Question Of The Week

May 23, 2019

Posted on by hortyspringer

QUESTION:        We have a group practice that is affiliated with our health system.  The group practice employs physicians and advanced practice clinicians.  Two months ago, one of the employed physicians was given notice that the group was not going to renew his contract and his employment would expire in 90 days.  The contract provides that when his employment expires, his appointment and privileges at all health system hospitals expires too.

Last night, the Medical Executive Committee at one of our system hospitals started an investigation into complaints about this physician’s behavior.  If the investigation is not completed by the time his contract expires are we required to report this to the National Practitioner Data Bank as a resignation while under an investigation?
ANSWER:            The answer to this question is no.  You would not have to file a report with the Data Bank because the expiration of appointment and privileges was triggered by an expiration in his employment contract.   There is helpful guidance on this issue in the NPDB Guidebook.  In a related scenario, outlined in the Q&A: Reporting Clinical Privileges Actions section of the Guidebook, it noted that a report would not have to be submitted: “The termination was not a result of a professional review action and, therefore, was not reportable. It does not matter that the employment termination, which was a result of the hospital’s employment termination process, automatically resulted in the end of the practitioner’s clinical privileges.”

While your situation is a little different, the same principle should apply.  The physician did not resign during, or in exchange for not conducting, an investigation.  Rather, the physician’s appointment and privileges automatically expired as a result of the contract expiration.  The controlling act was the expiration of the physician’s contract which affected his appointment and privileges.

As a practical aside, we recommend that serious consideration be given to when an investigation should be commenced.  The Medical Executive Committee should only commence an investigation when it has exhausted collegial, progressive steps or if there are extreme circumstances, such as a pending precautionary suspension.

If the subject physician is employed by a system-affiliated group, there is nothing wrong with considering the physician’s employment status prior to the Medical Executive Committee commencing a formal investigation.  Generally, in these situations, when a physician’s employment is set to expire or be terminated, there would be no need for a formal investigation.  The problem behavior should not be ignored but less formal steps, such as the implementation of a performance improvement plan for behavior, could be taken in the interim to facilitate the smooth and orderly operation of the hospital.  A formal investigation is not likely the best use of your time or resources.

May 16, 2019

Posted on by hortyspringer

QUESTION:        A registrant at our recent Complete Course for Medical Staff Leaders in New Orleans in April asked:  Can we call a past Department Chief, as you did in the case study, without the applicant’s specific consent?

ANSWER:          Yes, you can and should! Your Bylaws or Credentials Policy, and application forms, should contain an authorization, as a condition to consideration of the application, to obtain full information about an applicant’s qualifications, including education, training, practice experience, current competence, and professionalism from all educational institutions and organizations where the candidate has practiced.  You should contact department chiefs at hospitals where an applicant has most recently practiced.  The applicant may not have listed recent past department chief(s) as references, but you are not limited to contacting those listed as references by the applicant.  Those providing information should be released by the applicant to the fullest extent permitted by law.

May 9, 2019

Posted on by hortyspringer

QUESTION:        Our medical staff is considering unifying with other medical staffs within our system to become one unified and integrated medical staff.  What does this entail, what are the legal requirements and what are the advantages and disadvantages for our hospital?

 

ANSWER:            A multi-hospital system may have a unified, systemwide medical staff rather than a medical staff at each hospital.  In 2014, the Centers for Medicare & Medicaid Services (“CMS”) revised Section 482.22(b) of the conditions of participation for hospitals, specifically allowing the unification of medical staffs.  The regulations were revised to permit the medical staff of a hospital, which is part of a hospital system consisting of multiple, separately certified hospitals, to participate in a unified, integrated medical staff.  Under the regulations, a medical staff may become part of a unified multi-hospital medical staff only if the medical staff affirmatively votes to do so.  The medical staff at each hospital must obtain a majority vote to use a unified, integrated medical staff.  Medical staffs incorporated into a unified medical staff may “opt out” by vote at any time and re-establish a separate, hospital-specific staff.

There are, of course, pros and cons to unifying the medical staff.  Unification could produce negative results, while it may also benefit the hospitals in the long term.  Unifying the medical staff may make the system stronger, providing uniform care processes that improve overall patient care and greater resources for each individual hospital.  However, unifying the staffs may disconnect the medical staff from the governing board, which can cause major tension within the system.  There are several considerations to take into account when making this decision.

