Question Of The Week

December 15, 2022

Posted on by Courtney Patterson

QUESTION:

The Joint Commission’s November 4 FAQ, which stated that the time frame for reappointment/re-privileging would be expanded from two years to three years, noted that additional information would be published at a later date.  Is there any update?  Did TJC make this official?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes, TJC made it official.  TJC issued Prepublication Standards for the Hospital Accreditation Program, among others.  The Prepublication Standards revised the Elements of Performance as follows:

MS.06.01.07, Element of Performance 9:  “9.  Privileges are granted for a period not to exceed two years three years or for the period required by law and regulation if shorter.”

MS.07.01.01, Element of Performance 3:  “3.  The organized medical staff uses the criteria in appointing members to the medical staff and appointment does not exceed a period of two years three years or the period required by law and regulation if shorter.”

TJC stated that these Prepublication Standards are “Effective Immediately; February 19, 2023 Release.”

As noted in the November 17 Question of the Week, which commented on the November 4 FAQ, “you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the [November 4 FAQ] states, the appointment term may be shorter than three years ‘if required by law or regulation.’  In other words, state hospital law or regulation will control so you want to be sure to check that first.”

Also, stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

December 1, 2022

Posted on by Courtney Patterson

QUESTION:
A member of our Medical Staff recently disclosed to the Chief of Staff that they have a prescription to use medical marijuana. How should we handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Rest assured, you are not the only ones that have faced this situation! As the number of states that legalize both medical and recreational marijuana continues to grow, questions related to marijuana use are becoming increasingly common. In general, there are three main things to know before tackling a situation like this:

  1. Marijuana is still illegal at the federal level. Because of that, users of medical marijuana are not entitled to federal protections like those offered by the Americans with Disabilities Act. Instead, all protections and prohibitions are regulated by states, state actors (i.e., a state Board of Medicine), and other committees commissioned by the state.
  1. Every state is handling medical marijuana use and the workplace a little differently. Some states have provided additional protections by doing things like prohibiting discrimination against users of medical marijuana or mandating that employers provide reasonable accommodations for such users. Other states have taken the stance that practitioners should refrain from using medical marijuana, and some states have not addressed the issue at all.
  1. No state requires employers to permit the use of medical marijuana during work or on work property.

With the above in mind, we recommend that hospitals treat this situation like any other where they receive notice that a practitioner may be experiencing a health problem.  The matter should be reviewed under the Practitioner Health Policy or other applicable policy to determine if the underlying cause for the use of medical marijuana affects the practitioner’s ability to safely treat patients. Also, check with counsel to see how your state is addressing this issue.

November 17, 2022

Posted on by Courtney Patterson

QUESTION:
As we can see from The Joint Commission at Work snippet, it looks like The Joint Commission expanded the appointment term for practitioners to three years from two years.  What should we consider if we are interested in moving to three-year appointment terms?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Per the November 4, 2022 FAQ “How are reappointment/re-privileging dates determined?” The Joint Commission instructed that “[r]eappointment/re-privileging is due no later than three years from the same date from the previous appointment or reappointment, or for a period required by law or regulation if shorter” (emphasis added).  The FAQ notes that “[a]dditional information will be published in the December 2022 Perspectives Newsletter regarding a change to the reprivileging/reappointment time frame.”  Thus, it is not clear if this rule has been finalized, especially since the standards available continue to require a two-year appointment period.  Nonetheless, before you move in the direction of allowing a longer appointment term, you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the FAQ above states, the appointment term may be shorter than three years “if required by law or regulation.”  In other words, state hospital law or regulation will control so you want to be sure to check that first.  Also, when The Joint Commission implemented the Ongoing Professional Practice Evaluation (“OPPE”) standard, they considered doing away with the reappointment process.  The Joint Commission’s rationale was that a well‑functioning OPPE process, which requires “ongoing” monitoring of clinical care and other factors, would render reappointment unnecessary.  The Joint Commission never did away with the reappointment process.  However, you should evaluate whether you have a well-functioning OPPE process that catches issues and trends quickly, allowing you to act, intervene, and protect patients.  If not, it may be wise to maintain the shorter reappointment term of two years to take a closer look at practitioners’ clinical practice and professionalism at the Hospital.

Stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

November 10, 2022

Posted on by Courtney Patterson

QUESTION:
I hear the new Medicare Hospital Outpatient Payment Rules that were just published by CMS last week created a new breed of cat called a “Rural Emergency Hospital.”  What’s that?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Rural Emergency Hospitals (“REHs”) are a new provider type established by the Consolidated Appropriations Act, 2021 to address the growing concern over closures of rural hospitals.  The REH designation provides an opportunity for Critical Access Hospitals (“CAHs”) and certain rural hospitals to avert potential closure and continue to provide essential services for the communities they serve.  Conversion to an REH allows the facility to continue providing emergency services, observation care, and, if elected by the REH, additional medical and health outpatient services, that do not exceed an annual per patient average of 24 hours.  The implementation of this new provider type, effective January 1, 2023, is designed to promote equity in health care for those living in rural communities by facilitating access to needed services.

