Question Of The Week

July 16, 2015

Posted on by hortyspringer

QUESTION:        Our Hospitalists have been short-staffed for some time now. They desperately need several new doctors. We understand their predicament, but we are also frustrated that they keep presenting us with sub-par applicants. Then they get upset with us for asking so many questions and taking so long. What can we do? – Credentialing Coordinator

ANSWER:        It sounds like you already have a keen appreciation for the importance of making the right decision at initial appointment. As one Credentials Committee Chair recently noted, “Good credentialing is the foundation of quality care.” Thus, while appointing a below average applicant may give the group some initial relief with their scheduling dilemma, that relief will be short?term, and predictable problems will follow.

There are a few steps that can be taken to help address the problem of a group recruiting applicants who are not likely to meet your credentialing expectations. First, you should consider strengthening your threshold eligibility criteria set forth in the Credentials Policy. Instead of just requiring that an applicant have a license, your criteria could require an unrestricted license and no previous licensure actions within the last seven years. You could also require no past disciplinary actions by any other hospital and no resignations during or in exchange for not conducting an investigation. Completion of an ACGME?approved residency program and board certification are also excellent standards to build into threshold eligibility criteria.

No one’s application gets processed if he or she does not satisfy the threshold criteria. Therefore, once the threshold criteria are built into your Credentials Policy, they will help filter out some of the “sub-par” applicants. (It’s important to remember that waivers to the threshold criteria should be limited to exceptional situations.)

Second, once the threshold eligibility criteria are adopted, they should be shared with all members of the Medical Staff, but you could make a special effort to call the criteria to the attention of the hospitalist group and other groups who may have a history of recruiting problems. Anyone who is recruiting new applicants should understand that all new applicants must satisfy the threshold eligibility criteria. It’s helpful to keep in mind, as noted in the Kohn case discussed in this week’s HLE, courts defer to threshold criteria adopted by hospitals.

Third, if the hospitalist group has a contract with the hospital (and it probably does), the hospital should build the threshold criteria into that contract. No employed or contracted physician should be appointed and granted clinical privileges unless the physician satisfies the basic threshold criteria.

July 9, 2015

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QUESTION:      A patient acts erratically, is still ill, leaves the hospital AMA, and tells hospital personnel not to inform his family. That’s a HIPAA patient direction. The patient has two adult children who would want to know this information. What should the hospital do?

ANSWER:         An adult son brought his 60-year-old father to the hospital’s ED with erratic behavior, confusion and intoxication. The patient was diagnosed to have had a stroke. After receiving hospital inpatient care, the patient is transferred to a rehabilitation facility. The patient leaves the rehab facility by taxi after he has a disagreement concerning the facility’s no smoking rules.

After staying at a hotel for a night, the patient comes to the front entrance of the hospital via another taxi ride. He chooses to simply sit there. A social worker who had been working with the patient joins him. While he is still confused, the patient is not a candidate for an involuntary hold or commitment. The patient refuses to go to the ED or receive any hospital care. He calls for another taxi and leaves for a place unknown. Before he leaves, the patient tells the social worker not to report any of this information to any of his adult children. (He has three children, two of whom live in the area.)

Can the hospital notify the adult children under HIPAA? Should it? HIPAA appears to prohibit any notification given the patient’s directions. But there is a HIPAA exception where information sharing is needed to prevent imminent danger to the individual.

The hospital was uncertain what to do. This was an AMA patient, but not in the usual way. It wasn’t clear that he had re-presented to the hospital. The social worker believed that the man was putting himself at real risk from both the post-stroke physical activity and the certainly odd behavior, but that wasn’t a determination made by a physician. Nor was the social worker comfortable with saying that the individual truly lacked decision-making capacity.

The man’s adult children had been very much involved in his care. They would want to know what was happening. Doing the right thing seemed to lead to informing the adult children.

The concern for the patient and doing right by the adult children lead us to feeling comfortable with relying upon the imminent danger exception. There was also some risk management discussion: a potential HIPAA complaint filed by the man versus a potential complaint filed by the adult children that they should have been informed as to what was going on. The outcome was a collaborative counsel-client decision, very much based upon its peculiar facts (as is so often the case).

July 2, 2015

Posted on by hortyspringer

QUESTION:        We are in the process of buying a Medicare provider. Can you provide any guidance on Medicare’s Change of Ownership (“CHOW”) process?

