Question Of The Week

December 19, 2024

Posted on by Courtney Patterson

QUESTION:
One of our doctors just received a letter that his Medicare billing privileges have been revoked.  What does this mean and is there anything that can be done about it?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Medicare billing privileges can be revoked for a variety of reasons listed in 42 CFR §424.535 but revocation of billing privileges is not the same thing as being excluded from Medicare. So, your hospital and the physician’s employer do not have to terminate any contracts they have with him.  However, it is always a good idea to double-check the OIG exclusion list just to make sure.  Moreover, revocation of Medicare billing privileges does not affect the physician’s ability to submit claims to non-Medicare payers using his NPI, and the physician can still provide locums coverage for other physicians as long as claims are not submitted under the name and NPI of the physician whose billing privileges were revoked.

Revocation of Medicare billing privileges usually is only in effect for a finite period of time, after which the physician can reapply for Medicare enrollment.  In addition, the physician can request that the Medicare Administrative Contractor (“MAC”) reconsider the revocation within 65 days of the date of the revocation and also ask for an extension of time to do so pursuant to 42 CFR §498.22.

Revocation of Medicare billing privileges is a serious matter and can cause a lot of disruption beyond just losing revenue.  But it is far less onerous than getting excluded from Medicare and there are opportunities to get reinstated.  Of course, like other situations dealing with the Government, don’t try this at home without close adult legal supervision.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

October 17, 2024

Posted on by jwilbert

QUESTION:
Our leadership team is getting a lot of conflicting information as to what we can and cannot do regarding political campaigns.  Where can we go to find the rules?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICK CALABRESE:
A 501(c)(3) organization cannot participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.  The word “any” is emphasized because no de minimis amount of political intervention is permitted and the penalties can be harsh – penalties range from a warning, to an injunction, to a tax on prohibited political expenditures, to revocation of tax‑exempt status.

Since the penalties can be so serious, the IRS has provided a number of guides to help hospitals recognize and to avoid these penalties:

Rev. Rul. 2007‑41 provides 21 examples of Political Campaign Dos and Don’ts

April 12, 2024, Congressional Research Service Guide

August 19, 2024, IRS FAQ about the ban on Political Intervention

2024 IRS Mini Course on the ban on Political Intervention

We also recommend this short podcast by HortySpringer partners Dan Mulholland and Henry Casale in which they review the rules and also discuss the guidance from the IRS in terms of what a hospital can and cannot do this election season.

If you have a quick question about this, e‑mail Nick Calabrese at ncalabrese@hortyspringer.com.

October 10, 2024

Posted on by Courtney Patterson

QUESTION:
We are amending our medical staff governance documents and considering giving Advanced Practice Professionals (“APPs”) a larger role in medical staff affairs.  Do you have any recommendations based on your experience working with other hospitals?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
With the ever-increasing role that APPs, such as physician assistants and nurse practitioners, play in the delivery of health care in hospitals, we are seeing many hospitals across the country wrestle with this question.  Unfortunately, there is not a “one-size-fits-all” answer and the appropriate solution needs to take into consideration federal and state regulations and the culture of your medical staff and hospital, among other things.

Let’s start with the regulations.  The Centers for Medicare & Medicaid Services Conditions of Participation (“CoPs”) defer to state law when it comes to appointing APPs to the medical staff:  “The medical staff must be composed of doctors of medicine or osteopathy.  In accordance with State law, including scope-of-practice laws, the medical staff may also include…non-physician practitioners who are determined to be eligible for appointment by the governing body.”  42 C.F.R. §482.22(a) (emphasis added).  However, you want to be sure to check your state’s laws and regulations to determine if those sources are more restrictive.  By way of example, Pennsylvania limits medical staff membership to physicians and dentists.  28 Pa. Code § 107.2.  Even though Pennsylvania has a “structured exception” allowing hospitals to admit podiatrists to the medical staff, there is no corresponding exception for APPs.  Compare Pennsylvania’s restrictive approach with the approach taken by Colorado, which allows both physicians and non-physician practitioners to be on the medical staff.

Even in the states that permit APPs to be on the medical staff, we are seeing a variety of approaches.  Some hospitals make APPs eligible for medical staff membership, including appointment to the Active Staff.  That being said, these hospitals impose appropriate limitations on their prerogatives when compared to physician members of the Active Staff such as not being able to serve as the President of the Medical Staff (the Interpretive Guidelines to the CoPs say that the President of the Medical Staff “must be a doctor of medicine or osteopathy, or, if permitted by state law where the hospital is located, a doctor of dental surgery, dental medicine, or podiatric medicine”).  While we don’t see this approach taken frequently, it is more common with Critical Access Hospitals or smaller hospitals where the majority of clinical services are provided by APPs.