For more information, see the CMS information page here.

November 3, 2022

Posted on by Courtney Patterson

QUESTION:
I think that I am beginning to understand the No Surprises Act (“NSA”).  But try as I might, I still have trouble understanding how the amount that we will be paid if we provide care to a person covered by the NSA will be determined.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The Qualified Payment Amount (“QPA”) is the key to understanding the payment terms of the NSA.  The NSA defines the QPA for a given item or service as generally the median contracted rate on January 31, 2019 for the same or similar item or service, increased for inflation.

Simple right?  Not really.  As you can imagine, the devil is in the details as to how the QPA is determined.  Fortunately, in June 2022, CMS published a guide with the straightforward title, “Qualifying Payment Amount Calculation Methodology,” that does a pretty good job of explaining how to calculate the QPA.  You can access that guide at:  https://www.cms.gov/files/document/caaqualifying-payment-amount-calculation-methodology.pdf

This Guide addresses the terms that are defined in the NSA that relate to the QPA.  For example, to calculate QPA for items/services furnished during 2022, you need to increase the median contracted rate as of January 31, 2019 by the percentage increase in the consumer price index for all urban consumers (U.S. city average) (“CPI–U”) over 2019, the percentage increase over 2020, and the percentage increase over 2021.  Then, to calculate QPA for items/services furnished during 2023 or a subsequent year, the QPA for 2022 is then adjusted annually by the annual increase in the CPI–U.

Not exciting, but this is as practical a guide as you will find.  So, keep it handy when the inevitable payment dispute arises and you want to make sure that the insurer has determined a QPA in a manner required by the regulations.

If you believe that there are factors that are not included in the QPA that are relevant to the items or services that you provided to the patient who is the subject of an NSA dispute, then you should also be aware of the NSA Dispute Resolution Regulations that were issued on August 19, 2022, that are intended to make certain medical claims payment processes more transparent for providers and clarify the process for providers and health insurance companies to resolve their disputes.  

There is not much time left but if you want to learn more about the NSA, telemedicine, the Anti-Kickback Statute, the Stark law, the January 21, 2021 amendments to the regulations to those laws, the False Claims Act, and much more, we invite you to join Henry Casale, Dan Mulholland, and Mary Paterni in our “Hospital-Physician Contracts and Compliance Clinic” that will be held in Las Vegas, Nevada, from November 17-19, 2022.  If you can’t catch us then, be sure to check the HortySpringer website for more information about new and upcoming opportunities on these topics.

October 20, 2022

Posted on by Courtney Patterson

QUESTION:
We are currently updating our informed consent forms. Can you remind us of what information should be included on these forms

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Informed consent is critical to providing quality care, so I commend your efforts to review your forms. In almost every state, the treating provider is responsible for explaining to the patient ˗ in such a way that the patient can understand ˗ (1) the item or service that will be provided, (2) the benefits and risks associated with that care, and (3) any alternatives. In some states, failure to obtain a patient’s informed consent may render the treating provider liable for any injury that results from the rendered care, so be sure to check your state law!

Under the Medicare Conditions of Participation, the medical record must contain documentation of the patient’s informed consent for certain treatments and procedures. The Medicare Conditions of Participation Guidelines offer a detailed explanation of what a properly executed informed consent form should look like. When revising your informed consent forms, be sure that they have at least the following elements:

  • The name of the facility where the care is going to take place;
  • The name of the procedure or treatment for which consent is being given;
  • A statement that the procedure or treatment, including the anticipated benefits and material risks, and alternative treatments, was explained to the patient or the patient’s legal representative;
  • The signature of the patient or their legal representative; and
  • The date and time the informed consent form is signed by the patient or their legal representative.

CMS also states that a well-designed informed consent form may also include:

  • The name of the provider who conducted the informed consent discussion;
  • Date, time, and signature of the person witnessing the patient or their legal representative signing the consent form;
  • An indication or listing of the benefits and material risks of the procedure or treatment discussed; and
  • A statement that physicians and providers who are not physicians, other than the treating provider, including residents, will be involved in the care of the patient and will perform important parts of the procedure or treatment, as allowed under state law and regulations, in accordance with the clinical privileges granted and/or scope of practice.

