Question: We have an applicant for initial appointment who is well known in the medical community and highly disliked.  Information that we received in the course of routine verification of this applicant’s hospital affiliations and peer references indicated that he has poor interpersonal skills, to say the least.  Thus far, we have communicated with five people, four of whom declined to recommend the applicant and described him as “manipulative” and “disruptive.”

We decided to follow up with the applicant to get his reflections on why his peers would speak so negatively about him.  We sent him a letter, to which he replied that he “has no idea why others would perceive me in this way” and believes that he is “collegial and respectful at all times, though I do hold others to the same high standards that I hold myself.”

We learned that shortly after receiving our inquiry, the applicant contacted the references he listed on his application, as well as the department chair where he currently maintains privileges, to accuse them of speaking poorly of him and to threaten to sue them for defamation.

Should we deny his application based on this retaliatory conduct?

Answer:

You certainly have a dilemma on your hands, but denying the application is not the only – or best – way of managing that dilemma.  We recommend the following steps to address this application:

1. Your situation highlights the importance of Bylaws language which defines when an application becomes complete.  We recommend language stating that every applicant has the burden of providing a complete application and that an application is complete only when all questions on the form have been answered, all supporting information has been verified (including responses from references), and all concerns have been resolved.  Incomplete applications should not be “denied,” but, instead, deemed ineligible for processing until such time as they are completed.

   In your case, the application is incomplete due to unresolved concerns raised by a number of references – concerns that were not adequately addressed by the applicant’s brief response.  We recommend that you treat the application as incomplete and do not move it forward to the next step of the credentialing process until it is completed.

2. We recommend that you inform the applicant that his application is incomplete (and why) and state that you will need to obtain additional information to resolve the concerns that have been raised before his application can be completed and, in turn, processed further.  You will probably want to follow up with those who have already provided negative information about the applicant and, in addition, contact a few others who would have experience working closely with him (e.g., a nurse supervisor and/or the department chair and administrator of a hospital where he has previously worked).  You may take this opportunity, while you are communicating with the applicant, to ask him to identify additional individuals who would have information bearing on his character and reputation.
3. Finally, the applicant’s actions – in contacting references about their statements and threatening them with defamation litigation – are disruptive and undermine the credentialing process.  You should follow up with the applicant to specifically address this conduct:

• Alert the applicant, in no uncertain terms and in writing, that his conduct is unprofessional, is disruptive, and undermines the efforts of the leadership to promote patient safety through vigorous credentialing.

• As appropriate, you may cite to your professionalism policy or code of conduct.  They should list as “disruptive” or “unprofessional” any retaliatory conduct against someone who has provided information about an applicant or a member of the medical staff.  If you do not already have such a policy, consider adopting one soon.  Of course, badgering and threatening references are disruptive even in the absence of such a policy, but it is nice to fall back on concrete policy language when trying to dissuade unprofessional behavior.

• You should also cite to your Bylaws or Credentialing Policy to make it clear that the applicant bears the burden of ensuring that his application becomes complete, including ensuring the response of any references who are contacted and the resolution of any concerns that have been raised.  The applicant should be informed that if any references refuse to respond to your requests for information, as a result of his retaliatory and threatening conduct, the application will remain incomplete and ineligible for processing.

• Further, you should also let the applicant know that even if his application is able to be completed, despite his conduct, his unprofessional behavior will be one of the factors taken into consideration when his credentials are reviewed (after all, adherence to ethical principles, good character, etc. are factors to be considered for all applicants for medical staff appointment).

Question: Recently, there have been two horrific cases involving brain dead hospital patients, and the enormous trauma they caused.  One matter involved a young teenager whose severe sleep apnea surgery went terribly wrong; the other, a brain?dead woman who was pregnant.  What is brain death and how is it different from the traditional understanding of death?  Given both patients were dead, what were the controversies about?  For my hospital, what kinds of difficulties might we encounter with families of brain dead patients?

Answer: The traditional definition of death involves the cessation of respiratory function, heartbeat, and perhaps some indications of a lack of central nervous system activity (lack of pain indicators, no dilation of pupils).  But medical technology produced respirators that kept the respiratory function going, and cardiac pumps that assisted heart activity.  While the body was being kept alive by these life-supporting measures, the individual also had irreversible cessation of all functions of the entire brain, including the brain stem.  If there was clear proof of an irreversible cessation of brain functions, was that also to be within the definition of “death,” even though traditional indicators of life are being artificially maintained?