ANSWER:             Yes. Medicare has made it practically impossible to acquire any provider without assuming that provider’s Medicare Provider Number. As a result, you will have to follow Medicare’s CHOW process.

The CHOW process requires both the Seller and the Buyer to complete a CMS Form 855-A for each Medicare Provider Number. (It is not unusual for one provider to have several Medicare Provider Numbers.) You will also need to obtain a new NPI number that will correspond to each Medicare Provider Number.

The Buyer and the Seller’s completed Forms, 855-A, with all attachments, must be sent to the Medicare Contractor. Please be sure to provide all information requested in the required format. When they ask for a zip code +4 or the date in an mm/dd/year format, they mean it! If you have to provide any supplemental information, then you also have to have a new certification statement (Section 15 of Form 855-A) signed and dated by an “Authorized Official.” An “Authorized Official” is defined in the 855-A as an individual who has the authority to make the changes in that submission and to commit the Buyer to fully abide by the statutes, regulations and program construction of the Medicare Program.

Once the Medicare carrier approves the application, it will be sent to CMS’s Regional Office for their review and comment. Once approved, the Regional Office will issue an approval to the provider, the Medicare Contractor and the State.

This process takes time, so plan accordingly. Also since the Buyer will be assuming the Seller’s provider number, the acquisition agreement should address the rights of the Buyer in the event of an overpayment that was caused by the Seller’s pre-closing operation of the provider but is not discovered until after the Closing Date.

Did you notice how many of this week’s cases involved employed physicians? We did!

Please join Henry, Charlie and Rachel in Las Vegas on October 15-17 for the Institute on Employed Physicians and Their Impact on the Medical Staff.

June 25, 2015

Posted on by hortyspringer


QUESTION:        Our hospital would like to develop a “VIP” program by which certain individuals would receive special recognition when they are hospitalized. For example, current or past members of the Board of Directors or other individuals who have served the community might receive a card, flowers or a personal visit. Is such a program acceptable under HIPAA?

ANSWER:          HHS has issued no guidance on this topic. However, we believe a VIP program poses little risk under the HIPAA Privacy Rule.

The Privacy Rule permits hospitals to use or disclose protected health information for its own “health care operations.” “Health care operations” is defined broadly to include “general administrative activities,” which could reasonably be interpreted to include efforts to build and maintain relationships with individuals who are involved in the affairs of the community.

Of course, some hospitalized individuals who are particularly concerned with privacy may complain that the VIP program does not actually involve health care operations. One way to limit the possibility of such complaints is to ensure that any individual who has opted out of the facility directory, as permitted by the Privacy Rule, does not receive special recognition. More broadly, any dissemination of information within the hospital should be limited to those with a “need to know” for purposes of the VIP program.

Another way to limit complaints is to ensure that the health information of a patient is not disclosed outside of the hospital. For example, if flowers or other small gifts are ordered, they should be sent to an administrator’s office and then re-directed to the patient. Patients may expect hospital personnel to know they are hospitalized, but they may object to that information being shared with the local florist or other merchants.

We are unaware of any enforcement actions involving VIP programs, which might suggest that they are not viewed as a HIPAA violation by HHS. However, hospitals that choose to implement them should do so in a way that protects patient privacy and limits the disclosure of patient information.

June 18, 2015

Posted on by hortyspringer

QUESTION:        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:          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 a Joint Commission 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.

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.

June 11, 2015

Posted on by hortyspringer

QUESTION:        Our professional practice evaluation committee (“PPEC”) recently obtained an external review of a neurosurgery case that involved significant complications and a poor outcome for the patient. We shared the de-identified results of that review with the surgeon and invited him to submit his written comments and meet with the committee. Instead of doing so and without notice to the PPEC, he arranged for his own external review, by a neurosurgeon picked by him and unknown to the committee. He has submitted that review – which found no deviation from the standard of care – to the committee, with a statement indicating that no further review is required. What can we do with conflicting external reviews? Should we reprimand him for violating HIPAA?

ANSWER:        It can be frustrating when the leadership is attempting to deal openly and collegially with a colleague and its efforts are rebuffed. Such is the case here, where the neurosurgeon whose case is under review has ignored your request for his personal input and his attendance at your upcoming meeting and, instead, has obtained an unauthorized review by a third party. Your knee-jerk reaction may be to reprimand him or disregard his unsolicited expert opinion out-of-turn. After all, you are trying to help this practitioner improve his performance and he is, by all observation, fighting you tooth and nail. While that perspective is understandable, we encourage you to also think about this from the neurosurgeon’s perspective before deciding on next steps.

