Question Of The Week

July 7, 2022

Posted on by Courtney Patterson

QUESTION:
We have several clinical departments that either have weak chairs or chairs who are there entirely by default because “it was their turn!”  These individuals are relied upon to perform a really important role. How can we get stronger leaders interested?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In many hospitals, it has been traditional to rotate the department chair position so that everyone in the department gets his or her turn. However, not every physician has an aptitude for, or interest in, medical staff leadership. And to be perfectly honest, many do not even know what the role will require of them before they assume the position.  One answer may be to develop stronger qualifications for serving in medical staff leadership roles, including officers and department chairs, and to provide compensation for department chairs.  Another question to ask is if there are too many departments. Consider including guidelines in the governance documents that provide factors for the Medical Executive Committee to consider when deciding whether to eliminate (or establish) clinical departments that clearly explain the functions that the individuals within such a department have to fulfill. On that basis, you might consider consolidating departments or doing what many hospitals have done, which is moving to a service line model. By having fewer positions to fill, you then have a larger pool of qualified people who want to serve!

June 30, 2022

Posted on by Courtney Patterson

QUESTION:
A doctor on our medical staff recently wrote an inappropriate comment to a coder after she requested that he provide clarification to some medical record documentation.  The comment included profanity, and did not answer the coder’s question, but it was not otherwise aggressive or insulting.

As Chief of Staff, my inclination is to simply send the practitioner a “knock it off” email and then leave it alone.  It was inappropriate, sure, but why make a mountain out of a molehill?

Is this consistent with good peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

Medical Staff leaders have a lot of flexibility to determine those interventions that are most appropriate for a given situation.  With that said, there are some principles that tend to promote “good” peer review and which we would suggest you consider as you decide to proceed:

  • First, there is value in keeping a good record of everything that is reviewed through the peer review process (whether informal or formal peer review efforts). So, if you have not already done so, we recommend that you refer this matter to the Hospital personnel who support the peer review process (often the Medical Staff Services director or a dedicated quality/professional practice evaluation professional) and ask that they keep a record of this reported concern in their databases.  Further, a copy of any written report of this matter should be kept in the practitioner’s confidential file.
  • Second, it is a good idea to pull the practitioner’s peer review history before you decide how to review and manage this incident. If this practitioner has a history of other professionalism issues, you might choose to pursue the matter differently.  So, while you’re talking to the Medical Staff Office/PPE professionals about logging in the new reported concern, it is a good idea to also ask that the practitioner’s peer review history be pulled so that you can review any relevant information.
  • Third, before you finalize your decision on how to proceed, please make sure you consult the Medical Staff Bylaws and relevant policies (in this type of case, that will probably be the Medical Staff Credentials Policy, Medical Staff Professionalism Policy, and Rules and Regulations) to identify the specific rule(s) that have been violated and, additionally, identify whether your policies call for the matter to be referred to a specific individual or body for a fact inquiry and further management. While many Medical Staff Bylaws and policies give the Chief of Staff the authority/discretion to manage low-lying peer review matters collegially and informally, some dictate that all reported concerns of professionalism will immediately be referred to a particular individual or body (e.g., the Leadership Council or CMO).
  • Fourth, if you find that your policies give you the discretion to manage the matter collegially and informally, understand that there is value in a peer review process that is methodical. The general, at-large Medical Staff will feel more confident in the peer review system if they observe consistency and feel that the process gives the same treatment to every practitioner.  This does not mean that your Bylaws and policies should not give Medical Staff leaders discretion to tailor the response to match the conduct at issue.  But, be sure that flexibility is not taken to the extreme.  It would undermine trust in the process if one practitioner were given a formal, written reprimand for the type of note you are dealing with, while another was simply told in passing to “knock it off.”  So, as you move forward, consider – Is the approach that you have in mind consistent with how similar issues have been handled in the past?
  • Fifth, many modern peer review policies (including Medical Staff Professionalism Policies) give leaders the discretion to manage low level issues through informal “mentoring” efforts (or other similar efforts, sometimes termed “collegial conversations,” “cup of coffee conversations,” etc.). Acknowledging that these types of conversations happen – and are part of our peer review process – helps to ensure that they are protected and avoids claims that these efforts are being conducted in bad faith, outside the process.  Informal efforts need not be verbal, if you think that a written communication (e.g., email or a brief letter) would be better.  Letters of guidance, letters of education, and other similar writings (e.g., letters of awareness) are often used to serve a similar purpose – to inform a practitioner about an opportunity for improvement without, as you put it, “making a mountain out of a molehill.”  The tone is often direct and to the point, setting forth the need to comply with the relevant standard going forward, but without getting too confrontational.  For informal communications such as this, there is usually no response from the practitioner required or expected.

