANSWER:           As a general rule, application fees do not need to be returned to applicants, no matter whether the application that is submitted is fully processed and appointment and privileges granted or the application is “tabled” at the earliest phase of processing.  The fact is, even when an application is processed very little – such as when the applicant is determined to be ineligible by the Medical Staff Office – there are still costs incurred in processing the application.  To illustrate:

  • if the application is not publically available in electronic form, the time spent by the Medical Staff Office to accept the request for an application and, if applicable, send a copy of the application to the requestor;
  • the time for the Medical Staff Office to review the application after it is submitted, to determine whether it is complete (all questions have been answered, all gaps filled, all explanations provided, all supporting documents submitted);
  • the time for the Medical Staff Office to log in the application to any databases where information regarding applicants and appointees is kept;
  • the time and money to consult with legal counsel, if applicable, regarding the individual’s satisfaction of the criteria set forth in the Medical Staff Bylaws; and
  • the time to prepare a letter to the applicant informing him or her of ineligibility to apply.

In all fairness, some practitioners may feel cheated if they pay a several hundred dollar application fee only to find out that they are ineligible to have an application processed fully because of an objective threshold criterion (for example, lack of board recertification, conviction of a particular crime, etc.).  Much of this can be prevented by posting the Medical Staff Bylaws online or sending an electronic copy to anyone who requests an application for appointment or privileges.  That way, the individual will have full access to information about eligibility prior to sending in an application (and prior to paying your non-refundable fee).  Some hospitals also send, along with the application form, a checklist of the threshold eligibility criteria, along with a note informing the requestor that failure to satisfy the criteria on the checklist will result in an application not being processed.  That’s ample notice!

Another way to avoid any confusion, debate, or dispute over the topic of refundability or application fees is to simply adopt Bylaws or Credentials Policy language stating that a non-refundable application fee must be paid prior to any consideration or processing of an application.  The specific use of nonrefundable language makes it clear that no matter how little or how much processing of the application occurs, the fee is the hospital’s to keep.