First, to get the legal issue out of the way, please note that there does not appear to be a violation of HIPAA’s privacy regulations, since the neurosurgeon is part of an organized health care arrangement with the hospital (as are all doctors who are members of the Medical Staff) and, in any event, the disclosure of information he made to his external reviewer was limited to records of a patient that he and the hospital have both treated and was for the limited purpose of quality improvement. HIPAA permits disclosures in such situations.

While HIPAA may not have been violated, the neurosurgeon’s actions may have nevertheless violated the hospital’s policies. For example, the hospital may have policies requiring all external reviews to be arranged through a specific person (such as the CEO or CMO) or body (such as the MEC), to ensure that any contracts for such reviews include appropriate protections. Further, the hospital may require its own business associate agreement or a confidentiality policy to be signed by any reviewer prior to sending that reviewer medical records. In this case, because the review was arranged by the neurosurgeon, but involved the disclosure of the hospital’s records, the hospital lost the opportunity to protect itself through the contract with the reviewer. It would be appropriate to follow up with the neurosurgeon by requesting a copy of the business associate agreement and, consistent with any hospital or Medical Staff policy, by notifying him of the appropriate process for arranging external reviews of care provided in the hospital.

Unless there is good reason to proceed otherwise, a reprimand is probably not necessary. Unless you have additional facts pointing to the contrary, it seems likely that this physician did not realize that his actions in obtaining an independent review informally – and without the authorization of the hospital and its Medical Staff leaders – could violate policy.

Now that you have the neurosurgeon’s independent review in your hands – what should you do with it? Medical Staff leaders often struggle with how to proceed in cases where experts disagree. Admittedly, this can seem like a “damned if you do and damned if you don’t” sort of situation. The good news is: Most courts give great deference to the decisions of hospitals and their Medical Staff leaders in matters involving Medical Staff appointment and clinical privileges. So, when facing conflicting information, your hands are not tied. You should feel comfortable looking at all of the information at hand, weighing each piece against the totality of information, and then finalizing a decision. Things to keep in mind:

  • Don’t reject the neurosurgeon’s independent review out of hand, simply because the neurosurgeon obtained it without notice to the PPEC and without going through formal channels. Consider the qualifications of the independent reviewer and the quality of the report that he or she supplied. Ask follow-up questions, if necessary. In the end, you may reject the review if the reviewer is not adequately qualified, does not have current clinical experience, or has not delved into the parts of the case that the PPEC thinks are relevant. If you do reject the report, or choose to give it little weight, articulate your reasons for doing so – and record those reasons in the minutes of the meeting where the matter is decided.
  • If the independent review seems well-informed and the reviewer seems well-qualified, you may try to work out the conflict between the PPEC’s external review and the neurosurgeon’s external review via any one or more options. First, you may choose to send the report submitted by the neurosurgeon to the PPEC’s external reviewer – and ask that your reviewer comment on the contrary conclusions. Second, you may choose to send the PPEC’s external review report to the neurosurgeon’s independent reviewer – and ask that reviewer to comment on the contrary conclusions. You could send both external reviews to a third external reviewer, who may act as a “tie breaker.” As a fourth option, you could choose to simply contact the neurosurgeon’s reviewer to question him about his conclusions – and verify that he had all relevant information about the care and about the PPEC’s concerns at the time he conducted his review and wrote his report.
  • In the end, the PPEC will need to weigh all of the information it has gathered before deciding how to proceed. This will mean considering all external reviews, any input from the physician, the opinions of the physicians who serve on the committee, and the physician’s peer review history, among other things. It must decide which sources of information are most credible, informative, relevant, and persuasive. Remember that the purpose of professional practice evaluation is to identify areas where there is room for improvement. Therefore, the leadership may choose to give less weight to a case review that concludes that there was “no deviation from the standard of care” (a term usually reserved for malpractice litigation, which relates only to whether the care is considered negligent by legal standards and not to whether the care satisfies your organization’s expectations) and more weight to a review which identifies strengths and weaknesses in the care that was provided.

