Question Of The Week

May 7, 2015

Posted on by hortyspringer

QUESTION:         We recently rejected an application for initial appointment because the applicant misrepresented information on his application – he failed to disclose that he had been investigated at another hospital. We heard that there is a new National Practitioner Data Bank Guidebook and that it is more expansive in terms of what has to be reported. Do we have to report our decision to the National Practitioner Data Bank?

ANSWER:         You are correct. There is a new NPDB Guidebook that was published on April 6, 2015. You are also correct that the new NPDB Guidebook is more expansive in some areas (especially with respect to when an investigation starts). And, your question is a good one. In fact, there is a similar question in the new NPDB Guidebook. The answer in the new NPDB Guidebook to whether a falsification on an application is reportable is “it depends.” We can be more definitive than that. In our opinion, if you have the right bylaws language and follow the right process, you do not have to report a decision to reject an application because of a misrepresentation or omission.

The new NPDB Guidebook took the position that a hospital would have to report a clinical privilege decision based on the falsification of an application if the hospital determined that the falsification “could adversely affect the health or welfare of a patient.” We recommend that your medical staff bylaws or credentials policy (“bylaws”) clearly state that an application that contains a misstatement or omission is rejected and not processed. Thus, there should be no adverse professional review action, there should be no findings or conclusions that the physician’s professional conduct “adversely affects or could adversely affect the health or welfare of a patient,” and there should be no report to the National Practitioner Data Bank.

Importantly, a decision to reject and not process an application is an administrative decision not an adverse professional review action. The new NPDB Guidebook makes it very clear that “Administrative actions that do not involve a professional review action should not be reported to the NPDB.”

Your bylaws should also clearly state that a rejection of an application does not “entitle the applicant or member to a hearing or appeal.” To reinforce this point, the section of the bylaws that deals with hearings should also state: “None of the following actions constitute grounds for a hearing. These actions take effect without hearing or appeal…a determination that an application will not be processed due to a misstatement or omission.”

April 30, 2015

Posted on by hortyspringer

Dealing With Dishonest Re-Applicants

QUESTION:        Late last year, we stopped processing the Medical Staff application of a physician who omitted an out-of-the-country residency training program that was begun but not completed from his application form. We considered the applicant’s explanation for the omission and determined that it was not credible. So, we chose not to process the application, pursuant to our Bylaws language that says that applications which include material misrepresentations or omissions may not be processed. The applicant was notified.

Last week, this same physician submitted a new application, this time listing the previously-omitted residency on the form. Do we have to process the application?

ANSWER:        Hospital and medical staff leaders are placed in a difficult position when an applicant who has previously lied to them seeks reconsideration. Luckily, there are a couple of ways to deal with a re-applicant who has a history of material misrepresentations or omissions.

One option is to adopt language in your Medical Staff Bylaws or Credentials Policy stating that an individual who has previously had an application for appointment or privileges deemed ineligible for processing due to a material misrepresentation or omission is ineligible to apply or, alternatively, is ineligible to apply for some specified period of time (such as three or five years). With such language in hand, you need not engage in verifying or processing any re-applications by an individual who has previously filed an application with a material misstatement or omission.

In the absence of such Bylaws or policy language, you still need not process the application as if nothing happened. Rather, we recommend that you deem the application incomplete due to the unresolved concern involving the veracity of the applicant. You can then rely on your Bylaws (or Credentials Policy) language stating that incomplete applications will not be processed and that applicants have the burden of completing their applications.

In the case of an applicant who has made a misstatement or material omission on a previous application, you should notify the individual that the application remains incomplete due to the unresolved concerns over the individual’s veracity – and then inform the individual of the deadline for submitting sufficient information to resolve that concern (for example, information showing that the individual has taken steps to address his or her lack of veracity).