Even though these communications are informal, a copy should be placed in the practitioner’s confidential file.  We recommend letting the practitioner know – and inviting him or her to respond if he or she wishes to do so (in which case you should keep the response in the file, too).

  • Finally, most modern “good” peer review processes have built in oversight. So, whenever a case is managed by a leader or leadership body (e.g., a committee), the results should be reported to a central source (either through recording the disposition in an electronic system or reporting the outcome to an individual, such as the PPE professional) so that data can be tracked and studied regarding all cases that are identified for peer review, who is handling them, how they are being handled, etc.  This not only helps to promote consistency in the process, but also helps to avoid reported concerns falling through the cracks and not being addressed.

June 23, 2022

Posted on by Courtney Patterson

QUESTION:
We’re updating our process for peer review of clinical concerns. We want it to be more effective and less feared by Medical Staff members. Any tips?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  Here are a few:

  1. Create a Multi-Specialty Committee. Create a multi-specialty committee that works with practitioners on a voluntary basis to address clinical concerns.  If the multi-specialty committee believes there’s an opportunity for improvement with the care provided by a practitioner, the committee presents an improvement plan to the practitioner and asks the individual to voluntarily participate.  If the practitioner disagrees with the need for the improvement plan, the matter would be referred to the Medical Executive Committee for its independent review under the Medical Staff Bylaws/Credentials Policy.  This approach allows the multi-specialty committee to remain a supportive committee with no disciplinary authority, while the MEC is a second layer of review when needed.
  1. Obtain Specialty Expertise. Identify small committees or individuals (depending on state law) for each specialty that provide the specialty expertise that informs the decisions of the multi-specialty committee.  In larger hospitals with more volume, these committees/individuals can be authorized to take certain performance improvement actions (such as sending educational letters or engaging in collegial counseling discussions) while more significant concerns are sent to the multi-specialty committee for its review.
  1. Get Input from the Practitioner. A process will be perceived as more fair and credible if the practitioner under review has been provided notice of any concerns and an opportunity to provide input about those issues.  No performance improvement action should occur until the practitioner’s input has been obtained.
  1. Adopt Mechanisms to Identify “Lessons Learned” and “System/Process Issues.” Peer review should help everyone get better.  Case review forms and committee minutes should specifically ask if a review identified a lesson that would be of value to others in the specialty, or a system/process issue that needs to be fixed.  There should be mechanisms to ensure that such lessons learned or system/process issues are shared with the appropriate individuals or committees for follow-up action, and the multi-specialty committee should keep these items on its agenda until it receives word that they have been addressed.
  1. Stop Scoring. Rather than asking reviewers to assign a numerical value or category to a case, the reviewer should simply assess whether there was a concern with the care provided.  If so, how could that concern be addressed?  Scoring causes practitioners to be defensive and diverts energy away from what really matters in the review process (i.e., how to help a practitioner improve).
  1. Words Matter! The term “peer review” is viewed negatively by most practitioners.  Using new terminology will help to emphasize that a new process has been created that is educational and not focused on restrictions of privileges.  Consider creating a “Committee for Professional Enhancement” or “Performance Improvement Committee” rather than a more traditional “Peer Review Committee.”  Similarly, refer to the process as the “professional practice evaluation” process rather than “peer review” process.

