Question: Medicare requires hospitals to include in their discharge plan a list of Home Health Agencies (“HHAs”) or SNFs that participate in the Medicare program and serve the geographic area in which the patient resides.  Currently, we simply provide a list of all providers within a particular category.  However, we have an ever-increasing need to be more aware of the quality outcomes of such providers, since readmission rates ultimately reflect poorly on us (at least in CMS’s eyes).  Would we satisfy Medicare’s requirements if we continue to list all providers, but identify some of them as “preferred providers” based on their quality outcomes?

Answer: It appears that hospitals are not permitted to endorse certain post-hospital providers based on their quality of care.  The relevant regulation states:

The hospital must include in the discharge plan a list of HHAs or SNFs that are available to the patient, that are participating in the Medicare program, and that serve the geographic area (as defined by the HHA) in which the patient resides, or in the case of a SNF, in the geographic area requested by the patient. HHAs must request to be listed by the hospital as available….

The hospital, as part of the discharge planning process, must inform the patient or the patient’s family of their freedom to choose among participating Medicare providers of posthospital care services and must, when possible, respect patient and family preferences when they are expressed. The hospital must not specify or otherwise limit the qualified providers that are available to the patient.

42 C.F.R. §482.43(c)(6) – (c)(7) (emphasis added).

In preamble comments in the Federal Register, CMS explained further:

[I]if a hospital chooses to develop its own list of HHAs or SNFs, the hospital would have the flexibility of designing the format of the list. However, the list should be utilized neither as a recommendation nor endorsement by the hospital of the quality of care of any particular HHA or SNF.

69 Fed. Reg. 48916, 49224 (August 11, 2004).  Given recent developments with Medicare, it’s possible CMS will change its interpretation of this regulation.  However, for the time being, it seems lists of post-hospital providers may not identify “preferred providers.”

Question: Our Professional Practice Evaluation Committee (PPEC) chair is also a member of our Credentials Committee. Does this arrangement create inherent conflicts, or should we be concerned that this individual may be biased by what she learns in one meeting or the other?

Answer: It is always wise to be mindful of potential biases/conflicts (or appearances) that might arise when a Medical Staff member wears multiple hats. And while the Medical Staff leadership always has the discretion to determine whether a conflict or bias exists, in this case, we do not believe that having the PPEC Chair on the Credentials Committee is inherently problematic.

Primarily this is because the two committees are involved in very different processes (i.e., focusing on a specific problem vs. credentialing and privileging issues).  In addition, because of the multiple levels of review in each of these processes, there are sufficient checks and balances in place to prevent one individual from influencing any recommendations that are ultimately passed up the chain of command.  It is also helpful to note that neither the PPEC nor the Credentials Committee has authority to recommend adverse actions.   This resides with the Medical Executive Committee.

Of course, if some unique situation ever did arise, the committee members always have the discretion to recuse this individual if it is believed that his or her presence would be unfair to a certain physician or if his or her presence would inhibit discussion or otherwise skew the recommendation of the committee. Sometimes, recusal is best just to manage appearances, to keep the focus on the merits.

Question:  Our Medical Executive Committee recently made a recommendation to revoke the privileges of a physician appointed to our medical staff.  This has come at the end of a long process – extending for years – with medical staff officers, department chairs, and the peer review committee trying to get the physician to change her clinical practice habits.  Immediately after requesting a medical staff hearing, the physician demanded copies of every document in the hospital’s files that has her name on it, as well as peer review information involving other physicians in her specialty area.  Do we have to provide all of this information to her?

Answer:  No.  A medical staff hearing is not a trial.  Formal “discovery” that seeks every possible relevant document does not apply in this context.  That said, fairness – as well as the federal Health Care Quality Improvement Act – requires that the individual under review be given a statement of the specific reasons for the recommendation.  Consistent with this, the physician should also be given copies of those documents actually considered in support of the recommendation, such as the medical records, incident reports, reports of outside consultants or other documents which formed the basis for the recommendation made by the Medical Executive Committee.  This information should also be made available sufficiently in advance of the hearing to allow the physician adequate time to prepare a response.

It is becoming increasingly common for physicians under review or subject to a medical staff hearing to request the peer review records of other physicians.  The argument is generally that these other records are needed to show that he or she was treated differently than other physicians on the medical staff.  This specific issue has been considered by several courts, all of which have said that there is no requirement to provide information about other physicians in the context of a medical hearing.  The subject of a medical staff hearing is the fitness of the physician under review.  Files of other physicians are simply irrelevant to this assessment.  In order to prevent a lot of time spent arguing over this issue, we recommend that your medical staff bylaws or credentials policy include a specific statement to this effect.

