QUESTION:    Two years ago, we terminated an employee for violating the hospital’s privacy policies.  The former employee has now obtained an employment offer within our community and, as part of his new employment, would need to have remote access to our health system’s EMR.  Is it lawful to allow access, considering the circumstances pursuant to which the employee was terminated?  Should we allow access?  What are the risks?

ANSWER:    Access to a health care organization’s electronic medical record system is a courtesy and privilege and your organization has no obligation to grant “second chance” access to anyone whose access has been previously terminated for non-compliance with the rules governing access to the system.  That being said, there is no legal prohibition to reinstating access for such individuals.  Accordingly, it is within your organization’s discretion to decide whether it will process requests for reinstatement of access and, if so, what process it will use to determine whether reinstatement will be granted and any terms or conditions of reinstatement.  Here are a few things you may wish to consider:

• You may wish to update your internal policies and procedures to state whether requests for reinstatement of access will be considered and, if so, how they will be processed.

For example, consider adding language such as the following:  “if access to the HIT system has been previously terminated for an individual for any reason, that individual may request reinstatement of access by submitting a written request to the privacy officer, who shall have sole authority to determine whether to grant reinstatement.  Requests for reinstatement of access will be considered on a case-by-case basis.  Access to the HIT system is a courtesy and privilege.  There is no right to access.  Accordingly, the privacy officer’s decision regarding reinstatement shall be final, without any right to appeal or other procedures.

• If you decide to consider requests for reinstated access, it is probably best to consider them on a case-by-case basis, rather than adopting a one-size-fits-all process (e.g., “reinstatement will be granted if at least two years has passed since the violation/termination” or “if the underlying violation was determined to be intentional, rather than reckless or negligent, then the individual is ineligible to request reinstatement of access”).

Case-by-case consideration of requests will give your organization more flexibility to consider all of the facts surrounding the prior violation, including the amount of time that has passed, the nature of the violation, whether the employee admitted the violation at the time and took full responsibility, and any mitigating factors (such as the requestor’s subsequent completion of privacy-related education or subsequent work in a health care organization without incident).

Further, you may wish to consider the benefits to the community of granting reinstatement of access (for example, is this a doctor who practices in a needed specialty or a nurse developing a care coordination network for the community’s elderly population?).

In any case where the decision is made to grant reinstatement of access, be sure to document the reasons that support that decision.  This can serve as evidence of your reasoning should there ever be an issue (such as a DHHS surveyor questioning your judgment).  Further, keeping a written record of such decisions will probably help you to be more consistent when making those decisions.  Finally, should the privacy officer’s decision ever be challenged as unfair (i.e., “you reinstated her access, but won’t reinstate mine”), the documentation of why access was reinstated in a prior case can help to demonstrate the justification for any disparity.

• If you choose to grant access to individuals who have previously demonstrated their unwillingness or inability to abide by your privacy rules, consider taking steps to limit your risk.

For example, you may choose to consider requests for reinstatement of access only if the individual submits evidence of having completed substantial (as defined by your organization) re-education or re-training in medical ethics and/or patient privacy.

In addition, you may wish to require the individual – and/or his or her prospective employer – to sign an agreement to indemnify and defend the organization should the individual violate any of the organization’s privacy or security policies.

The agreement should make it clear that the individual will be responsible not only for damages arising from any lawsuit, but also any fines or penalties imposed by the federal or state government, the costs of any breach notifications deemed necessary by the organization, any costs associated with investigation of the privacy or security violation (such as audits by computer experts), and any mitigation deemed necessary by the organization (for example, the purchase of identity theft insurance for patients affected by the violation).

If you are going to request the prospective employer to take responsibility for any future violations by the individual requesting reinstatement, that employer may wish to obtain additional information from your organization regarding why access is not available automatically to the individual in question.  Note that you will want to be careful when sharing information with the prospective employer to avoid any allegations by the former employee that you defamed him/her or violated his/her privacy.  Accordingly, prior to sharing any information about the reasons the individual is not able to obtain access to your EMR without special consideration, you should first have the individual sign an authorization form that specifically authorizes you to speak with the prospective employer and to disclose full details of the circumstances surrounding the individual’s termination from your organization.  That form should also include broad language releasing your organization from liability for any information you share and should state that the individual agrees not to sue you (and will pay your attorneys’ fees and costs if he or she sues you, despite having signed the form, and does not prevail).