For more information about creating an effective peer review process for clinical concerns, please join us this season at The Peer Review Clinic in Las Vegas, Orlando, or Nashville!

June 16, 2022

Posted on by Courtney Patterson

QUESTION:
We would like to learn more information about a new statement of policy issued recently by our State Medical Board.  Do State Medical Boards have to respond to Freedom of Information Act (“FOIA”) requests?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
It depends.  The federal FOIA provides public access to all federal agency records not covered by an exception or exclusion.  According to 5 U.S.C.A. § 552, FOIA requests apply only to federal agencies, not to records held by Congress, the courts, or by state or local government agencies.  Since State Medical Boards are functions of state governments, they fall outside the limits of FOIA requests.

However, all states have implemented their own FOIA-like statutes that parallel the federal FOIA and allow access to information related to state agencies.  Before you can definitively determine whether a State Medical Board would have to respond to a state FOIA-like request, you need to consider any possible exceptions the state may have carved out for health professional related agencies.

For example, Oregon has developed its own FOIA request system, but if an individual wants to access the public records of a health professional regulatory or health licensing board that have been deemed confidential or exempt from public disclosure, they must demonstrate to the Attorney General, “by clear and convincing evidence that the public interest in disclosure outweighs,” the public

June 9, 2022

Posted on by Courtney Patterson

QUESTION:
This past weekend, a patient presented to the emergency room with an injury that required immediate surgery.  Our hospital was out of the patient’s network, so when it was determined that the patient was stable, we offered them the option to be safely transferred by ambulance (per doctor’s orders) to a hospital that is down the street and in-network.  However, the patient declined this offer and chose to remain at our hospital for the duration of their care.  Can we give the patient a written notice and get them to consent to waive their protection under the No Surprises Act, which would allow us to balance bill them for any subsequent post-stabilization services during their stay?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
At this point, the answer is no.  Under the No Surprises Act (“NSA”), the hospital is prohibited from balance billing patients for emergency services even if the patient signs a consent waiving their protections under the NSA for such services.  Generally, post-stabilization services are also considered emergency services under these new rules.

However, in certain circumstances, an out-of-network provider or facility may provide notice to and get written consent from a patient that would waive their balance billing protections for post-stabilization services.  For this to occur, the following requirements must be met:

(1)        the patient is stable enough to travel using nonemergency medical transport to an available in-network provider/facility and that provider/facility is within reasonable traveling distance considering the patient’s condition;

(2)        the patient or their representative is in a condition where they can receive information and provide informed consent;

(3)        the hospital provides written notice and obtains written consent from the patient to waive their balance billing protections; and

(4)        the hospital is in compliance with all relevant state laws.

At this point, the patient requires medical transportation via ambulance in order to travel.  As such, the patient cannot receive notice or give consent to waive their balance billing protections under the NSA.  The hospital is prohibited from balance billing the patient for any post-stabilization services provided to the patient during their stay so long as that requirement is not met.  If, however, there comes a time when the patient can be safely transferred to another hospital through means other than medical transport, but the patient wishes to remain at your hospital, then you may consider providing notice and getting written consent from the patient to waive their protections so long all other notice and consent requirements mentioned above are met.

May 26, 2022

Posted on by Courtney Patterson

QUESTION:
I understand that the Surprise Billing case that was discussed in this week’s HLE arose before the No Surprises Act (“NSA”) went into effect.  How would the NSA have affected that case?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
While the case of the $229,112.13 surprise bill arose before the January 1, 2022 effective date of the NSA, it is interesting to see how the facts in that case would be affected if they happened after January 1, 2022.

The case does not state whether the patient’s surgery was emergency or elective.  However, the fact that the hospital and the patient were able to agree that the amount the patient would owe the hospital for that surgery was to be $1,336.90, leads us to assume that it was an elective surgery.  Based on that assumption, let’s explore what would happen if the same set of facts were to occur after the NSA went into effect.

First, there was a mix-up as to the patient’s insurance coverage.  Apparently, the hospital first thought that the patient was in-network and that was the basis for the $1,336.90 agreed-upon price.  It was only after the surgery was completed that the hospital realized that the patient was out-of-network and that based on the hospital’s charge master the hospital claimed that the patient owed the hospital $229,112.13.

