Question:

A surveyor from The Joint Commission is at our hospital and has stated that Ongoing Professional Practice Evaluation (“OPPE”) must be completed every six months.  Our policies specify that OPPE must be completed every nine months.  Is the surveyor right?  Help!

Answer:

The Joint Commission requires OPPE to be conducted on an ongoing basis.  Although the written standards and elements of performance do not specify an exact time frame for gathering and evaluating OPPE data, a 2008 “FAQ” on The Joint Commission website states that it is expected that OPPE reviews will occur more frequently than annually, preferably at least once every six months.

This FAQ was updated in March 2010 and states in part as follows:

Q.  What is the intent of the requirement for Ongoing Professional Practice Evaluation?

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2.  A clearly defined process would include but not be limited to:

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• how often the data will be reviewed. The frequency of such evaluation can be defined by the organized medical staff, e.g., three months, six months, nine months, etc.  However, as noted in the teleconferences during 2007, twelve months would be periodic rather than ongoing.

So clearly, six months is not a hard and fast rule, and the FAQ even stretches out to nine months.

Question: We seem to be continuously sending out letters to physicians regarding “utilization issues,” but see little change in practice patterns.  What can we do to give our Utilization Management Committee “some teeth”?

Answer:

Let’s begin with what the Medicare Conditions of Participation (CoPs) (42 C.F.R. §482.30) require.  The CoPs require hospitals to have a Utilization Review (UR) Committee that includes at least two physicians. For Medicare and Medicaid patients, that committee reviews the medical necessity of admissions, durations of stay that appear to be outliers, and professional services that appear to be outliers based on extraordinarily high costs.

Before making a determination that an admission or continued stay is not medically necessary, the UR committee is required to consult with the practitioner or practitioners responsible for the care of the patient and give the practitioner an opportunity to present his or her views.  Within two days of a determination by the committee that an admission or continued stay is not medically necessary, the hospital, the patient and the practitioner responsible for the care of the patient must be notified of the determination.

Many hospitals are beginning to go beyond the CoP requirements and are adopting a Utilization Management Policy that dovetails with their Professional Practice Evaluation (Peer Review) Policy.  Specifically, just as each Department identifies adverse outcomes, clinical occurrences, or complications that will trigger the review process, the UR committee identifies utilization situations that trigger the review process.  Examples of such triggers include continuing hospital stay in extended observation status, or a pattern of increased insurance denials when compared to other Medical Staff members in the same specialty.

The Utilization Management Policy also outlines progressive steps to address utilization concerns, including educational letters, meetings with physician advisors or case managers for specific types of cases, or CME regarding utilization management.

If those progressive steps are unsuccessful or the practitioner refuses to participate in the progressive steps recommended by the UR Committee, the matter is referred to the Professional Practice Evaluation Committee (PPEC, i.e., the Peer Review Committee) or Peer Review Committee for review.  Like any other clinical concern reviewed pursuant to the Professional Practice Evaluation (Peer Review) Policy, the PPEC can develop a detailed performance improvement plan for the practitioner.  If the practitioner refuses to participate in a performance improvement plan developed by the PPEC, the matter is then referred to the MEC for review pursuant to the Medical Staff Bylaws or Credentials Policy.

Reviewing concerns about medical necessity is just one of the many topics covered at The Peer Review Clinic.  Join Paul Verardi and Phil Zarone for this program.

Question: We have always had a Senior Active Staff Category that exempts members from call.  However, as more and more members begin to qualify for this exemption, we are beginning to have some concerns about unduly burdening our younger physicians.  We’ve also been told that a senior exemption of this type might violate EMTALA.   How do we handle this situation?