A more common approach is gradual integration of APPs into medical staff functions.  For example, the medical staff may begin by creating an APP Credentials Committee which reviews applications of APPs and reports to the regular Credentials Committee, or appoint APPs to the Credentials Committee to tap into their expertise when it comes to state scope of practice laws for APPs, how they practice, and what they are permitted to do in similarly-situated hospitals.  Some hospitals are also appointing an APP to the Medical Executive Committee and Multi-Specialty Peer Review Committee.  It varies with respect to whether they are given voting rights since we have seen some physician members of the medical staff express discomfort with an APP, who may have a supervising agreement while practicing in the hospital, evaluating the care they provide as a part of one of these committees.

In conclusion, APPs are increasing in number and have a growing role in providing clinical services in hospitals.  If your medical staff has not yet addressed this issue, the odds are that it will need to in the future.  Nevertheless, these are interesting and exciting issues whose solutions can result in a more vibrant and robust medical staff and hospital.

If you have a quick question about this, e-mail Charles Chulack at CChulack@hortyspringer.com.

October 3, 2024

Posted on by Courtney Patterson

QUESTION:
We have a patient scheduled for surgery who is deaf and we want to make sure that we are providing reasonable accommodations in accordance with the Americans with Disabilities Act. With that said, do we have to hire an in-person sign language interpreter, or can we rely upon video remote interpreting services to communicate with the patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
It’s great that you’re planning ahead to ensure that you can communicate effectively with your patient, especially in situations like these where communication is critical to quality care.  Under Title III of the Americans with Disabilities Act (“ADA”), hospitals and other places of public accommodation are required to provide “auxiliary aids and services” to individuals with disabilities to ensure effective communication.  “Auxiliary aids and services” include qualified interpreters who are either on site or available through video remote interpreting (“VRI”) services.

If your hospital is considering VRI services in lieu of in-person interpreters, please note that, in accordance with the ADA, these services must provide:

  • real time, full motion video and audio over a dedicated, high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
  • a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;
  • a clear, audible transmission of voices; and
  • adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 CFR § 36.303.

The type of auxiliary aid or service will vary depending on the complexity of the communication involved and the context in which the communication is taking place.  While the ADA encourages consulting with the individual to determine the type of aid needed, it is the ultimate decision of the hospital or public accommodation so long as the chosen method of communication results in effective communication.  Therefore, as long as the VRI services provided meet the requirements listed above, and it is determined that VRI is an appropriate method of communication under the circumstances, then it is likely sufficient for a hospital to offer a patient such services as a reasonable accommodation rather than provide and pay for an in-person interpreter.

If you have a quick question about this, or any other hospital-related ADA issue, e‑mail Mary Paterni at mpaterni@hortyspringer.com.

September 26, 2024

Posted on by Courtney Patterson

QUESTION:
Since election season is upon us, what are the rules regarding 501(c)(3) tax‑exempt organizations participating in political activity?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
This is directly from the IRS website:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.  Violating this prohibition may result in denial or revocation of tax‑exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances.  For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non‑partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get‑out‑the‑vote drives, would not be prohibited political campaign activity if conducted in a non‑partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

If you have a quick question about this, e‑mail Nick Calabrese at ncalabrese@hortyspringer.com.

September 19, 2024

Posted on by Courtney Patterson

QUESTION:
We recently learned that one of our internists lost three fingers in an alligator attack while on a fishing retreat in Florida. He hasn’t been in the hospital for about seven weeks. Do we need to place him on a leave of absence or send him a request for information/records/medical clearance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
What a traumatic and unfortunate thing to have happen!  When new concerns about practitioner impairment are raised, the hospital and medical staff have a responsibility to take steps to assure patient safety.  The right approach often depends on the circumstances.

In your scenario, the physician is an internist.  As a first step in evaluating whether the new health information raises concerns about the physician’s safety might be to evaluate his privilege delineation.  Does it include privileges that require manual dexterity?  The ability to grasp with a fist?  The use of both hands?  Also consider other Medical Staff obligations.  Would losing full use of one hand affect the physician’s ability to utilize the electronic medical record or other hospital equipment?