It can be difficult for an individual who has lied on a previous occasion to resolve the concern that they will lie again in the future. After all, how would the hospital and medical staff leadership know whether the individual is being honest, except by being constantly vigilant in verifying every little fact that the applicant asserts? The re?applicant may choose to submit evidence indicating that the previous misrepresentations or omissions were related to an addiction problem that caused him or her to lie – and that he or she is now in treatment. Perhaps the re-applicant could show that he or she attended a professional ethics class or started filling out applications personally instead of relying on his or her office staff to do so. If the re-applicant submits any such information – and if the leadership truly believes that the information resolves the concern that the individual will lie again – then it may choose to process the application. If not, the applicant can be informed that the information is insufficient and the application will remain incomplete until such time as additional information deemed sufficient by the leadership is received.

Of course, most Medical Staff Bylaws and Credentials Policies include language stating that if an incomplete application is not completed within 30 days of notice being provided to the applicant, then the application will be deemed withdrawn. So, if the re-applicant is not able to resolve the concerns with his or her veracity during that time period, the application can be deemed withdrawn, the re-applicant can be notified, and all processing can stop.

Want to learn more about addressing applicants – and re-applicants – with red flags in their applications? Join us this fall for The Credentialing Clinic, October 15-17, in Las Vegas. More information.

April 23, 2015

Posted on by hortyspringer

QUESTION:         The law in our state was recently changed and advance practice registered nurses (APRNs) are now allowed to practice independently. How should we handle this change in the law at our hospital? Can we continue to require collaboration agreements? Or should we eliminate that requirement and allow the APRNs to practice on their own?

ANSWER:        There is not a “right” answer to the question about how APRNs should practice in any hospital. There is a trend in licensing statutes around the country to allow APRNs to practice independently. An independent practice for APRNs makes a great deal of sense on an outpatient basis and may work in a hospital setting if you are in a rural setting where the option to have a collaborative relationship with a physician is limited.

However, even with a change in the law, your hospital is not required to allow APRNs to practice independently in your facility. Your hospital may want to put together a task force to consider whether there should be a change in practice for APRNs. In addition to other medical staff and hospital leaders, the task force could include APRNs and physicians who have a history of collaborating with them. Be careful not to load the task force with physicians who have an economic reason to limit the practice of APRNs.

The task force could gather information and then consider whether to recommend that APRNs continue to practice in a collaborative arrangement, whether all APRNs are permitted to practice independently or whether to recommend that the ability of APRNs to practice independently is made by practice specialty (e.g, nurse midwives, CRNAs, APRNs in the NICU).

The task force could also consider whether to recommend requirements for backup and coverage, especially for situations when a patient has a complication that requires expertise outside the scope of practice of the APRN. The task force might also be charged with reviewing how the care provided by APRNs will be evaluated through the peer review process.

It makes sense to continue to evaluate how care is provided to patients in your hospital and to look for ways to improve that care, including the way care is delivered. APRNs and Physician Assistants play a vital role in the delivery of care to patients in most hospitals. You should continue to look for ways to integrate these practitioners into your health care teams in a way that is safe and productive.

April 16, 2015

Posted on by hortyspringer

QUESTION:        Our hospital does not have a bariatric surgical program. In fact, we are concerned that neither our equipment nor our staff are up for handling obese patients. Can the hospital set a patient weight limit for an area of care, like the OR or the ICU?

ANSWER:        It’s an interesting question.

Under certain states’ statutes, employment law protects the obese from being discriminated against.  It appears that this idea is gaining steam to potentially create a new protected area under the federal ADA, again in terms of employment.  But, as of now, there does not appear to be any clear law that makes obesity a protected class in terms of receiving health care services.  Nonetheless, for good risk management purposes, any hospital’s rules as to care for obese patients should be based in reasonable principles and concerns.

The risk management issue arises when it appears that a hospital has set a weight number arbitrarily.  Any hospital rule should be based upon sound information and supporting data as to why the rule is needed, be that for the protection of the patient and/or the hospital and its staff.  Otherwise, this practice is more likely to expose the hospital to complaints and ethical questions of discrimination.

The clearest situation is where the hospital’s equipment is incapable of supporting the patient’s weight.  But where the equipment can accommodate the weight, there should be good reasons for the hospital’s position, be that injury to staff, clinical difficulties for treating the patient (outside of equipment weight-support/ability, etc.).  These would be specifics to the nature of the patient and/or the nature of the hospital and its resources.