Answer: It is not uncommon for Medical Staff Bylaws to contain some form of “senior call exemption” from on-call service obligations. A “senior call exemption” is typically based on the physician’s age (usually in the 65 to 70 years old range), and/or the number of years of service on the Medical Staff. But there have always been practical issues concerning this type of exemption, and as the “graying” of the Medical Staff continues, these issues are becoming more pronounced.  For example, a senior call exemption could mean that, for a specialty with only a small number of specialists on the staff, one or two specialists would have to take 100% of call. At its worst, a senior call exemption could mean that no Active Staff specialists are available for call.

In terms of EMTALA, CMS has stated that senior call exemption is not, on its face, a violation of the Act. But while not necessarily prohibited, CMS has been clear that any age/years of service-based call exemption cannot interfere with the required on-call schedule. Therefore, a workable senior call exemption must meet these EMTALA requirements, be fair to the senior physician involved, and be fair to the remaining physicians in the department who may have more call responsibilities once the exemption is granted to the senior physician.

To accomplish that balancing, we recommend that any senior call exemption provision state that the decision to excuse a member from on-call responsibilities not be unilateral (i.e., determined by the physician), but be subject to a determination by the Medical Executive Committee and Board based on the consideration of hardship on others who serve for the specialty.  It should also be recognized that leadership may need to re?establish a senior physician’s on-call responsibility if an undue call burden has developed on the remaining department physicians.

Question: I recently heard someone in the credentialing industry state that we have to provide medical staff hearings within 14 days of a suspension in order to qualify for Health Care Quality Improvement Act immunity.  Is this true?  Do we need to make Bylaws changes?

Answer: No.  Though there is language that speaks of “14 days” in the HCQIA, that language does not require health care facilities to hold hearings within 14 days in order to qualify for immunity.

The HCQIA specifies that, as a condition of immunity, professional review actions must be taken “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances.”

The statute goes on to describe the steps health care entities may take in order to meet the “adequate notice and hearing requirement,” including providing notice of the reasons for the proposed action, the right to request a hearing, and at least 30 days to request the hearing, the right to be represented by an attorney at the hearing and to have a record of the proceedings, among other things.

Lastly – and most importantly for your question – the statute provides three exceptions to the notice and hearing requirements.  Specifically, the statute states that it should not be construed as requiring a hearing where (1) there is no adverse professional review action, or (2) where a suspension of not longer than 14 days is implemented while an investigation is conducted to determine whether a professional review action is needed.  In addition, the statute states that it does not preclude “an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such action may result in an imminent danger to the health of any individual.

In our experience, health care entities and their medical staff leaders are simply unable to conduct investigations within 14 days and, even if they could do so, are unwilling to implement immediate suspensions when there is not an imminent threat to the health or safety of an individual.  Accordingly, of the three options listed above, it is our experience that hospital leaders make use of only numbers (1) and (3).  Accordingly, the leaders of hospitals and their medical staffs either (1) conduct peer review, investigations, and hearing procedures prior to implementing a proposed adverse action, such as a suspension or (2) implement a precautionary suspension immediately because an imminent threat has been determined to exist.  In either case, a 14-day hearing requirement would not apply.

In Som v. Bd. of Trustees of Natchez Regional Med. Ctr., the court noted, in passing, that the physician was a hospital employee – so why was the physician given a medical staff hearing?  WHY NOT ADDRESS THIS ISSUE UNDER THE employment AGREEMENT?  The court doesn’t say.

However, we have some ideas that we would like to share that we think will prevent a similar law suit.  Join Henry, Rachel and Charlie in Scottsdale on October 4-6 for the “Institute on Employed Physicians and Their Impact on the Medical Staff.”

 

Question: We have several “office-based” providers on our Medical Staff who do not have inpatient privileges.  The hospital employs these physicians and owns the clinics where they practice.  These physicians are granted office-based privileges by the hospital.  They would like to be able to order blood transfusions and IV antibiotics in our Infusion Center.  Are they permitted to do this?