If the answer to any of the above is “yes,” then the matter should probably be referred to the committee within your hospital that handles matters of practitioner health (e.g., your Medical Staff Leadership Council or Practitioner Health Committee or Wellness Committee).  That committee can then decide next steps (in accordance with your Practitioner Health Policy, of course!), which might include some or all of the following:

  • Reaching out to the physician to inquire about his well-being, express peer to peer concern, ask about his practice plans, and offer support to the physician as he navigates how this new injury will affect his practice long-term. This initial communication might be a good time to ask the physician if he is planning to request a leave of absence in light of this extended time away from his hospital practice.
  • If the physician does not intend to request a leave of absence, the leadership may consider implementing one unilaterally – if the Medical Staff Bylaws (or other policies) authorize it. We recommend Bylaws language authorizing leaders to place a practitioner on a leave of absence in situations where the practitioner has been absent for a specified period of time (for example, 30 days) and the reason is believed to be related to a health issue.  This allows the leadership to not only plan adequately for the practitioner’s absence (e.g., reconfiguring the ED call schedule without the LOA practitioner on it), but also to ensure a meaningful reinstatement process when the practitioner is ready to return to practice.

In your case, a leave of absence would be a perfectly appropriate option.  Any decision to place the practitioner on leave should, of course, be communicated to the practitioner and memorialized in writing.  Further, it is generally helpful to take this opportunity to inform the practitioner about the reinstatement process, so that as he contemplates his return to hospital practice, he can plan accordingly (including making his reinstatement request well in advance of his planned return and, as appropriate submitting information and medical clearances along with the request).

  • In many cases, you may find that the practitioner with a new impairment is not ghosting the hospital in order to avoid detection or scrutiny but, rather, because he is still actively managing/recovering from the injury or illness and simply needs more time – or because he has insight into his changed circumstances and is stepping away from some of his hospital duties temporarily or permanently while he evaluates the impact the impairment will have on his ability to continue aspects of his practice. If you talk to the practitioner and find that he is thoughtfully managing his recovery, has taken steps to protect patients in the meantime (e.g., made plans to cover his practice, modified his practice while he recovers), then the leadership might decide that no leave of absence is required.  This does not mean you need to forego oversight altogether.  But, depending on the situation, the leadership might decide to simply send the practitioner a letter memorializing their conversation – and then ask the physician to let the health committee know in advance (e.g., 10 days or 30 days – whatever is reasonable) that he intends to return to practice so that the situation can be revisited at that time.  Again, this can be a good time to give the physician a “heads up” that additional information about his condition or a health evaluation could be requested in the future, depending on how things go.
  • Finally, if the physician’s condition clearly implicates his safety for some of his privileges (those requiring full use of the hands), the health committee may need to eventually go through the interactive process of discussing with the physician his intentions with respect to his hospital practice (e.g., does he intend to voluntarily relinquish those that require the use of both hands?) and/or whether any reasonable accommodations would be appropriate to assist him in fulfilling the essential functions of Medical Staff membership and/or his clinical privileges (e.g., will special equipment be required to support one-handed typing or voice transcription? Scribe services?).  You may need to request additional information from the physician at that time.  But, it’s possible that once he has fully recovered, your internist will come to you with ample information about his condition and a reasonable plan for practice.  Unless there is a pressing need to request additional information right now (for example, the physician tells you that he will not be requesting a LOA because he intends get back to practice as soon as possible), it may be best to wait to have these conversations after the physician has recovered enough to be thinking about his return.

In the end, it is important that Medical Staff Bylaws and related documents (e.g., Credentials Policy, Rules and Regulations, Practitioner Health Policy) give physician leaders the tools they need to effectively and efficiently address concerns about practitioner health and impairment (like procedures for implementing LOAs and processing reinstatement requests).  Sometimes you need to take advantage of those tools.  But sometimes, depending on the practitioner and the circumstances, those tools end up being unnecessary (leaving the leadership in the enviable position of simply exercising oversight, without having to invoke more formal intervention strategies).

September 12, 2024

Posted on by Courtney Patterson

QUESTION:
I saw in the August 22, 2024, edition of the HLE that the FTC regulations effectively outlawing restrictive covenants were invalidated by a district court in Texas.  Does that ruling apply in the entire country and did it have anything to do with the Supreme Court’s decision overruling the Chevron Doctrine?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The Federal Trade Commission issued final rules that were to go into effect on September 5, 2024 that would: (i) ban restrictive covenants in new employment agreements; (ii) permit a restrictive covenant in an acquisition; (iii) require employers to rescind covenants currently in effect; and (iv) not directly prohibit non-solicitation covenants, but a non-solicitation covenant would have been difficult to enforce under the final rules.