Finally, one last point that, though discussed last, is not of least importance. The PPEC has invited the neurosurgeon to submit written feedback and to attend its upcoming meeting. The physician has ignored these requests. It is important that you follow up on these invitations – and not get sidetracked by the fact that the physician has submitted a report from an independent reviewer. Now is the time to follow up with the neurosurgeon. Tell him that you will consider the report he submitted, but that he must provide the written feedback and attend the meeting, as previously requested. If you have language in your Medical Staff Bylaws, Credentials Policy, or Professional Practice Evaluation Policy stating that individuals must provide information upon request by the leadership, or stating that they must attend meetings when given special notice that they are required to attend and that their care will be discussed, cite that language.

Make it clear that the leadership will not be thrown off course by the submission of the independent review – or by any other antics. Performance improvement can occur only if physicians under review actively participate in the professional practice evaluation process. Accordingly, it is important that this neurosurgeon get on board and work with the PPEC, collegially, to help it get to the bottom of what happened in this case to give rise to such serious complications and such a poor outcome.

June 4, 2015

Posted on by hortyspringer

QUESTION:        Can credentials and peer review information about a practitioner be shared with a sister hospital if the sister hospital has the same Board but each has its own separate Medical Staff?  Should they?

ANSWER:         Hospitals that are affiliated under the same Board, in a system, can exchange information, although we recommend several steps to maximize legal protection. We generally recommend including a provision in each hospital’s medical staff bylaws or credentials policy, as well as a statement on the application form, that the applicant understands that information will be shared among entities in the system and that the sharing of this information is not intended to be a waiver of the state peer review protection statute. It is also a good idea to have a formal information sharing agreement among the hospitals which clearly defines what information will be shared, when it will be shared, and to whom it will be forwarded.

As for whether the hospitals should share information, the answer is yes. Two hospitals under one Board would be considered one corporate entity. Each individual hospital (or clinic, health plan, ambulatory surgery center and any other related facility) is part of that one entity. Important to the medical staff leaders responsible for helping to maintain high standards of care through careful and thorough credentialing of physicians, is the fact that because it is one entity, credentialers may be “deemed” to be making recommendations as to whether a specific practitioner is qualified and competent based on the collective knowledge of the entity as a whole, rather than the knowledge contained within an individual hospital. The standard in the law – when it comes to doling out liability – is that the credentialers “knew or should have known” the relevant information that came from the sister facility.

May 28, 2015

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QUESTION:        We have a very small neurosurgery department at our hospital, where the active members of the medical staff are obligated to provide ED call. Assuming that we only have two neurosurgeons that are able to cover ED call, does this mean they must each take 180 days of call each year? Our physician leaders are telling us that this is a tremendous burden, but we do not want to violate EMTALA.

ANSWER:        A tough question, made even tougher by the fact that CMS has provided very little guidance on the reasonableness of hospital call schedules. In fact, the best rule of thumb comes from historical guidance from CMS that CMS now specifically denounces!

To begin, it is important to keep in mind that CMS does not require 24/7/365 coverage. Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s coverage arrangements. Frankly, this is not a very helpful rule, so many organizations that we work with take a “rule of three” approach, as it relates to provider on-call responsibilities. This approach is based on prior, informal guidance from CMS that said if there were three physicians in a particular clinical specialty on a medical staff, the hospital had the obligation to provide emergency services on a 24/7/365 basis for that specialty. This has been extrapolated to mean that, in a single physician specialty, call would need to be provided only one-third of the time (i.e., 10 days/month). This would mean the hospital above would have neurosurgery coverage for 20 days out of the month.

While CMS has explicitly denied the rule of three ever existed, we think this is a relatively safe position to take in terms of EMTALA compliance. Of course, we have seen other facilities adopt a “rule of four” or even a “rule of five” where they have found the obligation created under the “rule of three” to be too burdensome or if there are other “relevant factors” that would justify another approach (e.g., the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc.).

May 21, 2015

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QUESTION:        We are currently in the process of revising our Medical Staff Bylaws and have been trying to pin down the requirements for the history and physical (“H&P”) provisions in the Bylaws. As a starting point, could you let us know what details are required by federal law and regulations and accreditation standards?