On the ethical front, a statement from the American College of Obstetricians and Gynecologists is helpful as a guiding principle: “It is unethical for physicians to refuse to accept a patient or decline to continue care that is within their scope of practice solely because the patient is obese. However, if physicians lack the resources necessary for the safe and effective care of the obese patient, consultation or referral or both are appropriate.”

Obesity has been increasingly held to be a protected area in employment law, and employment termination due to weight discrimination has been successfully challenged a few times by the Equal Employment Opportunities Commission (EEOC).   In 2014, the AMA classified obesity as a medical disease for the first time.  All of this is moving in the direction of obesity to be classified as a disability in terms of employment.  Only time will tell whether this becomes a stepping stone for further expansion into other areas.

April 9, 2015

Posted on by hortyspringer

QUESTION:        We have been provided with a range of fair market rental values from a local real estate appraiser. Is this sufficient to benchmark the fair market value of the rent that we are charging?

ANSWER:        A range of fair market value from an experienced appraiser is an excellent start. However, in order to establish that the rent that you are charging constitutes a commercially reasonable, fair market value rent, you have to consider the totality of the circumstances that resulted in that range.

In U.S. ex rel. Goodstein v. McLaren Regional Medical Center, 202 F.Supp.2d 671 (E.D. Mich. S. Div. 2002) (the “McLaren Case”), a qui tam relator alleged that the rent being paid by a hospital to several orthopedic surgeons who owned a medical office building (and who were in a position to refer Medicare and Medicaid patients to that hospital and its orthopedic and physical therapy services) exceeded fair market value.

In the McLaren Case, the physicians were the landlord and the hospital was the tenant, so the issue was whether the rent paid by McLaren exceeded fair market value. However, the same legal principles apply, where a hospital is the landlord and a physician is the tenant, with the issue being whether the rent that the hospital will charge the physician is less than fair market value. In either event, the legal issue remains the same – whether the parties can prove that the rental rate set forth in the lease constitutes the fair market value of the space being leased.

The Court in the McLaren Case then ruled that based on the totality of the circumstances that the respective experts used to determine the rental rates set forth in their respective appraisals, the rental rate that McLaren agreed to pay the physician landlords was consistent with fair market value.

In reaching its conclusion, the Court carefully considered the facts that the Government’s experts used to determine the rent that the Government alleged should have been paid, and compared those facts to the facts that McLaren’s experts relied upon when they opined that the rental rate that was actually paid was at fair market value.

The key to the Court’s analysis was the comparability studies performed by each appraiser. This was so much so that the Court specifically stated that it did not consider the analysis performed by one of the Government’s experts because during his testimony this appraiser did not identify the comparables he used in his appraisals. Thus, the Court had no way of evaluating whether the appraiser used appropriate comparables in his appraisal.

The facts that the Court in the McLaren Case considered in its comparability analysis included the manner in which the rent in each building was determined (i.e., triple net versus a gross rental rate). The Court found that while comparing a triple net rental rate to a gross rental rate required the appraiser to adjust the respective rental rates to take into account the different rental formulas used, the Court also found that otherwise comparable buildings should not have been excluded from a comparability analysis merely because the manner used to determine the rental rate in that building was different than the rental charged in the building at issue.

However, the most important factor in the Court’s analysis was whether the buildings used in each expert’s comparability studies were of similar quality and location to the building at issue. The Court disagreed with the buildings that the Government used to allege a lower rate should have been charged in the building under consideration because of the Government experts’ use of comparables buildings that included: (i) a building without an elevator to one that contained one; (ii) an ADA-compliant building to one that was not; (iii) an older, “run down” building of inferior construction to a newer building; (iv) a building located in a flood plain to one that was not; (v) a building where the building and the parking lot had water problems to one that did not; (vi) a financially viable building to one that was in foreclosure or purchased at a fire sale; (vii) a building with numerous occupants to one where there was no commercial space for lease because it was entirely owner-occupied; and (viii) an older building with low ceilings and small windows that have not been remodeled since their construction 20 years earlier and was not well maintained to a modern, well-maintained building.