The FTC toiled mightily on these rules.  It was reported that the FTC received nearly 27,000 comments on the proposed rules.  According to a letter from the FTC that was sent to House Judiciary Committee Chairman Jim Jordan (R-Ohio), that was obtained by Bloomberg Law under the federal Freedom of Information Act, it was also reported that by late February 2024, the FTC had spent about $500,000 on this rulemaking effort and at that point, 47 agency employees, contractors, advisers and consultants had spent more than 6,000 hours on the rulemaking.

It is also interesting to note that the FTC was not alone in its opposition to restrictive covenants and that the Attorneys General from 18 states wrote a letter in support of the FTC’s proposed rules.

But all of that work was for naught, because after the rule was promulgated in final form, but before it could go into effect on September 5, 2024, as we reported on August 22, those rules were invalidated nationwide by U.S. District Court for the Northern District of Texas In Ryan LLC v. Federal Trade Comm’n, No. 3:24-CV-00986-E (N.D. Tex. Aug. 20, 2024).

Interestingly, the court did not discuss the demise of the Chevron Doctrine directly.  However, the district court cited the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, No. 22-1219 (U.S. June 28, 2024), the decision that overruled the Chevron Doctrine, several times throughout its opinion.

The district court concluded that the text and the structure of the FTC Act did not confer substantive rulemaking authority on the agency with respect to unfair methods of competition and so the FTC exceeded its statutory authority in promulgating the non-compete rule.

In addition, the district court found the FTC’s “lack of evidence” as to why they chose to impose such a sweeping prohibition instead of targeting specific, harmful noncompete covenants, rendered the rule arbitrary and capricious and beyond the scope of the FTC’s statutory authority.

Yes, the district court had the authority to invalidate the rule nationwide.  However, this decision does not affect the FTC’s ability to challenge a restrictive covenant on a case-by-case basis, nor does it affect state law on restrictive covenants.  But since FTC actions are likely to be few and far apart, that leaves the issue of the enforceability of a restrictive covenant to be a matter of state law.

However, the state law on restrictive covenants varies from state to state.  You also need to be aware that many states are currently looking at this issue and reconsidering whether they want restrictive covenants to be enforceable in that state.

Case in point, Pennsylvania just passed a law called “The Fair Contracting for Health Care Practitioners Act” (also known as Act 74) which will go into effect on January 1, 2025.  This new law significantly changes the law in Pennsylvania with regard to the ability of an employer to enforce a restrictive covenant with a physician, CRNA, CRNP or PA.

For example, under this new law, an employer may enforce a noncompete covenant if the length of the noncompete is no more than a year, provided that the health care practitioner was not dismissed by the employer.  So, if the employer ends the employment relationship, the otherwise permitted one-year restrictive covenant is rendered unenforceable.

The new law does include an exception that permits a restrictive covenant in an acquisition.  The law also permits an employer to include a term in its employment agreements that will allow the employer to recover reasonable expenses that are directly attributable to the employee and are accrued within three years prior to separation UNLESS the employee’s separation from employment is due to dismissal by the Employer – apparently even if the dismissal is for cause.  The employer can also recoup costs that are related to relocation, training and establishment of a patient base, regardless of how the employment relationship ends.  But these costs must be amortized over a period of up to five years from the date of separation.  There is also a patient notice requirement that will prohibit a patient non-solicitation term.

As with any law the devil is in the details.  But, since January 1, 2025, will be here before you know it, employers in Pennsylvania need to change past practices in their new employment agreements in order to comply with this new law.  Employers in other states must constantly monitor this issue, as the current trend does not favor the enforcement of a restrictive covenant even if such a covenant may have been enforceable in the past.

If you have a quick question about this issue, please e-mail Henry Casale at hcasale@hortyspringer.com.

If you want to find more information on the demise of the Chevron Doctrine and its effect on Healthcare Compliance, please join Dan Mulholland, Henry Casale and Jerry Safran, Founder and CEO of YouCompli, for our September 30, 2024, webinar that is co-sponsored by HortySpringer, YouCompli and the Health Care Compliance Association, entitled: “What Does the Reversal of the Chevron Doctrine Mean for Healthcare Compliance?” To register, click here. 