Finally, if you choose to grant reinstated access, be sure to limit such access to the minimum necessary and take other practical steps to limit the risk of future violations.  For example, if access is being reinstated to allow a nurse in the community to provide care coordination services for elderly patients with multiple chronic conditions, and if your EMR has the technical capability, consider limiting access to the records of patients over the age of 65.  Also consider setting up regular audits of the individual’s access to your EMR (for example, as a condition of access, you may require the care coordinator to have her employer submit on a weekly basis a list of all patients the coordinator is responsible for.  The HIT department can then run an audit of all EMR records accessed by the care coordinator and compare it against the list to verify appropriate access.  Any names which do not match should be further audited to determine whether there was an appropriate reason for access).

 

QUESTION:    Over the last several months, one of our surgeons has had three cases where patients had very bad outcomes.  It looks like a combination of bad judgment and poor technique.  Our Chief of Staff and Chief Medical Officer suspended the physician’s privileges and decided to send the three cases out for an external review.  We are a little unclear about whether the suspension automatically triggers an investigation or whether the investigation should take place after we get the report back from the external expert.

ANSWER:    It is important to keep in mind that precautionary (or summary) suspensions can be tricky and should be imposed only when absolutely necessary to protect patients from potential imminent danger.  Before imposing a precautionary suspension, whenever possible, we strongly recommend that the leaders meet with the physician, explain to the physician the basis for the concerns, and give the physician an opportunity to respond.

At this meeting, the leaders can also offer the physician an opportunity to voluntarily and temporarily agree to refrain from exercising clinical privileges in lieu of the suspension.  This option will ensure patient safety and at the same time it is a bit of a face-saving way out for the physician.  In fact, this option is so important that it should be built right into your bylaws.   Even if your bylaws don’t provide for this option and even if the suspension has already been imposed, it is not too late to revisit this alternative.  Your Chief of Staff and CMO could convert the suspension to a voluntary agreement not to practice if the physician is willing to do so.

Remember, too, whether there is a voluntary agreement not to practice or a suspension, the agreement or the suspension should be limited to the clinical privileges about which the leaders have a concern.   If there are no concerns about the physician’s consultative or medical privileges, there is no reason to limit or restrict those privileges.

Now onto the question that you asked, the imposition of a precautionary suspension does not automatically trigger an investigation.  While there is almost always a need for additional fact?finding after a precautionary suspension has been imposed, that fact-finding can be done without the need to commence an investigation.

If the results of the external review confirm your concerns about bad judgment and poor technique, then an investigation may be in order.  The results of the review can be used in the investigation, but don’t forget that as part of the investigation other relevant documents should be reviewed and individuals with relevant information should be interviewed.

Precautionary suspensions are an important tool to protect patients, and others, but they must be used carefully, following the appropriate procedure and as a last resort.  Join Susan Lapenta and Lauren Massucci for Precautionary Suspensions: Follow Your Bylaws and Proceed with Caution.  The audio conference will be held on June 10, 2014 from 1:00 to 2:30 p.m. Eastern Time.

 

Question:

Our Health System has agreed to add an independent community hospital to the System.  If the Health System Parent Corporation (“HSPC”) becomes the new parent corporation for that hospital, would the HSPC assume the hospital’s liabilities and tax-exempt bond obligations?  Would there be a different answer if the HSPC and the hospital merged?

Answer:

The Definitive Agreement between the HSPC and the hospital will describe whether the new parent corporation has taken on the hospital’s liabilities and bond obligations.  Simply becoming the new parent corporation in and of itself does not make the parent company liable for the hospital’s liabilities and debts.  That obligation has to be taken on in writing by the parent corporation – in the Definitive Agreement – and with at least one other signed document by which the HSPC agrees to be liable for the hospital’s tax-exempt bond obligations.

A merger of these two entities, however, produces a different story.  The hospital would merge with the HSPC, with the HSPC being the surviving corporation.  With that merger, the HSPC has taken on all of the liabilities, debts and obligations of the hospital which has now merged into it.  Can the HSPC do that merger?  One answer:  not if the HSPC’s own bond documents prohibit the HSPC from assuming the debt of the other hospital’s bond obligations.

