Author: hortyspringer

March 26, 2015

Posted on by hortyspringer

QUESTION:   Can advanced practice clinicians and other non-physicians be appointed to the medical staff?

ANSWER:   Yes, as long as your state hospital licensure regulations and medical staff bylaws allow them to be medical staff members. The Interpretive Guidelines of the Medicare Conditions of Participation for Hospitals, at §482.12(a)(1), say:

  • The governing body has the authority, in accordance with state law, to grant medical staff privileges and membership to non-physician practitioners.
  • The regulations allow hospitals and their medical staffs to take advantage of the expertise and skills of all types of practitioners who practice at the hospital when making decisions concerning medical staff privileges and membership.
  • Granting medical staff privileges and membership to non-physician practitioners is an option available to the governing body; it is not a requirement.

Practitioners who can be on the medical staff may include any of the following:

  • Physician assistants
  • Nurse practitioners
  • Clinical nurse specialists
  • CRNAs
  • Certified nurse-midwives
  • Clinical social workers
  • Clinical psychologists
  • Anesthesiologist assistants
  • Registered dieticians or nutrition professionals
  • Physical therapists
  • Occupational therapists
  • Speech language therapists

Mind you: you don’t have to appoint any of these categories of practitioners to the medical staff, but unless your state law says otherwise, you can.

March 19, 2015

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QUESTION:        In this week’s “NEW CASES,” I see that the U.S. Court of Appeals for the 7th Circuit held that a Chief of Staff’s discussion with an applicant about the red flags in his application and the consequences of denial (reporting to the NPDB) constituted an adverse employment action. Should we immediately halt all such conversations?

ANSWER:        No – you do not need to immediately halt informal discussions with applicants regarding the concerns you have about their applications. Nor need you stop educating applicants and medical staff members about the credentialing process and its intricacies. HOWEVER, as always, you should be careful about the legal implications of how you communicate regarding these matters.

First, let’s look at how the Seventh Circuit described the conversation between the Chief of Staff and Dr. Simpson (internal citations omitted):

Dr. Eric Miller [The Chief of Staff] called Dr. Simpson to give him a “heads-up” about the Credentials Committee’s concerns about his application for medical staff privileges. Eric Miller explained to Simpson that if his application were to be denied, it would have to be reported to the National Practitioner Data Bank. Eric Miller outlined some of the Committee’s concerns, including Simpson’s employment and education history, the need to take an oral exam to obtain licensure from the state of Wisconsin, the two malpractice lawsuits, and interpersonal communications. Eric Miller wanted to give Simpson an opportunity to withdraw his application and avoid the risk that a denial would have to be reported to the National Practitioner Data Bank.

* * *

Dr. Eric Miller accused him of “disruptive behavior,” referring to his interaction with [the CEO] when he attempted to get his sign-on bonus. Eric Miller told Simpson that he would have expected an applicant to be on his “best behavior” and more “collegial” during the pendency of his application for medical staff privileges. Simpson suggested that [the hospital] hire him on a probationary status to see how he would do if Eric Miller was concerned that he was disruptive. Eric Miller responded that they had had some “bad actors” in the past, and it was easier not to hire a bad actor than to get rid of one. Simpson also stated that Eric Miller said he wished Simpson well in finding a position that was a “better fit.”

* * *

We agree that Dr. Simpson has suffered an adverse employment action. To establish an adverse employment action, “a ‘plaintiff must show that a reasonable employee would have found the challenged action materially adverse.’” A reasonable physician would have found the threat that his application for privileges would be rejected and that the rejection would have to be reported to the National Practitioner Data Bank to have been materially adverse. While an applicant who voluntarily withdraws an application cannot state a prima facie case of discrimination, Dr. Eric Miller’s warning indicated that it would be futile for Simpson to maintain his application. The writing was on the wall. In essence, viewing the facts in the light most favorable to Simpson, he was compelled to withdraw his application for privileges before the Credentials Committee voted on it; thus the withdrawal does not undermine his prima facie case.

It is clear that, based on the evidence at hand in the Simpson case, the Seventh Circuit believed that the Chief of Staff had not only educated Dr. Simpson about the credentialing process, the concerns with his application, and the consequences of any potential denial – but, also had impressed on Dr. Simpson that his application would, in fact, be denied.

So, what can be learned from this opinion? First, always have more than one person present if you are going to have this sort of discussion with an applicant. That way, you won’t run into a “he said – she said” type of situation.

Secondly, always document these conversations. Documentation serves as great evidence of what was really said years later, when memories have faded. A good way to create the necessary documentation is to follow up in writing, with a letter to the applicant, thanking him or her for talking with you and then outlining briefly the content of your discussion.