 Also be sure to join Dan and Henry in Las Vegas at our Hospital-Physician Contracts and Compliance Clinic, November 14-16, where the FTC rule, Chevron and a whole lot more will be covered. For more information or to register, click here. 

September 5, 2024

Posted on by Courtney Patterson

QUESTION:
An applicant’s background check revealed a recent misdemeanor arrest that the applicant failed to disclose on their application. Are we allowed to ask the applicant questions about the arrest even though the background check indicated that the case has not yet been resolved?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Absolutely!

It is the hospital’s responsibility, through the credentialing and privileging process, to appoint only highly qualified providers.  To do so, the burden should be on the applicant to demonstrate current clinical competence and an ability to practice safely.  Therefore, it is important to keep the burden on the applicant to resolve any doubts related to their qualifications.  This includes answering additional questions and resolving any doubts that may come up in the course of reviewing their application.  An application that has red flags or outstanding questions should not be processed further until the underlying issues are resolved to the satisfaction of the hospital.

An arrest, for instance, is something that would certainly require follow-up.  Specifically, when was the arrest? Why was the applicant arrested? Were any charges brought against the applicant? Why did the applicant leave this information out of their application? These are questions for the applicant to resolve prior to the hospital processing the application further.

It does not matter if the applicant’s criminal case has not yet been resolved.  The hospital has the ability to ask those questions it feels need to be answered, and for documentation to support those answers, in order to properly resolve any questions about the applicant, and in this case their arrest.

August 29, 2024

Posted on by Courtney Patterson

QUESTION:
Our Credentials Committee is reviewing a reappointment application for a medical staff member who has had some pretty significant behavioral issues over the past year.  We want to recommend that she be reappointed for less than a full two-year appointment term to reinforce the need to change her behavior, but some members of the committee think that it would be an “adverse recommendation” and give her the right to a hearing. Is it?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
The short answer is that whether or not a recommendation to grant appointment for less than two years (or three years for those hospitals that have made the switch to longer terms) is governed solely by the existing medical staff bylaws.  If your bylaws do not guarantee two-year appointment terms, and the grant of appointment for less than two years is not specifically listed as one of the things that gives an individual the right to request a hearing in the pertinent section of the bylaws, then no, it would not be considered adverse.

Arriving at this conclusion can be more challenging if, rather than listing specific, clear recommendations that trigger the right to a hearing, the bylaws instead provide that “any recommendation that adversely affects an applicant or member” gives the right to request a hearing.  Whether the hospital views a less than two-year appointment term as adversely affecting an individual or not could very well differ from the viewpoint of the medical staff member at issue.

Bottom line, medical staff bylaws should affirmatively state that medical staff appointment will be granted for “not more” than two (or three) years and should give the Credentials Committee and the Medical Executive Committee the clear ability to grant appointment terms of less than the relevant time period – without concerns that it constitutes an adverse recommendation.  A short-term appointment can be a helpful tool in the exact situation posed above – when medical staff leaders are trying to get someone’s attention, emphasizing the need to make changes during a shortened time period of more focused review.  It can also be helpful when a medical staff member is in the midst of a review process that will not be fully concluded before the current term expires, giving the ability to reappoint that individual on a short-term basis, pending the outcome of the relevant review process.

If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.

August 15, 2024

Posted on by Courtney Patterson

QUESTION:
We are in a mid-sized city with one other competing hospital.  Even though this other hospital appears to have a similar composition of specialists (at least on paper), it keeps transferring emergency patients to us claiming it doesn’t have anyone on call in certain specialties.  Our physicians are starting to feel like they’re on call for the other hospital as well as our own. Do we have to accept these transfers?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Under EMTALA, a receiving hospital has the right to refuse a request for a “lateral” transfer.  A lateral transfer occurs where the same services are provided at both the sending hospital and the 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.

However, if the receiving hospital has “specialized capabilities,” and also has the capacity to stabilize the patient’s emergency medical condition, then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.”  However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.”  Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient.  This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).

This requirement has put hospitals in a bind, and while it may be patently unfair, refusing the transfer could create its own host of problems.  As such, we recommend accepting the transfer to avoid having patients get caught in the middle.  From there, you could consider how best to address the situation going forward.

If you have a quick question about this, e-mail Ian Donaldson at IDonaldson@hortyspringer.com.