To learn more about the ins and outs of hospital mergers and affiliations and the choices they raise, please join us for the HortySpringer workshop “Mergers, Acquisitions, Affiliations or Independence” on May 1-2, 2014 (afternoon session on May 1 and morning session on May 2) at the JW Marriott in Atlanta.

Question:

We now employ quite a few physicians.  With so many physicians, we cannot customize each employment agreement, but we want them to be aware of the conduct that we expect of each of our employed physicians.  Do you have any suggestions?

Answer:

Yes we do.  But first, an employer must begin its analysis with the employment agreement.  We recommend that you review your current employment agreements to make sure that they require each employed physician to comply with the employer’s policies.  Most do and, if not, this term should be included in all physician employment agreements.

Then we recommend that the employer adopt a Professionalism Policy that states that communication, collegiality and collaboration are essential for the provision of safe and competent care and that all employed physicians must treat anyone with whom they interact with respect, courtesy and dignity.  The Professionalism Policy should then provide examples of inappropriate conduct ranging from abusive or demeaning behavior or comments, to sexual harassment.

This policy is separate and apart from any Medical Staff policy.  The employer’s Professionalism Policy should be adopted and administered by the Physician Group.  The policy should be discussed with the physicians prior to its adoption and then, after adoption, made available on the employer’s intranet.  This process will provide the employed physicians clear notice as to the type of behavior that the employer expects of its employed physicians and the behavior that will not be tolerated.

The policy should then describe the collegial process that the employer will follow to address instances where the conduct of an employed physician fails to comply with the policy.  We have found that between the notice of what is expected and a physician-driven, collegial process, most instances of unacceptable behavior will be either avoided or corrected in an expeditious manner.  However, the policy should also make it clear that violating the policy, or not responding to the Group’s collegial efforts, will be grounds for termination of employment.  That said, just as we have found in the medical staff context, clear policies that are physician-centered and enforced in a reasonable manner will minimize the instances where an employer has to take the drastic step of terminating a physician’s employment.

Need guidance employing physicians? Join HortySpringer attorneys Henry Casale, Rachel Remaley & Charlie Chulack for the Institute on Employed Physicians and Their Impact on the Medical Staff.

Question: May one practitioner authenticate a verbal order that was issued by another practitioner?  If so, can an Allied Health Professional (“AHP”) be among those who authenticate verbal orders issued by someone else?

Answer: One practitioner may authenticate the verbal orders of another practitioner as long as the authenticating practitioner “has knowledge of the patient’s hospital course, medical plan of care, condition, and current status.”  Also, the bylaws, policies and rules and regulations of the hospital must not prohibit one practitioner from authenticating the verbal order of another practitioner.

A final regulation addressing this topic was published by the Centers for Medicare & Medicaid Services (“CMS”) on May 16, 2012.  This final regulation states:

All orders, including verbal orders, must be dated, timed, and authenticated promptly by the ordering practitioner or by another practitioner who is responsible for the care of the patient only if such a practitioner is acting in accordance with State law, including scope-of-practice laws, hospital policies, and medical staff bylaws, rules, and regulations.

 42 C.F.R. §482.24(c)(2) (emphasis added).  Thus, CMS allows one practitioner to authenticate verbal orders of another practitioner if the authenticating practitioner:  (1) is “responsible for the care of the patient” and (2) acts in accordance with law and hospital policy.

CMS has provided additional guidance about these issues in the Interpretive Guidelines to the Medicare Conditions of Participation, including guidance on AHPs.  CMS states:

In some instances, the ordering practitioner may not be able to authenticate his or her verbal order (e.g., the ordering practitioner gives a verbal order which is written and transcribed, and then is – off duty for the weekend or an extended period of time).  In such cases…it is acceptable for another practitioner who is responsible for the patient’s care to authenticate the verbal order of the ordering practitioner….

• All practitioners responsible for the patient’s care are expected to have knowledge of the patient’s hospital course, medical plan of care, condition, and current status.

• When a practitioner other than the ordering practitioner signs a verbal order, that practitioner assumes responsibility for the order as being complete, accurate and final.

• A qualified licensed practitioner, such as a physician assistant (PA) or nurse practitioner (NP), may authenticate a physician’s or other qualified licensed practitioner’s verbal order only if the order is within his/her scope of practice and the patient is under his/her care.

Medicare State Operations Manual, Appendix A (emphasis added).