Third, never imply or express that the outcome of a credentialing matter has been decided when it has not. Dr. Simpson came away from his conversation with the Chief of Staff believing that he had been told that his application would be denied and he would be reported to the Data Bank, so it would be better for him to go somewhere else where he could fit in better. This is despite the fact that his application was still on hold at the Credentials Committee level of review (it was incomplete due to missing pieces of information). And, though there were a number of unresolved red flags that were part of his application, there was no reason, at the time the Chief of Staff called him, for anyone to conclude that Dr. Simpson would complete his application sufficiently to have it processed or, in the event that he did complete the application, that it would be denied.

Fourth, to make sure that you choose your words carefully and don’t give the wrong impression, prior to having this type of meeting with an applicant, consult with hospital legal counsel and other medical staff leaders involved in the credentialing process. Then, based on those conversations, create a checklist of items to be discussed with the applicant and use that checklist as the talking points for your conversation. Finally, have legal counsel review any follow-up letter, to be sure that any points of confusion are ironed out in that letter. That way, everyone can be clear that a “heads-up” conversation is just that – a heads-up to the applicant about the current status of his or her application, the immediate next steps in the process, and the details of the credentialing process that lies ahead, including any possibly unexpected consequences (such as reporting to the NPDB).

March 12, 2015

Posted on by hortyspringer

QUESTION:    We just received an application for privileges from a nurse practitioner. As part of her application, she submitted a copy of her “Collaborative Practice Agreement” which stated that “the intent of this document is to authorize the nurse practitioner to practice” at various sites, including our hospital. This doesn’t seem right to us. What can we do?

ANSWER:    In most hospitals, advanced practice registered nurses and physician assistants (advanced practice clinicians) have become an integral and invaluable part of the treatment team. However, there continues to be challenges in credentialing and privileging advanced practice clinicians created by differing standards, expectations, and training.

As with all practitioners, you should establish threshold qualifications for advanced practice clinicians.   We recommend that you develop these qualifications in advance and include them in your medical staff credentials policy.   Typically, threshold qualifications will require evidence of a Collaborative Practice Agreement (for advanced practice nurses) and a Supervision Agreement (for physician assistants).

Specific education, training and experience criteria can be included in the delineation of privileges (“DOP”). The DOP should also address exactly what the advanced practice clinicians are permitted to do in the hospital. It is a good idea to address the role of advanced practice clinicians in consultations, emergency on-call coverage, calls regarding their collaborating or supervising physician’s hospitalized inpatients, daily inpatient rounds, and orders. In all of these areas, medical staff leadership should recommend, and the hospital adopt, standards that best meet the needs of patients treated at the hospital.

Importantly, in establishing threshold qualifications, and in developing the DOP, you will be guided by the relevant licensing statutes. However, it is important to remember that even if the licensing statute allows an advanced practice clinician broad authority to practice, the hospital can impose a more limited scope of practice. The same is true for the Collaborative Practice Agreement and the Supervision Agreement. These documents may be drafted as broadly as legally permissible, but that does not mean that the hospital must allow the same broad practice in its acute care setting.

Finally, consistent with federal and state law, the hospital cannot allow the Collaborative Practice Agreement (or the Supervision Agreement) to “authorize” practice in the hospital. That authorization can only be granted by the Board of the hospital following a full and complete review and a recommendation by the Medical Executive Committee. In this particular case, you would be well advised to inform both the nurse practitioner and her collaborating physician that any language “authorizing” practice in the hospital should be stricken from the Collaborative Practice Agreement.

For more information about advanced practice clinicians, Join Dan Mulholland and Charlotte Jefferies on March 19-20, 2015 in Orlando for the Advanced Practice Clinicians Workshop.

 

March 5, 2015

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QUESTION:          We employ physicians through an entity affiliated with the hospital.  As a part of the employment process, we ask certain medical questions and conduct medical examinations after an offer of employment has been made. This process generates documentation and information on these physicians’ medical conditions. How should we maintain that documentation and information?

ANSWER:        With employed physicians, Title I of the Americans with Disabilities Act (“ADA”) comes into play. Under the ADA, any medical information obtained through medical examinations or disability-related inquiries has to be maintained separately and confidentiality. As a part of this requirement, the Equal Employment Opportunity Commission (“EEOC”) has advised that medical information cannot be kept in an employee’s regular personnel file. Specifically, the EEOC instructs:

Medical information must be collected and maintained on separate forms and in separate medical files. An employer should not place any medical-related material in an employee’s non-medical personnel file. If an employer wants to put a document in a personnel file, and that document happens to contain some medical information, the employer must simply remove the medical information from the document before putting it in the personnel file.