That was the question wrestled with by physicians, ethicists, legislators and policy-makers and others many years ago.  The first widely publicized criteria for “brain death” as within the legal definition of death came from the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death back in 1968.  The next most significant report came from the President’s Commission for the Study of Ethical Problems and Medicine and Biomedical and Behavioral Research published back in 1981.  The President’s Commission released a set of guidelines on the diagnosis of death, including brain death.

Since then, all states have adopted brain death as part of the legal definition of death under their state law.  This was pioneered by a recommended uniform statute on the definition of death provided to every state to enact as presented or to make any modifications that the state saw fit.

In other words, the understanding in the legal and the health care field of brain death has been with us for several decades.  But it is still not uncommon for grieving families or loved ones to struggle with or even reject the concept of brain death.  For them, the patient is still breathing and her heart is still beating ? with the assistance of life support.

This can certainly create personal tragedy and trauma.  In one matter in which we assisted, a patient’s father literally would not allow hospital staff to enter the patient’s room – his daughter’s – if the staff were going to discontinue the life-supporting equipment and measures.

These can be very tragic cases.  But there are clear legal and ethical principles that once a patient is dead, there is no longer a duty or reason to maintain any type of life-sustaining treatment. The challenge for a hospital can be how to help loved ones accept the difficult situation and grieve for the person lost and loved.

While both of these brain death cases received national attention, hospitals today certainly experience far fewer patient brain death controversies than years ago.  Dilemmas concerning end-of-life care decision-making are more common in other areas:  the terminal patient who refuses care; the patient in a persistent vegetative state with a family of decision-makers torn as to continue or end the life-sustaining measures; a family directing that treatment be given for an end-of-life patient, but treatment that both the attending physician and the hospital feel would be futile.  All hospitals address these difficult situations at one time or another, and should have both policies and an understanding as to how to deal with these difficult patient situations on the legal, ethical and human fronts.

For a discussion of the legal principles involved in these situations, please join Alan Steinberg & Phil Zarone for an audio conference on February 26, End-of-Life Decision-Making: The Governing Legal Principles.

Question: Should employed physicians be allowed to serve on our health system board?

Answer: From the standpoint of governing a health care system, it is very important to have practicing physicians serve on the Board.  In the case of a highly integrated health care system, those physicians would inevitably be selected from the ranks of system-employed physicians.  The fact that such a physician trustee would also be employed would not, in and of itself, create an impermissible conflict.  However, if a physician (or any other employee) had administrative responsibilities, the physician would be confronted with a conflict of interest if he or she also served as a trustee.  As an employee, the individual would directly or indirectly report to the CEO.  However, as a trustee, the individual would also have fiduciary oversight responsibility that would include overseeing the performance of the CEO.  In such a case, the individual would either have to declare a conflict with respect to any Board activity relating to the CEO or, for that matter, any action based on the recommendation of the CEO, since the individual’s employment relationship could be affected by the decision.  In the alternative, the individual would take part in those activities and create a situation that could possibly undermine the CEO’s authority over other administrative employees.  Neither alternative would be good for the employee, the CEO, or the organization.  Therefore, in the interest of avoiding such a conflict and assuring better governance practices, we would recommend that only employed physicians in active full-time clinical practice who do not have any substantial administrative or executive responsibilities be eligible to serve on a health system board.

Question: Decriminalization of marijuana wasn’t the only topic of conversation in Naples last week!  There was also a lot of discussion about Patient Safety Organizations (“PSOs”) during The Credentialing Clinic, much of it focused on the importance of the privilege that applies to what is known as “patient safety work product.”  The benefit of this privilege was new to a lot of our registrants (as were the weaknesses in state peer review statutes, which are generally not recognized in federal courts), and led a number of individuals to ask us “how do we get this protection for our credentialing and peer review documents?”

Answer: Putting your hospital in a position to take advantage of the protections provided for under the Patient Safety and Quality Improvement Act (“PSQIA”) requires several steps.