Question:

We’re trying to move to a paperless office.  Do we need to retain paper copies of signed contracts?

Answer:

The federal government and many states have adopted the Uniform Photographic Copies of Business and Public Records as Evidence Act.  The federal version of this law says that if an organization, in the regular course of business, makes a copy which “accurately reproduces” the original, then “the original may be destroyed in the regular course of business unless its preservation is required by law.  Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not….”  28 U.S.C. §1732.

Thus, you have to check state law to see if the Uniform act has been adopted.  If your state has adopted the Uniform act or a similar act, and if there is no state law that requires you to retain signed originals of certain business records, then you may convert signed contracts to electronic form and dispose of the paper copy.  Of course, to be on the safe side, it would be a good idea to retain paper copies of particularly important documents, such as the organization’s Articles of Incorporation, merger agreements, high-dollar contracts, and so on.

Question:  We have an applicant for appointment.  The department chair at his last hospital and the CEO at the hospital prior to that have mentioned issues about his getting along with staff he considers to be “beneath him.”  So, we asked him to provide the names and contact numbers for two nurses, technologists, or medical assistants who we could contact to inquire further about his professional conduct.  He refuses and claims we have no right to speak to non-physician practitioners, since they are not “peers” and cannot provide peer references.  Is he right?

Answer:   No, he is not correct.  During the credentialing process, the hospital and its leaders may speak to anyone who has information that could be relevant to the applicant’s qualifications, including clinical skill, judgment, professional conduct, and reputation.  While the credentialing process should include “peer” references, that does not mean it should exclude all other information.  “Peers” are valuable to the credentialing process because they provide the clinical expertise that is necessary to evaluate whether the individual is qualified to exercise the clinical privileges he or she is requesting.  But other individuals can have information that is just as valuable – as in this case, where the unresolved issue is whether the applicant is able to cooperate with other members of the health care team and promote a harmonious work environment.

How you respond to the applicant depends, of course, on what your medical staff bylaws and related documents state.  Provided you have appropriate language, however, the best approach would be to deem the application incomplete – and ineligible to be processed – until the requested information is provided by the applicant and any concerns about his conduct are resolved.

Question:

Our emergency physician group has been recruiting to fill an open slot and they finally found someone.  They are eager to get her started ASAP, with temporary privileges.   While most of her references are stellar, one indicated that she was subject to a performance improvement plan related to medical recordkeeping three years ago.  She authorized us to inform the head of the ED group, and she explains that during a period of three months when she was caring for her ailing mother, she had some issues.  Since then there have been no problems, she says.    Should we wait for the full Credentials Committee to meet in three weeks?  The head of the ED group is very insistent.

Answer:

It would be prudent to wait, so that you can get full information to verify her explanation.  Temporary privileges can be granted when there is a complete, clean application.  This application is not complete unless and until all issues have been explained to the satisfaction of the Credentials Committee.  A Credentials Committee sometimes recommends conditional appointment to address issues in an applicant’s background.  If you don’t follow your process for this applicant, others who do not satisfy your qualifications may demand that they also be granted temporary privileges. Physicians who have not been involved in credentialing may not appreciate the legal and accreditation standards that define circumstances in which temporary privileges may, or may not, be granted.

Join Barbara Blackmond and Charlie Chulack for an audio conference on December 11, 2102  to explore the pressures that sometimes lead hospital recruiters and physician groups to push for quick action on an application when that simply can’t be done safely and wisely.  We’ll provide some practical guidance to help educate all of those involved in recruitment.

Question: We have several older surgeons on our medical staff.  We do not have any quality data to show that they are practicing in an unsafe way but we would like to be proactive since we have heard rumors at least about some of them.  Can we require that all physicians over the age of 70 be reappointed annually and/or get a physical and neurocognitive exam?

Answer:

Dealing with older physicians typically feels like the proverbial “rock and hard place.”  These physicians often have served in leadership positions on the medical staff and maybe even the board.  They are committed to their patients and to the practice of medicine.  And, given the physician shortage, we need them.

At the same time, we have an obligation to protect patients and to only allow physicians who are safe and competent to practice.

With respect to physicians, the conventional wisdom was that “practice makes perfect.”  Several studies have turned this wisdom on its head.  A 2005 article in the Annals of Internal Medicine showed that there was an inverse relationship between performance and years of practice.  In other words, performance declined as years of practice increased.  Even though another study, reported in the Annals of Surgery in 2006, had slightly different results and reached a different conclusion, older physicians still had a higher mortality rate in three out of eight procedures.