If a majority vote is obtained by each separately certified hospital’s medical staff to unify as a medical staff, it is vital to understand the CMS conditions associated with such.  Doing so will require updates to the unified medical staff’s bylaws, such as inclusion of a process by which the voting medical staff members of each separately certified hospital are advised of their right to opt out and return to a separate distinct medical staff.  CMS regulations provide that the unified medical staff’s bylaws describe processes for self-governance, appointment, credentialing, privileging and oversight, as well as its peer review policies and due process rights guarantees.  The regulations also require that the unified medical staff establish and implement policies and procedures to ensure that the needs and concerns expressed by members of the medical staff, at each hospital, are given due consideration.  This may require major overhauls to bylaws documents or minor tweaks.  We would be happy to provide you with more information as to what may be necessary.

May 2, 2019

Posted on by hortyspringer

QUESTION:        To celebrate all 2019 college graduates, here’s the Question of the Week from the HLE about Tia going off to college, four years ago, coming to you courtesy of HLE University.  Let’s see if you can pass! — I was recently appointed as chair of a medical staff committee and am very happy, but I just realized that instead of merely attending meetings, I’ll have to run them, so I’m also extremely nervous.  Help!!!

ANSWER:            Did you graduate from old HLE U?  Let’s find out.

An efficient meeting is the key to making it an effective meeting, and running a meeting is hard work. Here are some tips:

Tip #1. Start on time. This is one of the most important tips. If a meeting isn’t started on time, chances are it won’t end on time, and that has consequences which we’ll discuss below. If a meeting always starts on time, the attendees will more than likely be there on time, since no one likes to walk into a meeting late, and being late disrupts the meeting.

Tip #2. Limit the conversation. What “limit the conversation” means is that if a couple of attendees in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?” Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion. This can be hard to do, but it is a skill that needs to be developed. Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #3. Take an issue off-line. There are times when a meeting is getting bogged down because no one has the information needed to make a decision. For example, is the bylaws revision being discussed required by an accreditation standard? A best practice? If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue. Better yet, ask all members to prepare in advance.

Another reason to take an issue off the agenda is when there are so many conflicting points of view that the issue won’t be able to be resolved at the meeting. The chair knows that no matter how much more discussion there is, the issue won’t be resolved. So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #4. End on time. This is the most important tip. If a meeting is to end at 8:30 a.m., end the meeting. Although some attendees don’t mind going over, others will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make — focus is lost. A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on. Also, not ending on time affects meeting attendance. If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

Sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. — that happens. But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting. The exception is if the issue is of critical importance, but that will be few and far between.

April 25, 2019

Posted on by hortyspringer

QUESTION:        One of our medical staff members asked if, under the Health Insurance Portability and Accountability Act (“HIPAA”), he can inform a patient he is currently treating about the cancer history of a former, deceased patient who was a family member of the current patient.  The physician believes that this information will assist the patient in making choices about the direction of her treatment. Can he do that?

 

ANSWER:            The HIPAA Privacy Rule protects “individually identifiable health information,” which is defined to include a patient’s past physical health condition.  Thus, the deceased patient’s cancer history meets this definition.  However, since the patient is deceased, is the information still protected under the HIPAA Privacy Rule?  The answer to this question is “yes.”  The HIPAA Privacy Rule protects individually identifiable health information of deceased patients for 50 years following the date of the death of the individual.  Assuming the patient hasn’t been dead for 50 years, the patient’s individually identifiable health information is subject to the protections of the HIPAA Privacy Rule.

That being said, it is certainly important that a patient understand his/her family history, including risks for certain diseases and disorders so that he/she can proactively address those risks.  Here, the treating physician’s hands aren’t completely tied when it comes to counseling the patient on such matters.  He has a few options.  The physician can rely on an exception to the HIPAA Privacy Rule, which permits the disclosure of protected health information for treatment activities.  According to guidance issued by the United States Department of Health and Human Services, the “treatment” exception “allow[s] use and disclosure of protected health information about one individual for the treatment of another individual.”  If the physician is concerned that counseling on a family member’s cancer history does not definitively meet the definition of “treatment” under HIPAA, he has other options.  First, and most obviously, the physician can ask the patient if she is aware of any family history of cancer.  If not, the physician can obtain a written HIPAA authorization from a personal representative (e.g., the deceased patient’s executor or administrator) to disclose the information.  If the physician is unable to obtain a written authorization for whatever reason (such as an inability to locate the personal representative) or believes this is too burdensome, the physician can still make treatment recommendations without disclosing health information protected under HIPAA.  For example, the physician may recommend more frequent cancer screenings based on the family history to which he is privy.