Also, both state law and the Medical Staff Rules and Regulations and policies of the hospital should be consulted to determine if they permit one practitioner to authenticate the verbal orders of another according to the conditions outlined above.

Please join us at the Advanced Practice Clinicians Workshop on May 1-2, 2014 in Atlanta to discuss additional issues related to the evolving role of non-physician practitioners.

Question: How do hospitals and health systems handle the issue of board chair succession – that is, do they normally impose term limits for their board chairs and other officers or allow them to remain in office indefinitely?

Answer: Based on our experience, there is no standard mechanism used by hospitals or health systems to address this issue. A substantial minority provide for some automatic succession to the board chairmanship.  The most common mechanism is an informal process where officer terms are limited to two years and it is presumed (although not automatic) that the vice chair will become the chair at the conclusion of the chair’s current term.  On the other hand, some hospitals specifically do not provide for term limits for their officers, so that once a chair is selected, he or she will often remain in that position for several years until a decision is made to step down or the individual leaves the board.

There are some merits to not imposing term limits.  The board chair and the CEO can get more familiar with one another and there is less of a risk of losing continuity in leadership because of constant changes in the chair position. On the other hand, not providing for some change in the chair position can lead to a situation where “new blood” might be needed and it would be practically difficult to ask the chair to resign and move out of that position without creating some tension on the board. On balance, it probably makes sense to provide for automatic rotation through officer positions, but to allow officers, including the board chair, to serve two consecutive two-year terms, which would ensure a longer tenure although not an indefinite appointment.

Question: A physician at our most recent Complete Course for Medical Staff leaders asked:  can mid-level professionals (PAs and APRNs) serve on peer review committees?

Answer:  Under most state peer review protection statutes, Advanced Practice Nurses and Physician Assistants may be appointed to serve on Medical Staff peer review committees, and their service would not waive the state peer review privilege.  They may be able to provide valuable insight.  For example, the Credentials Committee may benefit from their knowledge of training programs.  Of course, they are subject to the same confidentiality considerations as physician members.

Join us for our workshop in Atlanta on May 1 (Thursday afternoon) and May 2 (Friday morning) to discuss the expanding role of these Advanced Practice Clinicians and how physicians, as leaders of the team, can design how the care team will function, how these professionals can best be oriented to hospital practice and much more.

Question: A physician on our medical staff, who has a history of disruptive behavior, just filed a complaint against our Chief of Staff.  According to the complaint, the Chief of Staff was “demeaning, condescending, and degrading” during a meeting that was supposed to be a collegial intervention.  He claims the Chief of Staff violated our Code of Conduct Policy and we need to take action, pronto.  It was just the two of them at the meeting, so it’s a classic “he said, she said.”  What do we do?

Answer: There are a couple of important lessons here.  Let’s start with the lesson that the collegial intervention should never be one-on-one when you are dealing with a physician who has a history of behavioral problems.  It was predictable that the physician would try to deflect attention away from himself and onto someone or something else.  Do yourself a favor, always have at least one other person present when you have a collegial intervention with a physician who has a history of engaging in “behavior that undermines a culture of safety” or, as my colleague likes to say, “behavior that an adolescent does.”  The opportunity to make up what happened, including accusations about inappropriate conduct on the part of the Chief of Staff, is greatly reduced when there is a witness.

The second lesson is that complaints or concerns raised by the physician cannot be ignored even if you think there is no substance to them.  Ignoring concerns will come back to bite you and it may be in the form of a whistleblower lawsuit.  (And we are seeing more and more whistleblower actions.)  At the heart of these actions is always an allegation that the physician raised concerns about quality or safety, that the physician was ignored and that the physician was subsequently disciplined for raising the concerns.

So even if you are confident the Chief of Staff would never act inappropriately, follow your Code of Conduct Policy in reviewing the complaint.  This means you should meet with the complaining physician and get as many details as possible and then meet with the Chief of Staff.  If there was an inappropriate interaction, address it.  If the complaint was fabricated, that should be considered a violation of the Code of Conduct.

And the final lesson is to make sure you document the collegial intervention.  Concurrent documentation that tells what you did, how you did it, and why you did it will go a long way if there is either an internal challenge or a legal challenge.  The documentation is your opportunity to tell your side of the story in a thoughtful, detailed, organized way.  It is amazing how often this piece of the puzzle is missing or deficient in court cases.