Answer: If the Infusion Center is an inpatient service, then the “office-based” providers would have to have inpatient clinical privileges to order blood transfusions and IV antibiotics.  In a recent CMS memorandum on orders for outpatient services by practitioners without clinical privileges, CMS indicated: “It was not our intention to create access to care barriers or to limit the ability of practitioners who are appropriately licensed, acting within their scope of practice, and authorized under hospital policies to refer patients for outpatient services. We distinguish these outpatient referral cases from cases where a practitioner provides care in the hospital, either to inpatients or outpatients, and must have medical staff privileges to do so.” (emphasis added).  However, if the Infusion Center is an outpatient clinic, then the office-based providers could order these services, according to a hospital policy that complies with the criteria in that CMS memo.

 

Question:

Our community has a large physician group that has its own internal quality review process.  The group is not affiliated with our hospital, but the members of the group have clinical privileges here.  Recently, the group’s president proposed that the hospital and the group notify each other if certain events occur (for example, if concerns are raised at the hospital about a group physician).  The group president suggested this would allow both the hospital and group to do a better job assessing the qualifications of physicians.  This seems to make sense, but is such sharing of information permitted?

Answer:

First, check your state peer review statute.  It may expressly permit (or prohibit) the sharing of peer review information in the situation described.

If state law does not specifically address the sharing of information, consider whether the group is nonetheless covered by the peer review statute.  If the group meets the statute’s definition of a “peer review entity” that is governed by the statute, then you would have peer review information being shared between two entities covered by the statute.  This should reduce any risk of sharing information.

Even if the group meets the definition of a “peer review entity” under state law, we would still recommend that hospitals and groups enter into “Information Sharing Agreements” before sharing peer review information.  Such agreements make clear that the purpose of the disclosure is to promote patient safety, which is the same general purpose advanced by peer review protection laws.  This reduces the risk that the appropriate sharing of information will be viewed as a “waiver” of the peer review privilege.  An Information Sharing Agreement also describes exactly what type of peer review information may be shared, and whether such sharing will only occur upon request or proactively, when a certain event occurs.

An Information Sharing Agreement should require that physicians consent to the sharing of information.  This eliminates the risk that the physician whose information is shared will claim that either the hospital or a group was trying to harm the physician economically.

If state law is silent about the sharing of information and the physician group is not included in the definition of a “peer review entity,” it may still be possible to share peer review information.  However, in that case, an Information Sharing Agreement is even more important.

For a more in-depth discussion of sharing peer review information, join us in Scottsdale October 4-6, 2012 for The Peer Review Clinic.

Question:

Are there guidelines to follow in terms of sharing cost information with physicians? For example, a cardio-thoracic surgeon has asked about the “invoice” cost of products/supplies used in his cases.  Can we share that information with him?

Answer:

Before giving physicians prices, the hospital should review any agreements that the hospital has with applicable vendors or with a group purchasing organization.  There are frequently confidentiality provisions in those agreements which would prohibit the hospital from sharing this data with physicians or anyone else.  If there are no such prohibitions in the agreements, then it would be permissible for the hospital to share pricing information with physicians as long as those physicians do not work for one of the hospital’s competitors.

QUESTION:

I’ve always enjoyed bringing my dog to “Pup Night” at PNC Park on Pittsburgh’s North Side. But I was taken aback when I saw a patient with a dog in the ED the other day. The ED staff took it all in stride and said they were fine with it by their service animal policy. What’s that all about?

ANSWER:

It’s about federal rules for service animals and hospitals that come from the Americans with Disabilities Act (the “ADA”), the controlling federal law.

Under the ADA, businesses (including hospitals) must allow people with disabilities to bring their service animals into all areas of the business where customers are normally allowed to go. That means a service animal should generally be permitted in any area of the hospital that is unrestricted to inpatients, outpatients or visitors. The exceptions to that general rule are where the presence of the service animal would (i) require a fundamental alteration in the hospital’s policies or practices, or (ii) pose a direct threat to the health or safety of others.