If in doubt, reach out to Mary Paterni to review whether your informed consent forms comply with state and federal law.

October 13, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

October 6, 2022

Posted on by Courtney Patterson

QUESTION:
Getting attendance at our Medical Staff department and committee meetings has always been a challenge.  Being able to participate remotely has helped somewhat, but it has also opened a whole new set of problems (like members participating on a confidential committee discussion while they shop at Target!).  How can we balance the benefits of using Zoom and Teams with some of the inherent risks that come along with using those remote options?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While we too have benefited from the ability to interact with Hospitals and Medical Staffs leaders via Zoom and Teams during the pandemic, maintaining confidentiality, privacy and security can be a problem during virtual meetings.  This is especially true if any sensitive information will be discussed or shared.

Like traditional, in-person meetings, it can be helpful for the chair to begin each meeting with a reminder of the importance of confidentiality when sensitive issues are being discussed.  It is also important to remind participants to only join in from a secure location and that they are required to maintain compliance with all applicable policies on confidentiality, data privacy, electronic communications, and security no matter where they call in from.  A “virtual meeting” policy can be a helpful way to spell out these guidelines.

Consider joining us for our November Grand Rounds “Running Effective Meetings in a Virtual World,” where Ian Donaldson and Nick Calabrese will discuss how to make your meetings more efficient, both in-person and remotely, and some of the challenges Medical Staff leaders face regarding confidentiality in a virtual space.

September 29, 2022

Posted on by Courtney Patterson

QUESTION:
We are in the process of credentialing a new applicant.  We spotted some red flags pretty early on.  The Chair of the Credentials Committee knows physicians where the applicant trained.  Those physicians are not included by the applicant on the application.  Can the Credentials Committee Chair still call these physicians or are we limited to talking to the references the applicant listed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  When it comes to gathering information about applicants for appointment, we like to say, “The sky is the limit.”  This means that you are permitted to obtain information from anyone who might have information that is relevant to the applicant’s qualifications.  The permission to obtain information is probably reflected in your Bylaws or Credentials Policy.  For instance, we include the following language in our documents:

The individual authorizes the Hospital, Medical Staff leaders, and their representatives to consult with any third party who may have information relating to the individual’s professional competence or conduct or any other matter relating to their qualifications for initial or continued appointment, and to obtain communications, reports, records, and other documents of third parties that may be relevant to such questions.  The individual also specifically authorizes third parties to release this information to the Hospital and its authorized representatives upon request.

This language protects both your hospital for asking for information and the person who has the information for providing it to you.  As added protection, there should also be similar information in the application form itself.  So, the bottom line is that you are not restricted from gathering information from individuals who the applicant has identified in the application.

The one area where you want to be careful is if you are calling a current employer.  The applicant may not have given notice of their intention to leave.  Usually, we recommend holding off on asking for a reference from the current employer until a little later in the process.  But, ultimately, you can ask the employer for a reference and, as a best practice, follow up with a phone call as well.

Looking for other guidance on difficult credentialing issues, why not join us in Las Vegas on November 17-19 for Credentialing for Excellence!

September 22, 2022

Posted on by Courtney Patterson

QUESTION:
A physician recently resigned employment with a group that’s affiliated with the hospital.  Is there anything we should consider with respect to the physician’s Medical Staff appointment and privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes, you’ll want to evaluate whether the physician is still eligible for continued appointment and privileges under the Medical Staff Credentials Policy (or Bylaws).

Malpractice insurance is often provided through employers, so physicians who resign their employment often lose their malpractice coverage.  Most Medical Staff Credentials Policies state that such insurance is a threshold eligibility criterion for appointment and privileges and that physicians will “automatically relinquish” their privileges if they lose their insurance.  (If your Credentials Policy doesn’t say this, it should!)  So, one step is to determine if the physician has acquired new malpractice insurance.

Similarly, Credentials Policies often require physicians to have acceptable coverage arrangements to be eligible for appointment and privileges.  Resignation from a group may mean that those coverage arrangements are no longer in place, so the existence of appropriate coverage should be confirmed with the physician.

Finally, all the other eligibility criteria in the Credentials Policy should be reviewed to determine if the physician’s resignation from employment will cause the physician to be ineligible.  For example, some Credentials Policies require the physician to maintain an office within the hospital’s service area as a condition of being granted appointment and privileges.

On the employment side, a physician’s employment contract may contain an “incident and coterminous” provision saying that the physician’s privileges will automatically be resigned upon termination of the contract.  Similarly, the contract may include a restrictive covenant prohibiting the physician from practicing in a defined geographic area for a certain amount of time after the contract ends.  However, the employer (not the Medical Staff) is responsible for enforcing such contractual provisions.