However, establishing a rule that “all physicians over age 70 must be reappointed annually” or “must be subject to a focused evaluation” or “must undergo a physical and neurocognitive examination” may not be consistent with state or federal antidiscrimination laws.  As the Oury case (discussed above) demonstrates, we are seeing a growing number of claims brought by physicians under the Age Discrimination in Employment Act (ADEA) and similar state laws.  Although the federal law allows age to be used as a factor in employment decisions if age is a “bona fide occupational qualification,” establishing this is no easy matter.

Therefore, we recommend that the best approach, to address concerns about patient care and safety, is to improve your peer review process and address concerns as they arise.  This improvement can start with education.  Physicians, advanced practice providers, and staff alike need to understand their obligation to report concerns through the peer review process.  Enabling an impaired physician, even if that physician is a beloved elder surgeon, is not good for patients and ultimately not good for the physician. (Who wants to end a stellar career with a horrible patient outcome and an ugly lawsuit to boot?)

Once a concern has been reported, an individualized and focused review of the physician’s practice can be initiated.  This review can include proctoring, monitoring, a competency assessment, and a physical or neurocognitive examination.  The record of concerns will support that the action was legitimate and non-discriminatory and will be useful to have if a claim for discrimination is brought.

While bright line rules are sometimes nice to have, in this area, we think a rule that singles out older physicians may be counterproductive and an invitation to be sued.

 

Learn effective ways to handle the aging physicians on your medical staff at The Complete Course for Medical Staff Leaders and The Advanced Roundtable for Physician Leaders. Both will be held in San Francisco, October 25-27, and New York, November 15-17.

Question:  We sent a case out for external review and what we got back is not exactly what we were hoping for.  The report provides valuable information about what went wrong and what could have been improved.  Unfortunately, the “all-in-one” report critiques several physicians and nurses – identifying them by name – and addresses areas where the hospital’s own processes contributed to the poor outcome.  I’m afraid that if we show this report to the doctor about whom we are primarily concerned, he will simply focus on the areas that critique others.  What can we do?

Answer:  The scenario that you report is not all that uncommon.  Without explicit guidance, many providers of clinical reviews provide reports in the manner that does not best serve the needs of those on the receiving end, who must fit them into the peer review and performance improvement processes at their hospital.  It is not necessarily that external reviewers are trying to be complicated.  It’s just that to them, it seems logical when asked to review a case to simply identify all of the areas where concerns are noted and/or where there is room for improvement.  For this reason, it is important that peer reviewers who seek external reviews always have written agreements with the reviewer.  That agreement should clearly outline expectations for the review, the report, and any follow-up that may be necessary.  Be sure to address at least the following:

• Qualifications of the reviewer(s)
• Nature of the review (number of cases, extent of review)
• Format of final report (clinical conclusions only; information separated based on identity of individual about whom concerns are raised)
• Participation in medical staff hearings and litigation which result
• Response to any external review obtained by physician
• Response to any real by physician
• Timeliness (of review and any follow-up services required)
• Confidentiality

For more details on obtaining external reviews – and incorporating them into an efficient, effective, and thoughtfully-designed performance improvement process, join us October 4-6 for The Peer Review Clinic, being offered at the beautiful and serene Fairmont Princess in Scottsdale, Arizona.

Question: Is it okay to accept reports from physicians into medical records that have been dictated by the physician using voice recognition software, but not proofread or signed by the physician?

Answer: Click to see the answer…

Question:

I generally like the idea of strengthening the criteria for appointment to include such things as board certification, no exclusion from Medicare, and no felony or misdemeanor convictions.  But what happens to the person who made a mistake in the past?  Will he, or she, be forever banned from practicing at a top-notch hospital?

Answer:

This was a question we received at a recent on-site educational program.  It was asked by a physician leader who was also a distraught mom.  Her son had been convicted of a DUI following a party celebrating completion of his first year of internship training.  When the son applied for a license, based on the DUI, the state board gave the new young doctor a probationary license.

The mom’s worry was palpable.  She wanted to know if this single mistake would forever change her son’s life.

The answer is probably “yes” and “no.”  In all likelihood, the young doctor is going to have to disclose the DUI and the probationary license on future applications for appointment, employment, managed care participation, and licensure.  It is best to be forthcoming.  Mistakes will often be forgiven, but no one will be anxious to forgive a physician who misrepresented or omitted uncomfortable facts on an application.  That quickly becomes an issue of integrity, and integrity, especially for physicians, is nonnegotiable.