When the patient refused to pay this amount, the hospital sued.  The jury not only sided with the patient, but it also decided that the agreed-upon price was too high and determined that the amount that the patient owed the hospital was only $766.74.  You should be aware that the appellate court disagreed with the trial court and reversed the jury verdict, reinstating the hospital’s demand.  However, the Colorado Supreme court reversed the appellate court and reinstated the jury’s verdict.  So, after being forced to expend legal fees and the anxiety that resulted from the appellate court decision, the patient’s final amount due was $766.74.

Under the NSA, the result would be very different.  Again, assuming this was a non-emergency surgery, the hospital would have been required to make an affirmative determination before the surgery whether the patient was in-network or out-of-network.  If the patient was out-of-network, then the patient would be considered uninsured (or self-pay).   At this point, the hospital is required to provide the self-pay patient with a good faith estimate that includes a list of all of the items or services that are reasonably expected to be furnished in conjunction with the surgery and the cost of that care.

When the good faith estimate must be provided depends on when the surgery was scheduled.  If the surgery is scheduled at least three business days before the date of surgery, then the good faith estimate must be provided no later than one business day after the date of scheduling.  If the surgery is scheduled at least 10 business days before the date of surgery, then the good faith estimate must be provided no later than three business days after the date of scheduling.  If a good faith estimate is requested by the self-pay patient, then the good faith estimate must be provided no later than three business days after the date of the request.  In any event, the patient must be made aware of the cost BEFORE the surgery – no longer will a patient wake up from surgery only to be informed that their bill would be much greater than the good faith estimate.

In addition, under the NSA, a patient who is involved in a dispute with a provider over the cost of the care provided pursuant to the good faith estimate, is not required to go to court or incur the costs of litigation.  If the difference between the amount of the good faith estimate, and the actual bill is more than $400, then the NSA entitles the patient to arbitrate the dispute.  This result is best illustrated by the following question and answer taken for CMS’s Center for Consumer Information & Insurance Oversight presentation on the NSA:

Tonya is a 40-year-old female with a long history of right knee pain. She does not have any form of health insurance. Tonya schedules an appointment with her orthopedist to receive a cortisone injection in her knee.  Upon scheduling the appointment, her orthopedist sends her a good faith estimate.  The good faith estimate lists the total expected charges of $300 for the procedure.  Tonya undergoes the injection and subsequently receives a bill from the orthopedist.  The total billed charge is $850.

Would Tonya be eligible to pursue the PPDR (Arbitration) process?

ANSWER:  Yes, Tonya would be eligible to pursue the PPDR (Arbitration) process. Tonya is uninsured, and the total billed charge is considered substantially in excess of the good faith estimate, since the difference between the total expected and total billed charges is greater than or equal to $400. Under the NSA, in order to be eligible to pursue the PPDR (Arbitration) process, an individual must be considered uninsured or self-pay, the total billed charges by the particular convening provider, convening facility, co-provider, or co‑facility, must be substantially in excess ( > $400) of the total expected charges for that specific provider or facility listed in the good faith estimate, and the date of the bill must be within 120 days.

Confirmation of insurance status before the surgery, advance notice of all services, a good faith estimate of all costs to the self-insured patient which must be reasonable charges not an inflated charge based on the hospital’s charge master, and the right to arbitration if there is more than a $400 difference between the patient’s bill and the good faith estimate – yes, the case in this week’s HLE would have turned out very differently once the NSA went into effect on January 1, 2022.

May 19, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital is negotiating with health insurers to perform delegated credentialing on their behalf.  The insurers are telling us that we cannot have a hearing officer option for conducting a hearing when providers are subject to certain adverse actions, such as termination of participation on a panel. Is this correct?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes. This is how health insurers interested in delegating credentialing functions to health care providers interpret the Medicare Advantage rules for provider participation.  According to those rules, a health insurer involved in the Medicare Advantage program has to give physicians certain rights when it suspends or terminates the physician’s participation agreement.  Among those rights are the right to receive notice of the reasons for the action and the right to appeal that action. The rules go on to talk about a hearing panel but only state that the insurer (or insurer’s delegate) must ensure that the majority of the hearing panel members are peers of the affected physician.