April 18, 2019

Posted on by hortyspringer

QUESTION:        Our Professional Practice Evaluation Committee recently asked a physician to attend one of its meetings to discuss several of his cases that are under review.  The physician says he’ll only attend if his attorney is with him.  Do we have to allow the attorney to attend?

ANSWER:            No.  The best way to address quality or behavioral concerns is for physicians to speak with physicians in a collegial and professional manner.  The presence of an attorney would likely cause committee members to speak less candidly and be concerned that their comments – no matter how accurate and honest – would be viewed as hostile or “defamatory.”  Also, an attorney might try to raise procedural arguments that distract from the substantive concerns being evaluated.

Physicians who are subject to a review are welcome and encouraged to consult with an attorney prior to the meeting if they wish.  They may also ask the attorney to accompany them to the hospital.  However, the attorney should be required to remain outside the meeting room.

We recommend that applicable policies clearly state that no attorneys (neither the hospital’s nor the physicians’) will attend meetings between the physician under review and the reviewing committee (or individuals).  At most, the policies could state that a physician may bring a colleague to such a meeting (such as a partner).  However, in such case, the guest should not be permitted to speak for the physician and should be required to sign a confidentiality agreement.

April 11, 2019

Posted on by hortyspringer

QUESTION:        Can a physician use a hospital’s DEA registration number to administer, dispense or prescribe controlled substances to patients at the hospital?

 

ANSWER:            Yes, physicians who are agents or employed by the hospital may, when acting in the usual course of business or employment, administer, dispense, or prescribe controlled substances under the registration of the hospital by which they are employed.  However, it is required that (1) the dispensing, administering, or prescribing is in the usual course of professional practice; (2) practitioners are authorized to do so by the state in which they practice; (3) the hospital has verified that the practitioner is permitted to dispense, administer or prescribe controlled substances within the state; (4) the practitioner acts only within the scope of employment in the hospital; and (5) the hospital authorizes the practitioner to dispense or prescribe under its registration and assigns a specific internal code number for each practitioner so authorized.

As you just read, the criteria for utilizing the hospital’s DEA registration number are very specific, so be sure the hospital and the physician follow and abide by each requirement set forth.  This includes, but is not limited to, that the practitioner is employed by the hospital and that the practitioner is authorized to prescribe, dispense, or administer controlled substances within that state.

April 4, 2019

Posted on by hortyspringer

QUESTION:        Do the Medicare Conditions of Participation place any requirements on the use of standing orders?

 

ANSWER:            Yes, they do.  The Centers for Medicare & Medicaid Services (“CMS”) have established multiple requirements for compliant use of standing orders in the hospital setting.  For example, each standing order must be reviewed and approved by the hospital’s medical staff and nursing and pharmacy leadership prior to use.  CMS emphasizes that this should be a “multi-disciplinary collaborative effort.”  Crucially, each standing order must have clearly identified specific criteria that govern when it will be executed.  CMS is very clear:  “Under no circumstances may a hospital use standing orders in a manner that requires any staff not authorized to write patient orders to make clinical decisions outside of their scope of practice in order to initiate such orders.”

Note that there is some ambiguity in the term “standing order,” and CMS recognizes this.  Consequently, it is possible that some of your pre-printed and electronic order sets could fall outside the scope of this regulation.

As part of your compliance efforts, we recommend periodically reviewing your policies on standing orders, order sets, and protocols for patient orders to ensure compliance with the Conditions of Participation and with state law.  We also recommend periodic compliance audits of medical records to verify that your policies are being implemented appropriately.

March 28, 2019

Posted on by hortyspringer

QUESTION:        We are finally reviewing our conduct policy after a number of years, and in the policy we define unprofessional conduct with a few broad categories, such as abusive or threatening language, throwing an object, or inappropriate physical contact.  Is this what you recommend?