ANSWER:        The Medicare Conditions of Participation for hospitals (“CoPs”) have several requirements for what must be included in the Medical Staff Bylaws when it comes to H&Ps. The CoPs require that the Bylaws include a requirement that a physician, oromaxillofacial surgeon, or “other qualified licensed individual in accordance with State law and hospital policy” complete an H&P no more than 30 days before or 24 hours after admission or registration, but at all times prior to surgery or a procedure requiring anesthesia services. When the H&P is conducted within 30 days before admission or registration, an update (which notes any changes in the patient’s condition) has to be completed and documented by a licensed practitioner, who holds privileges at the hospital to perform an H&P, within 24 hours after admission or registration but always before surgery or a procedure requiring anesthesia.

The CoPs do not address content-related requirements of H&Ps, other than noting in the Interpretive Guidelines that “[t]he purpose of a medical history and physical examination…is to determine whether there is anything in the patient’s overall condition that would affect the planned course of the patient’s treatment, such as a medication allergy, or a new or existing co?morbid condition that requires additional interventions to reduce risk to the patient.”

The Joint Commission Accreditation Standards reiterate the timing requirements for H&Ps and are, similar to the CoPs, not overly prescriptive when it comes to content-related details. In a recent FAQ posted on its website on March 5, 2015, the Joint Commission noted, generally, that “[o]rganizations have the flexibility of determining the content of the H&P based on the population served and the services provided.” Some additional guidance is contained in the glossary of the hospital Standards, which provide a definition for an H&P. That definition indicates that the history portion “may include information about previous illness, previous medical or surgical interventions and response to treatment, family health history, and social, cultural, economic, and lifestyle issues that may affect an individual’s health and well-being” (emphasis added). The physical portion “involves the physical examination of the individual’s body by the following means: inspection, palpation, percussion, and auscultation….”

Under the CoPs and Joint Commission Accreditation Standards, there is no requirement that the content-related details of H&Ps be included in the Bylaws. Thus, these content-related details may be included in other medical staff documents, such as the Medical Staff Rules and Regulations (however, we recommend including all the details for H&Ps in the Bylaws for ease of reference).

Occasionally, state law and regulations will contain H&P requirements that are different, and at times more restrictive, than the CoPs and the Joint Commission’s Standards. The same applies for commercial insurer billing requirements. Commercial insurers will often dictate what needs to be included in the H&P (e.g., age, height, vital signs, past medical and behavioral history, family history, physical examination, medical impression, etc.) for reimbursement purposes. Accordingly, state law and regulations, as well as any commercial insurer (with which your hospital contracts) requirements, must be consulted when deciding on what will be included in the H&P sections of your Medical Staff documents.

May 14, 2015

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QUESTION:        Would our state statutory peer review privilege be jeopardized if non-physician support personnel or other representatives of the management team or board attended peer review committee meetings?

ANSWER:        No. It is our experience that the most effective peer review processes result when there is a collaborative approach among the physicians, and other practitioners, non-practitioner support personnel, and hospital representatives. (The latter commonly serve as non-voting members but most committees strive for consensus in today’s world.) (Readers should check with counsel about any specific case law in their states, but – based on our research – the fear of a “waiver” ruling by a court is far greater than the incidence of actual court opinions holding that providing peer review information to someone in a committee meeting, who is not a voting committee member, waives the privilege.) It is becoming increasingly common for a board member to attend credentials committee and MEC meetings as well. State peer review privilege laws do not generally limit the protection to meetings at which only physicians are present (and documents generated at or for such meetings). In fact, the presence of management team or board members may bolster the legal protection available by making clear that the committee’s discussions advance the general interest in quality patient care, and not the interests of any individual physicians. A hospital’s overall responsibility for the peer review process is also outlined in the Medicare Conditions of Participation and most hospital licensing regulations. (For hospitals choosing to be accredited by The Joint Commission, the CEO is to be present at MEC meetings.) The governing board is legally responsible for everything that occurs in the hospital, including credentialing and peer review, with the medical staff committees, departments and leaders being accountable to the governing board for oversight of the quality of care provided to patients. Nonetheless, all individuals present at such meetings should sign confidentiality agreements, at least annually.

There may actually be risks to the physicians and the hospital if hospital personnel are excluded. First, such a practice could create the misperception that the medical staff and hospital are separate legal entities. This could make physicians and the hospital more vulnerable to certain types of lawsuits (e.g., antitrust and other conspiracy based claims). And, the presence of the CEO or designee or a board member at meetings of peer review committees strengthens the immunity provided by the federal Health Care Quality Improvement Act because it makes it clear that the committee is a “professional review body” that is “assisting the governing body in a professional review activity.” 42 C.F.R. §11151(11).