So, it is important to have a clear understanding as to how the range of fair market value was determined and to make sure that the comparable properties that were used as the basis for that range are truly comparable in physical structure and terms of the lease (i.e., Triple Net versus all inclusive).

April 2, 2015

Posted on by hortyspringer

QUESTION:    May physicians text or e-mail patient information to one another if such texts or e-mails are directly related to patient care? If so, does HIPAA require that such transmissions be encrypted?

ANSWER:       Any discussion of sending Protected Health Information (“PHI”) via text or e-mail should distinguish between: (1) the HIPAA Privacy Rule and (2) the HIPAA Security Rule:

(1)       The Privacy Rule is concerned with WHY information is being used or disclosed. Is there a permissible purpose? There is no violation of the Privacy Rule if a text or e-mail is for a treatment purpose.

(2)        The Security Rule is concerned with HOW information is transmitted and stored. Thus, while it may be appropriate for one physician to disclose PHI to another physician for treatment purposes, the Security Rule could be violated if the method used to transmit that information is improper.

The Security Rule has three categories of requirements:

(i)         Standards.

(ii)        Required Implementation Specifications.

(iii)       Addressable Implementation Specifications.

Covered entities must comply with all “Standards” and “Required Implementation Specifications.” As the name implies, “Addressable Implementation Specifications” do not always have to be implemented. Instead, each covered entity must evaluate whether an Addressable Implementation Specification is a “reasonable and appropriate safeguard in its environment, when analyzed with reference to the likely contribution to protecting” PHI. If so, the Addressable Implementation Specification must be implemented. If not, the covered entity must consider whether an alternative measure to protect security is feasible and must document its conclusions.

Encryption is an Addressable Implementation Specification. Thus, covered entities are expected to encrypt texts and e-mails if doing so is a “reasonable and appropriate safeguard in its environment.” In evaluating this question, covered entities should consider whether encryption would interfere with patient care (e.g., undue delays in transmission, retention of encrypted transmissions, etc.).

March 26, 2015

Posted on by hortyspringer

QUESTION:   Can advanced practice clinicians and other non-physicians be appointed to the medical staff?

ANSWER:   Yes, as long as your state hospital licensure regulations and medical staff bylaws allow them to be medical staff members. The Interpretive Guidelines of the Medicare Conditions of Participation for Hospitals, at §482.12(a)(1), say:

  • The governing body has the authority, in accordance with state law, to grant medical staff privileges and membership to non-physician practitioners.
  • The regulations allow hospitals and their medical staffs to take advantage of the expertise and skills of all types of practitioners who practice at the hospital when making decisions concerning medical staff privileges and membership.
  • Granting medical staff privileges and membership to non-physician practitioners is an option available to the governing body; it is not a requirement.

Practitioners who can be on the medical staff may include any of the following:

  • Physician assistants
  • Nurse practitioners
  • Clinical nurse specialists
  • CRNAs
  • Certified nurse-midwives
  • Clinical social workers
  • Clinical psychologists
  • Anesthesiologist assistants
  • Registered dieticians or nutrition professionals
  • Physical therapists
  • Occupational therapists
  • Speech language therapists

Mind you: you don’t have to appoint any of these categories of practitioners to the medical staff, but unless your state law says otherwise, you can.

March 19, 2015

Posted on by hortyspringer

QUESTION:        In this week’s “NEW CASES,” I see that the U.S. Court of Appeals for the 7th Circuit held that a Chief of Staff’s discussion with an applicant about the red flags in his application and the consequences of denial (reporting to the NPDB) constituted an adverse employment action. Should we immediately halt all such conversations?

ANSWER:        No – you do not need to immediately halt informal discussions with applicants regarding the concerns you have about their applications. Nor need you stop educating applicants and medical staff members about the credentialing process and its intricacies. HOWEVER, as always, you should be careful about the legal implications of how you communicate regarding these matters.