Join us for The Complete Course for Medical Staff Leaders for a more in-depth review of collegial intervention and tips on how to deal with physicians who engage in disruptive behavior.

Question: We are struggling with how to do FPPE to confirm competence for members of our Medical Staff who have privileges solely for coverage purposes and thus have very little activity here.  We need them on the Medical Staff and they have to have privileges so a Medical Staff category with appointment only doesn’t work.  Any suggestions?

Answer: You are not alone!  Many Medical Staffs are grappling with the same issue.  The simplest, most effective solution we have found is to define the FPPE requirements for those members as 100% retrospective review of cases in which they are involved – providing care, consultations, etc. – up to a certain number per year (typically four or five).  That requirement does not prove to be burdensome to implement because the numbers are so small.

For practical, effective solutions to your FPPE, OPPE and peer review dilemmas, join Paul Verardi and Phil Zarone for The Peer Review Clinic in San Francisco, April 10-12.

Question: Our hospital wants to provide premium assistance for uninsured patients who seek treatment at our hospital (but are not eligible for Medicaid in our state) to purchase a qualified health plan (“QHP”) on the health insurance exchanges.  Are we allowed to offer this type of premium assistance?

Answer:  Before doing so, your hospital would have to take into account a number of federal laws, such as the Anti-Kickback Statute, to be sure that the premium assistance does not violate those laws.  For example, the question of whether premium assistance for QHPs violates the Anti-Kickback Statute depends on whether QHPs are federal health care programs.  These questions have suffered from less than clear guidance in the latter part of 2013.  The issue first gained attention when Congressman Jim McDermott sent a letter to Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services (“HHS”), asking “whether ‘qualified health plans’ represent ‘federal health care programs’ for purposes of participating in the federally-facilitated exchanges and the state-based exchanges….”  Congressman McDermott’s question was based on some individuals being eligible to receive premium tax credits and cost?sharing subsidies to enable them to purchase health insurance on the exchanges.  According to Congressman McDermott, the question of whether these government contributions qualify the exchanges and/or QHPs as federal health care programs has not been answered by HHS. 

In a reply letter dated October 30, 2013 from Secretary Sebelius to Congressman McDermott, the Secretary wrote that:

The Department of Health and Human Services does not consider QHPs, other programs related to the Federally-facilitated Marketplace, and other programs under Title I of the Affordable Care Act to be federal health care programs.  This includes the State-based and Federally-facilitated Marketplaces, the cost?sharing reductions and advance payments of the premium tax credit; Navigators for the Federally-facilitated Marketplaces and other federally funded consumer assistance programs; consumer?oriented and operated health insurance plans; and the risk adjustment, reinsurance, and risk corridors programs.

As such, Secretary Sebelius’s response indicates that premium assistance would not violate the Anti-Kickback Statute, because the plans purchased on the exchanges are not considered “federal health programs.”  However, her response does not fully address other federal laws that this type of premium assistance may implicate.

On November 4, 2013, HHS Centers for Medicare & Medicaid Services (“CMS”) posted a Q&A on its website.  The question asked whether hospitals, other health providers, and other entities were “permitted to make premium payments to health insurance issuers for qualified health plans on behalf of enrolled individuals.”  HHS answered as follows:

[HHS] has broad authority to regulate the Federal and State Marketplaces (e.g., section 1321(a) of the Affordable Care Act).  It has been suggested that hospitals, other health providers, and other commercial entities may be considering supporting premium payments and cost-sharing obligations with respect to qualified health plans purchased by patients in the Marketplaces.  HHS has significant concerns with this practice because it could skew the insurance risk pool and create an unlevel field in the Marketplaces.  HHS discourages this practice and encourages issuers to reject such third party payments. HHS intends to monitor this practice and to take appropriate action, if necessary.

It should be noted that CMS’s Q&A is not the law and if CMS wanted to enforce its opinion expressed in the Q&A, it would have to go through the rulemaking process by first issuing proposed regulations that solicit feedback from the public and then finalizing the regulations after considering the feedback.

Nonetheless, some hospitals are trying to minimize the risk of “self-dealing” by using independent third parties to provide premium assistance.  For example, the University of Wisconsin Hospital and Clinics donated $2 million to a local charity to provide assistance in purchasing QHPs on the health insurance exchanges rather than providing the money directly to individuals in need of such assistance.