Accordingly, any information obtained as a result of medical inquiries or examinations in the employment process must be kept confidentially and separately from routine employment files. We recommend that the same procedure be adopted for the medical staff process and any medical information that is acquired through that process. More and more hospitals are employing physicians and, typically, the employment contracts are conditioned on appointment to the medical staff and grant of clinical privileges. Although there has not been a case commenting on this issue, there is a risk that the courts could apply the confidentiality requirements of Title I of the ADA to the credentialing process under these circumstances. Further, some courts have given the term “employee” under federal discrimination laws, including the ADA, an expansive interpretation to include members of the medical staff that do not have an employment relationship with the hospital because of the amount of “control” (for example, through the peer review process) the hospital exercised over the physician’s practice. Finally, maintaining health information in a separate file helps reinforce the idea that health concerns will be addressed in a confidential and supportive manner. Thus, we recommend maintaining this information separately from routine employment and credentialing files for both employed physicians and those who are solely medical staff members and granted clinical privileges.

February 26, 2015

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Question:    Are hospitals required to provide patients with a plain language summary of their financial assistance policy at discharge even if they provided a summary upon admission?

Answer:    No. When the Internal Revenue Service (“IRS”) Section 501(r) proposed regulations were out for comment, some commenters interpreted the requirement of a plain language summary “before discharge” as requiring distribution “at discharge.” In response to these comments, the final regulations refer to offering the plain language summary as part of either the “intake or discharge process.”

February 19, 2015

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QUESTION:    Our pediatricians have asked that their Nurse Practitioners be permitted to be listed on the on-call list of the Hospital in lieu of their collaborating physician. Is this permissible under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:    No. Nurse Practitioners (or other nonphysician practitioners) cannot be listed on the Emergency Department on-call coverage list. EMTALA requires hospitals to “maintain a list of ‘physicians’ who are on call for duty, after the initial Emergency Department examination, to provide treatment necessary to stabilize an individual with an emergency medical condition.” 42 U.S.C.A. §1395cc(a)(1)(I).

EMTALA specifically requires the physicians on a hospital’s medical staff to be individually listed to provide on-call services necessary to stabilize a patient.

Nurse Practitioners may not independently participate in the emergency on-call roster (formally or informally by agreement with their collaborating physicians) in lieu of the collaborating physician. The collaborating physicians (or their covering physician) must be listed for on-call coverage and must personally respond to all calls in a timely manner, in accordance with requirements set forth in the Bylaws and EMTALA On-Call Policy. Following discussion with the Emergency Department, the collaborating physician may direct a nurse practitioner to see the patient, gather data, and order tests for further review by the collaborating physician. However, the collaborating physician must still personally see the patient when requested by the Emergency Department physician.

A Nurse Practitioner (and other APRNs and Physician Assistants) may be used to assist the on-call physician in responding to call. Any decision to use any of these nonphysician practitioners to respond initially to the Emergency Department should be made by the on-call physician in conjunction with the Emergency Department physician.

If the on-call physician and the Emergency Department physician do not agree, the Emergency Department physician is the final decision-maker. (If the Emergency Department physician disagrees with the on-call physician’s decision to send a Nurse Practitioner or other nonphysician practitioner, the Emergency Department physician is to request the on-call physician to come in.) This decision must be based on the patient’s medical needs and the capabilities of the hospital, and must be consistent with hospital policies and/or protocols.

Nonphysician practitioners – qualified medical personnel (“QMP”) under EMTALA – can perform the medical screening examination under EMTALA. This also means that the QMP has been granted the clinical privileges necessary to perform the medical screening examination, and that the privileges come within the applicable state licensing regulations for that QMP category. The EMTALA requirement in this situation is that the hospital’s governing Board has approved, in writing, the category of nonphysician practitioners who will be performing the medical screening examination.

Join Charlotte Jefferies and Dan Mulholland in warm, sunny Orlando on March 19-20 for a workshop on Advanced Practice Clinicians!

February 12, 2015

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QUESTION:     We have an Incident Review Committee which receives all reports generated by our occurrence reporting system. This includes slip and fall injuries and broken equipment, but might also include reports related to the competence or conduct of a Medical Staff member. I’m a little uncomfortable with these physician-specific issues going to the Incident Review Committee, because it’s not designed to deal with them. Ultimately, these issues are referred to our Peer Review Committee anyway. Should our reporting process be revised?