First, let’s look at how the Seventh Circuit described the conversation between the Chief of Staff and Dr. Simpson (internal citations omitted):

Dr. Eric Miller [The Chief of Staff] called Dr. Simpson to give him a “heads-up” about the Credentials Committee’s concerns about his application for medical staff privileges. Eric Miller explained to Simpson that if his application were to be denied, it would have to be reported to the National Practitioner Data Bank. Eric Miller outlined some of the Committee’s concerns, including Simpson’s employment and education history, the need to take an oral exam to obtain licensure from the state of Wisconsin, the two malpractice lawsuits, and interpersonal communications. Eric Miller wanted to give Simpson an opportunity to withdraw his application and avoid the risk that a denial would have to be reported to the National Practitioner Data Bank.

* * *

Dr. Eric Miller accused him of “disruptive behavior,” referring to his interaction with [the CEO] when he attempted to get his sign-on bonus. Eric Miller told Simpson that he would have expected an applicant to be on his “best behavior” and more “collegial” during the pendency of his application for medical staff privileges. Simpson suggested that [the hospital] hire him on a probationary status to see how he would do if Eric Miller was concerned that he was disruptive. Eric Miller responded that they had had some “bad actors” in the past, and it was easier not to hire a bad actor than to get rid of one. Simpson also stated that Eric Miller said he wished Simpson well in finding a position that was a “better fit.”

* * *

We agree that Dr. Simpson has suffered an adverse employment action. To establish an adverse employment action, “a ‘plaintiff must show that a reasonable employee would have found the challenged action materially adverse.’” A reasonable physician would have found the threat that his application for privileges would be rejected and that the rejection would have to be reported to the National Practitioner Data Bank to have been materially adverse. While an applicant who voluntarily withdraws an application cannot state a prima facie case of discrimination, Dr. Eric Miller’s warning indicated that it would be futile for Simpson to maintain his application. The writing was on the wall. In essence, viewing the facts in the light most favorable to Simpson, he was compelled to withdraw his application for privileges before the Credentials Committee voted on it; thus the withdrawal does not undermine his prima facie case.

It is clear that, based on the evidence at hand in the Simpson case, the Seventh Circuit believed that the Chief of Staff had not only educated Dr. Simpson about the credentialing process, the concerns with his application, and the consequences of any potential denial – but, also had impressed on Dr. Simpson that his application would, in fact, be denied.

So, what can be learned from this opinion? First, always have more than one person present if you are going to have this sort of discussion with an applicant. That way, you won’t run into a “he said – she said” type of situation.

Secondly, always document these conversations. Documentation serves as great evidence of what was really said years later, when memories have faded. A good way to create the necessary documentation is to follow up in writing, with a letter to the applicant, thanking him or her for talking with you and then outlining briefly the content of your discussion.

Third, never imply or express that the outcome of a credentialing matter has been decided when it has not. Dr. Simpson came away from his conversation with the Chief of Staff believing that he had been told that his application would be denied and he would be reported to the Data Bank, so it would be better for him to go somewhere else where he could fit in better. This is despite the fact that his application was still on hold at the Credentials Committee level of review (it was incomplete due to missing pieces of information). And, though there were a number of unresolved red flags that were part of his application, there was no reason, at the time the Chief of Staff called him, for anyone to conclude that Dr. Simpson would complete his application sufficiently to have it processed or, in the event that he did complete the application, that it would be denied.

Fourth, to make sure that you choose your words carefully and don’t give the wrong impression, prior to having this type of meeting with an applicant, consult with hospital legal counsel and other medical staff leaders involved in the credentialing process. Then, based on those conversations, create a checklist of items to be discussed with the applicant and use that checklist as the talking points for your conversation. Finally, have legal counsel review any follow-up letter, to be sure that any points of confusion are ironed out in that letter. That way, everyone can be clear that a “heads-up” conversation is just that – a heads-up to the applicant about the current status of his or her application, the immediate next steps in the process, and the details of the credentialing process that lies ahead, including any possibly unexpected consequences (such as reporting to the NPDB).

March 12, 2015

Posted on by hortyspringer

QUESTION:    We just received an application for privileges from a nurse practitioner. As part of her application, she submitted a copy of her “Collaborative Practice Agreement” which stated that “the intent of this document is to authorize the nurse practitioner to practice” at various sites, including our hospital. This doesn’t seem right to us. What can we do?