ANSWER:            First, it is fine to have broad categories, but we recommend that those categories include specific examples.  For instance, “abusive or threatening language” is fine, but it should be further reinforced with examples, such as “abusive or threatening language, e.g., belittling, berating, and/or non-constructive criticism that intimidates, undermines confidence, or implies stupidity or incompetence.”  It could also be language that is “degrading, demeaning, or condescending.”  This makes it clear that “abusive or threatening language” is more than just yelling/screaming, etc.

For example, unprofessional behavior also means:

  • refusal or failure to answer questions regarding patients, return phone calls, or respond when on call for the Emergency Department in a timely manner;
  • intentional misrepresentation to Hospital administration, Medical Staff leaders, or others in an attempt to avoid responsibility for an action taken;
  • retaliating against any individual who may have reported a quality and/or behavior concern regarding a practitioner;
  • repeatedly failing to renew legally-required credentials prior to expiration;
  • inappropriate medical record entries impugning the quality of care being provided by the Hospital, another practitioner, or any other individual;
  • inappropriate access, use, disclosure, or release of confidential patient information.

The point is to make the list as specific and exhaustive as possible (but even so, still include language stating “including but not limited to” before the list).  This will help Medical Staff leaders tremendously because those leaders can point to a specific category/example without having to resort to interpretation of the language and trying to convince others that this category does really include that behavior.

Finally, we recommend that these polices be called “professionalism” policies, not “conduct” policies to reinforce that all practitioners conduct themselves in a professional and cooperative manner.

For more on this topic, please sign up for the upcoming
Grand Rounds audio conference
“Professionalism Policy — Key Elements”
on April 2, 2019 from 1:00 pm to 2:00 pm (Eastern time)
presented by: Lauren Massucci and Phil Zarone

March 21, 2019

Posted on by hortyspringer

QUESTION:        A physician came back from one of your leadership programs and was worried about whether our credentialing process complies with the Americans with Disabilities Act (“ADA”).  I’m confused about why we would need to comply with a law that only applies to employment.  Isn’t credentialing completely separate?

ANSWER:            It is true that the ADA is an employment law, so on its face, does not appear to apply to credentialing processes.  It is also true that “typical” credentialing practices would likely violate the ADA – because hospitals have traditionally treated health information being sought from applicants just as they would treat any other information being requested on an application form — references, verifications, licensure matters, etc.  As a result, in the credentialing process, health information is requested and reviewed at a stage that is likely analogous to the “pre-offer” stage under the ADA — the most restrictive stage of employment where employers aren’t yet permitted to request any health information.  (Under the ADA, employers do eventually get to request and consider everything necessary that is related to health.  It is more a question of managing the timing of those requests.)

As you pointed out though, credentialing IS different from employment, so why should we care if the process is compliant with the ADA – an employment law?  There are several reasons.  First, there are some hospitals that do directly employ physicians, and the ADA is clearly applicable to those relationships.  Second, even if the hospital isn’t the employer, most hospital-affiliated physician groups make employment contingent on the physician obtaining privileges at an affiliated hospital (i.e., successfully completing the credentialing process), and it is unclear whether a court would agree that one arm of a corporate entity can ask questions or seek information that the other arm of the same entity could not yet legally request.  Third, some jurisdictions have expanded the ADA to independent contractor relationships, and finally, there is a trend in court cases today where independent contractor physicians are claiming to be employees even when there are no employment agreements in place, claiming that the hospital exercises sufficient control over them to render them employees, for example, by making them comply with protocols, order sets, medical staff bylaws requirements.

One way to address concerns about the credentialing process is to change the timing of requesting and/or reviewing health information, asking detailed questions about the health of all applicants but waiting to review that information until after the Credentials Committee has determined that an individual is “otherwise qualified” for the clinical privileges requested on the basis of everything else that is being considered — education, training, experience, etc.  Only after that determination is made should the health questionnaire be reviewed.  Due to the sensitivity of that information, we also recommend that only one or two medical staff leaders review that information — reporting to the Credentials Committee that there are no concerns, or that concerns were raised and now the committee needs to discuss accommodations.