ANSWER:    Yes. We recommend that “reported concerns” about a specific physician (i.e., concerns about clinical competence or conduct) not be referred to as “incident reports” and not be reported initially through the risk management/occurrence reporting process. Instead, we recommend that such physician-specific issues be reported directly to the peer review process.

The rationale for this recommendation is to maximize the protection of these reports under the state peer review protection law. In most states, courts are reluctant to protect risk management reports. As a result, they can often be obtained via subpoena in a malpractice lawsuit. The courts’ rationale is that risk management reports are not “peer review.” Instead, risk management issues involve the financial activities of the hospital, and are not necessarily related to improving care. If reported concerns are initially reported through the risk management/occurrence reporting system, there’s a better chance the malpractice attorney could obtain that report in a lawsuit.

In contrast, if physician-specific concerns are called “reported concerns” and sent directly to the peer review process, it would be easier to argue that the report itself is protected by the peer review privilege. The Joint Commission has done us a favor in this regard, by including the discussion of “reported concerns” in its standards that address peer review.

February 5, 2015

Posted on by hortyspringer

QUESTION:     Is there some new rule that hospitals have to publish their charges?

ANSWER:     Yes. The Affordable Care Act requires that hospitals make their charges public. In the 2015 Hospital Inpatient Prospective Payment Systems regulations, CMS said that hospitals could comply with this requirement either by making public a list of their standard charges (whether that be the chargemaster itself or in another form of their choice), or their policies for allowing the public to view a list of those charges in response to an inquiry. CMS said that while posting the charges on the hospital’s website would be one way to meet the requirement, hospitals are in the best position to determine the exact manner and method by which to make the list public. CMS encourages hospitals to undertake efforts to engage in “consumer-friendly” communication of their charges to help patients understand what their potential financial liability might be for services they obtain at the hospital, and to enable patients to compare charges for similar services across hospitals. Hospitals should update the information at least annually, or more often as appropriate, to reflect current charges.

January 29, 2015

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QUESTION:      We are seeing a steady flow of locum tenens physicians come through our hospital in specialties where physicians are in short supply. Many of these physicians are here for months…sometimes even years! What options do we have when we are granting these privileges? Is the traditional “temporary privileges” approach to privileging enough for these physicians?

ANSWER:       While locums may come and go, the fact that all clinical privileges carry the same legal obligations and implications remains.

Because we see more and more locum physicians filling long-term vacancies, the hospital and medical staff leadership need to anticipate this reality and determine whether the expedited, abbreviated credentialing process that has traditionally been used for temporary privileges is enough. From our experience, more and more hospitals and medical staffs are deciding that it is not.

Those facilities are adopting a more robust credentialing process for locum physicians, typically taking these requests for privileges through the full medical staff process, and recredentialing their locum physicians on an annual or biennial basis. While this requires more of the medical staff’s time, energy, and resources, these medical staffs have decided that the benefit of ensuring the quality of care being provided and whether there is a continued need for the locums outweighs this administrative burden.

These are among the issues that Susan Lapenta and Ian Donaldson will discuss during their audio conference on February 3, 2015, “Locum Tenens, My How You’ve Changed: New Rules for the New Roles of Long-Term Locum Tenens Providers.” Please join us by registering here.

January 22, 2015

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QUESTION:     We’ve heard that the federal government issued new regulations regarding hospital financial assistance policies. Is this true?

ANSWER:     Yes. The federal government issued proposed regulations governing financial assistance policies on June 26, 2012. The IRS stated in Notice 2014-2 (January 13, 2014), that hospitals will not be required to comply with the proposed regulations “until such regulations are published as final or temporary regulations.”

“Until such regulations are published as final…regulations” became reality on December 31, 2014. The new regulations govern tax-exempt hospitals’ financial assistance policies, limitation on charges and billing and collection procedures as well as community needs assessments.

Missed the Audio Conference? It’s Not Too Late…

Happy New Year from the IRS!
New Rules for Tax-Exempt Hospitals

Recorded:  January 21, 2015

While you were getting ready to celebrate New Year’s Eve, the folks at the IRS delivered a New Year’s gift that will keep on giving. They issued final regulations regarding the requirements for charitable hospital organizations added by the Affordable Care Act.

These final regulations replace previous guidance on these requirements and are 64 pages long. As you might expect with the IRS, the Devil is in the details. The regulations are chock-full of new rules governing billing, collection, financial assistance and community needs assessment.

To help you navigate through this maze and avoid its many traps for the unwary, Horty Springer partners Henry Casale and Dan Mulholland will present a special audio conference on January 21, 2015 at 1:00 pm ET. Be sure to join them to learn about the new rules before they come back to haunt you.

Register/More Information