First, your hospital must establish a relationship with an entity that has been certified and listed as a PSO by the Agency for Healthcare Research and Quality (“AHRQ”).  Under the PSQIA, such entities can accept quality and safety information from providers, aggregate and analyze that information, and then provide feedback and guidance to help improve quality and minimize patient harm.  Your hospital must also establish a Patient Safety Evaluation System.  Under the PSQIA, a Patient Safety Evaluation System is the protected space where your hospital collects and manages patient safety and quality information. Generally, the patient safety and quality information that is collected and managed in a Patient Safety Evaluation System and flows between your hospital and a PSO, as well as the deliberations or analysis related to the decision to report (or a decision not to report), is considered confidential and privileged Patient Safety Work Product.  It is important to develop a well-defined Patient Safety Evaluation System, as documentation of such a system will help provide supportive evidence to a court when claiming the privilege.

After the groundwork is laid for the Patient Safety Evaluation System, your organization can then begin to compile and analyze information under the protections of the PSQIA.  In most cases, the privilege for Patient Safety Work Product is much stronger than state peer review privileges.  For example, most employment discrimination claims are brought in federal court.  Since federal courts do not recognize state peer review privileges when a claim of discrimination is made under a federal law, a cardiologist who is challenging a professional review action based on a claim of discrimination could potentially obtain the credentialing and peer review files for every other cardiologist on your staff to support her argument of disparate treatment.  However, if this information qualified as Patient Safety Work Product, the confidentiality and privilege protections under the PSQIA may prevent any such information from being admitted as evidence in any state or federal proceeding.

This is great news for those engaged in credentialing and peer review and we invite you to join us at our next Credentialing Clinic in San Francisco to learn more about how a relationship with a PSO can help provide added protection to the credentialing and peer review information in your organization.

Question: In the movie It’s a Wonderful Life, a young George Bailey (Jimmy Stewart) personally delivered medications from Mr. Gower’s pharmacy to the customers at home.  Fast forward six plus decades, and a modern Mr. Gower III has contacted your hospital and proposed a similar arrangement.  For the convenience of the hospital’s patients, any e-prescriptions sent to Gower Pharmacy will be delivered by the pharmacy’s delivery man to the patient in the hospital.  Mr. Gower suggests that pleased patients will also think well of the hospital for allowing this service.  Does it make sense for the hospital to accept Mr. Gower’s offer?

Answer: This certainly could be very convenient for a hospital’s patients, and the hospital could enjoy the goodwill it generates.  Imagine, not having to stop off at the pharmacy at all; having all your medications in hand even before you leave the hospital.

But what starts out as a seemingly good idea quickly gets complicated by a number of concerns.  On the regulatory front, how do pharmacy licensing regulations and hospital licensing regulations (including for its own pharmacy) fit together here?  HIPAA questions arise, including that there are any number of incidental disclosures that would be seen by the delivery person.  Risk management probably creates the biggest concerns:  Is the hospital responsible to check the delivery bag, to make sure that the right medication is being delivered?  In the right amount and dosage?  Is the name of the right person on the container?  Do you have to see that the delivery person enters the correct patient room?  What if the patient takes too large a dose in her room, with a bad outcome?  What kind of protocol would have to be written to manage all of this?  The time, energy and staff needed?

Of course, there are other pharmacies in town, and they likely will not be happy with Mr. Gower’s arrangement with the hospital.  Is the hospital trying to steer its patients to Gower Pharmacy?  What’s the hospital getting for that?  Shouldn’t all of the pharmacies have the same delivery arrangement with the hospital?  That means the hospital will have to manage an increasingly large number of medication deliveries, not an easy thing given all the concerns involved.

What started out as a potentially good idea can’t make it over the legal/risk management analysis and implementation hurdles.  That happens sometimes, even to good ideas.

Question: Our employment agreement states that a signing bonus must be repaid on a pro-rata basis if the physician does not remain employed for the initial term of the Agreement.  We have decided to terminate the agreement and the physician is claiming that because we are terminating the agreement we cannot collect this debt.  Have you ever heard of anything so ridiculous?

Answer: Yes, we are aware of claims similar to this one.  In fact, earlier this month, a court decided a similar claim.  (See Sheik v. Grant Regional Health Center (Jan. 3, 2014).)

The employer in that case provided an upfront payment to an employed physician that would be forgiven if the physician continued to be employed for two years.  The agreement also stated that this payment must be repaid if the agreement was terminated during its initial term.  The employer terminated the physician, and then demanded the repayment of the amount due.  The physician refused, claiming that by firing her, the employer rendered impossible her ability to work this amount off.

While her claim was not immediately dismissed by the court, the court eventually ruled that the terms of the Agreement were clear and the reason for termination had nothing to do with her repayment obligation.  So, the court found in the employer’s favor.