ANSWER:    In most hospitals, advanced practice registered nurses and physician assistants (advanced practice clinicians) have become an integral and invaluable part of the treatment team. However, there continues to be challenges in credentialing and privileging advanced practice clinicians created by differing standards, expectations, and training.

As with all practitioners, you should establish threshold qualifications for advanced practice clinicians.   We recommend that you develop these qualifications in advance and include them in your medical staff credentials policy.   Typically, threshold qualifications will require evidence of a Collaborative Practice Agreement (for advanced practice nurses) and a Supervision Agreement (for physician assistants).

Specific education, training and experience criteria can be included in the delineation of privileges (“DOP”). The DOP should also address exactly what the advanced practice clinicians are permitted to do in the hospital. It is a good idea to address the role of advanced practice clinicians in consultations, emergency on-call coverage, calls regarding their collaborating or supervising physician’s hospitalized inpatients, daily inpatient rounds, and orders. In all of these areas, medical staff leadership should recommend, and the hospital adopt, standards that best meet the needs of patients treated at the hospital.

Importantly, in establishing threshold qualifications, and in developing the DOP, you will be guided by the relevant licensing statutes. However, it is important to remember that even if the licensing statute allows an advanced practice clinician broad authority to practice, the hospital can impose a more limited scope of practice. The same is true for the Collaborative Practice Agreement and the Supervision Agreement. These documents may be drafted as broadly as legally permissible, but that does not mean that the hospital must allow the same broad practice in its acute care setting.

Finally, consistent with federal and state law, the hospital cannot allow the Collaborative Practice Agreement (or the Supervision Agreement) to “authorize” practice in the hospital. That authorization can only be granted by the Board of the hospital following a full and complete review and a recommendation by the Medical Executive Committee. In this particular case, you would be well advised to inform both the nurse practitioner and her collaborating physician that any language “authorizing” practice in the hospital should be stricken from the Collaborative Practice Agreement.

For more information about advanced practice clinicians, Join Dan Mulholland and Charlotte Jefferies on March 19-20, 2015 in Orlando for the Advanced Practice Clinicians Workshop.

 

March 5, 2015

Posted on by hortyspringer

QUESTION:          We employ physicians through an entity affiliated with the hospital.  As a part of the employment process, we ask certain medical questions and conduct medical examinations after an offer of employment has been made. This process generates documentation and information on these physicians’ medical conditions. How should we maintain that documentation and information?

ANSWER:        With employed physicians, Title I of the Americans with Disabilities Act (“ADA”) comes into play. Under the ADA, any medical information obtained through medical examinations or disability-related inquiries has to be maintained separately and confidentiality. As a part of this requirement, the Equal Employment Opportunity Commission (“EEOC”) has advised that medical information cannot be kept in an employee’s regular personnel file. Specifically, the EEOC instructs:

Medical information must be collected and maintained on separate forms and in separate medical files. An employer should not place any medical-related material in an employee’s non-medical personnel file. If an employer wants to put a document in a personnel file, and that document happens to contain some medical information, the employer must simply remove the medical information from the document before putting it in the personnel file.

Accordingly, any information obtained as a result of medical inquiries or examinations in the employment process must be kept confidentially and separately from routine employment files. We recommend that the same procedure be adopted for the medical staff process and any medical information that is acquired through that process. More and more hospitals are employing physicians and, typically, the employment contracts are conditioned on appointment to the medical staff and grant of clinical privileges. Although there has not been a case commenting on this issue, there is a risk that the courts could apply the confidentiality requirements of Title I of the ADA to the credentialing process under these circumstances. Further, some courts have given the term “employee” under federal discrimination laws, including the ADA, an expansive interpretation to include members of the medical staff that do not have an employment relationship with the hospital because of the amount of “control” (for example, through the peer review process) the hospital exercised over the physician’s practice. Finally, maintaining health information in a separate file helps reinforce the idea that health concerns will be addressed in a confidential and supportive manner. Thus, we recommend maintaining this information separately from routine employment and credentialing files for both employed physicians and those who are solely medical staff members and granted clinical privileges.