A hospital may ask if an animal is a service animal but cannot require special ID cards or certifications for the animal. The hospital can ask the individual what work or task the animal has been trained to perform. That can be useful in determining the service animal’s full (or appropriately limited) role for assisting the patient in the hospital.

The hospital cannot ask about the patient’s disability. Not being able to ask the patient about his or her disability may at first seem rather counter intuitive. But that’s where asking what work or tasks the animal has been trained to perform becomes particularly useful.

The service animal is under the handler’s control, and the handler must be able to control the service animal. If the service animal is out of control and the animal’s handler does not take effective action to control it, the hospital can direct the service animal to be taken away.

Question: Do you know what The Joint Commission’s position is on “scribes”?

Answer:  The Joint Commission recently published new FAQs regarding scribes.  TJC describes a scribe as “an unlicensed person hired to enter information into the electronic medical record (EMR) or chart at the direction of a physician or practitioner (Licensed Independent Practitioner, Advanced Practice Registered Nurse or Physician Assistant).”  TJC’s position is that a scribe cannot act independently, but may document a physician or practitioner’s dictation and/or activities.  TJC also stated that scribes are usually, although not exclusively, used in emergency departments, when accompanying a physician or other practitioner and record information into the medical record.

The FAQs go on to state that TJC does not endorse or prohibit the use of scribes, but if scribes are used, it lists the standards that surveyors will expect to see compliance with, including the standards regarding Human Resources, Information Management, Leadership (contracted services standard), Rights and Responsibilities, Record of Care and Provision of Care.

Finally, the FAQs state that “The Joint Commission does not support scribes being utilized to enter orders for physicians or practitioners due to the additional risk added to the process.”

Question: We have recently revamped our peer review process, eliminated our Department Peer Review Committees and instituted a Multi-Specialty Peer Review Committee.  The first few meetings of the multi-specialty committee have left us feeling like we are spinning our wheels.  Because no one on the committee is very familiar with the cases that have been referred for review, much of the meeting is spent trying to figure out exactly what occurred in the case or with questions to which no one on the committee has answers.  Most meetings end with the matters being tabled or held over until the next meeting.  Can you help us get this on track?

Answer:  First, congratulations on instituting a Multi-Specialty Peer Review Committee (or, using Joint Commission terminology, Professional Practice Evaluation Committee (PPEC)).  In our work with hospitals and Medical Staffs all over the country, we have found a multi-specialty committee to be the foundation for an effective process.  The issue you are encountering is not unique and can be addressed fairly easily.

Most PPECs do not include Department Chairs – and for good reason.  Department Chairs typically serve on the Medical Executive Committee – the only committee with disciplinary authority.  To emphasize to all practitioners that the peer review process is intended to be educational and helpful – not punitive – it is important to keep a bright line between the peer review process and the disciplinary process.  Thus, Department Chairs who serve on the MEC should not also sit on the PPEC.  In addition, an important role of the PPEC is to serve as a check and balance – reviewing the determinations and interventions made in the professional practice evaluation process by Department Chairs.  That check and balance function doesn’t work if the Department Chairs sit on the PPEC.

The downside to not having Department Chairs sit on the PPEC is that, often, they are the individuals who are most familiar with the cases under review.  Typically, they have either done the initial review of the case personally or assigned it to someone else in the Department with the appropriate clinical expertise to evaluate the care provided and, based on that review, determined the most appropriate intervention to address any identified concerns or to refer the matter to the PPEC.

To make the PPEC’s review more effective and efficient then, consider having either Department Chairs or the assigned reviewers who conducted the initial review present the cases to the PPEC and answer questions, but not participate in the deliberations of the PPEC.  Another option is to have the member of the PPEC who is in the same specialty review the case with the Department Chair or assigned reviewer prior to the PPEC meeting and then present it to the PPEC.

For a crash course on creating an effective peer review process, join Paul Verardi and Phil Zarone for The Peer Review Clinic.