Now you could follow the constitutional principle of English law that instructs that “everything that is not forbidden is permitted” and go ahead and draft your delegated credentialing policies so that they allow for the hearing officer alternative to using a hearing panel.  However, this may create headaches down the road since health insurers have to perform a pre-delegation audit of your policies and procedures before delegating credentialing and will most likely require a revision to your policies if they permit the hearing officer option. Some providers, such as hospitals, use their existing medical staff credentialing policies and procedures to build off of to put delegated credentialing processes in place. To the extent that a hospital is interested in doing so and its existing Credentials Policy allows for the hearing officer option, it can simply revise its Credentials Policy to indicate that the option is not available when a hearing is offered for delegated credentialing purposes (as opposed to medical staff purposes).

May 12, 2022

Posted on by Courtney Patterson

QUESTION:
Due to the long time needed for a physician with behavioral complaints to go through the collegial efforts and progressive steps (e.g., collegial meetings, letters, performance improvement plans, etc.), staff are often left with the impression that Hospital and Medical Staff Leaders are not addressing the problem and “the physician is getting away with his bad behavior again.”  This destroys morale and it makes everyone reluctant to report concerns.  Do you have suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  In our experience, nursing and other hospital staff are typically reluctant to report concerns, especially about behavior.  We also know that the reports that get filed are typically “the tip of the iceberg.”  This is supported by The Joint Commission’s Sentinel Event on Behaviors that Undermine a Culture of Safety, which was first published in July 2008 and was updated in June 2021.

It is even harder for staff to file a report if they think they are being ignored or if nothing has been done about reported concerns in the past.  At the same time, addressing behavioral concerns (just like addressing clinical or health concerns) is part of the peer review process and is confidential and privileged.  That doesn’t mean that leaders can’t get back to the person who filed the report.  In fact, we recommend, as a “best practice,” that leaders try to always follow-up with a person who has filed the report or complaint.

The follow-up is important because you will often get additional meaningful information when you talk with the person who filed the report.  For instance, you might learn that the complained of behavior “happens all the time” or that others have been subject to the same behavior by the same physician.  You might also learn the names of additional people who witnessed the incident or who have relevant information.  Any new information should also be documented.

But beyond getting additional information, talking to the person who reported the concern is important because it is your chance to reassure the person that they have been heard.  You can thank the person for coming forward and remind them that documentation is necessary so that action can be taken.  You can also let them know their report has been reviewed by Medical Staff Leadership and that appropriate action will be taken.

You can also let the person know that retaliation of any sort against them for filing a report will not be tolerated and they should report immediately if they think they are being retaliated against in any way.  It’s also a good idea to let them know that their identity has not been disclosed.

Additionally, you can tell the person who filed the report that the Medical Staff deals with concerns about behavior as part of its peer review process and that the process is confidential and privileged according to hospital policy and state law.  You can explain that you are not at liberty to share the results of the peer review process with them, but you can reassure them again that they have been heard and that action is being taken.

You may want to follow-up with a note or e-mail.  This will reinforce the information you provided and it will also give you a chance to remind the person of the important role that they play in addressing concerns (it is difficult to correct a problem without a written report or complaint) and the need for them to continue to report incidents in the future.

May 5, 2022

Posted on by Courtney Patterson

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.

April 28, 2022

Posted on by Courtney Patterson

QUESTION:
We are preparing for a medical staff hearing and a member of our Medical Executive Committee asked why our Medical Staff Bylaws say that the CEO appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff.  We are trying to figure out whether this was a typo or not.  Should the Chief of Staff appoint the panel?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No – that’s not a typo!  While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing.  The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee that led to the hearing.  When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, it makes it easy for the argument to be made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process.  The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.