Is this case unusual?  Unfortunately, no.  Fortunately, the terms of repayment were clear in the employment agreement.  Was there another way to secure repayment?  We think so.  How?  Please join us at the Institute on Employed Physicians and Their Impact on the Medical Staff on January 23-25, 2014 in Naples, Florida, or on December 4-6, 2014 in New York City to learn how to secure repayment of this type of payment without the need to go to court – and much, much more.

 

Question: We recently sent patient information to the wrong recipient.  Rather than sending a package to our malpractice counsel, we sent it to another hospital across town.  The information in question included CDs with imaging studies and two pages of a radiology report that included the patient’s name and medical record number.  The hospital that received the information tells us that it recognized immediately that the information had been mis-addressed and called us right away.  There were over 100 imaging studies on the CDs.  Do we have to notify the patients of this incident?

Answer: Probably not.  To understand why, it may help to review the HIPAA breach reporting requirements.

In the past, if a patient’s “unsecured” Protected Health Information (“PHI”) (i.e., not encrypted) was improperly used or disclosed, the hospital was required to conduct a “harm analysis” to determine if there was a “significant risk of financial, reputational, or other harm to the patient.”

HHS believed this test made it too easy for hospitals and physicians to avoid notifying patients.  Thus, under the January 25, 2013 final regulation, an improper use or disclosure of PHI is “presumed” to require patient notification unless the covered entity demonstrates there is a “low probability” that the PHI has been “compromised” based on a risk assessment that considers various factors.  This is a lower threshold for patient notification.

In evaluating whether PHI was “compromised,” the new regulation requires hospitals to consider at least the following factors:

(1)        nature and extent of the PHI involved, including the types of identifiers and the likelihood of PHI being re-identified;

(2)        identity of unauthorized person who received the PHI;

(3)        whether the PHI was actually acquired or viewed; and

(4)        the extent to which the risk to the PHI has been mitigated.

Importantly, HHS is not using the dictionary definition in asking whether information has been “compromised.”  Merriam-Webster defines “compromise” to mean “reveal or expose to an unauthorized person.”  The test described by HHS in the new regulation does not simply ask if that information was “revealed or exposed to an unauthorized person.”  Instead, hospitals must consider what PHI was involved, who received that PHI, and the extent to which any risk has been mitigated.

Thus, in some ways, HHS’s new test is not very different from what hospitals have been doing up to this point.  That said, even if the new test is more similar to the old test than HHS would like to admit, HHS did make clear that it expects hospitals to notify patients of breaches more often.  HHS noted that some individuals had interpreted the prior regulation as “setting a much higher threshold for breach notification than we intended to set.”

In the case at hand, the information in question was sent to another covered entity (a hospital) that has an obligation to comply with HIPAA.  In the preamble to the January 25, 2013 final regulation, HHS identified this as a factor that weighs against notification.  (78 Fed. Reg. 5566, 5643 (Jan. 25, 2013)).  Also, the PHI does not appear to be particularly sensitive (though the nature of the imaging tests should be reviewed).  Finally, it does not appear that the PHI on the CDs was even viewed, based on the comments of the hospital that received the mis-addressed package.  Thus, notification of the patients is probably not required.

 

Question:

Under the Affordable Care Act (“ACA”), individuals who sign up on the health insurance exchanges by December 24 will be covered on January 1. 2014.  Does January 1, 2014 have any other significance under the ACA?

Answer:

Yes, but first, a little background.  The ACA created the CMS Innovation Center to test service and delivery models.  The Innovation Center developed the Bundled Payments for Care Improvement initiative (“BPCI”), which includes Models 1, 2, 3 and 4.  The Models link payments for services beneficiaries receive during an episode of care.

Model 1 (participants provide a discount to Medicare from the usual Part A hospital inpatient payments) began for the first set of participants in April 2013, and for the second set of participants on January 1, 2014.

Models 2 and 3 participants (retrospective bundled payment arrangements in which actual expenditures on beneficiaries are reconciled against a “target price” for an episode of care – if a participant is under the target price for a beneficiary, it keeps the difference, but if over the target price, pays the difference to CMS) as well Model 4 participants (a prospective bundled payment arrangement in which a lump sum payment is made to a provider for the entire episode of care) began Phase 2, which is the risk-bearing period, on either October 1, 2013 or January 1, 2014.

Therefore, as of January 1, 2014, all participants in Models 1, 2, 3 and 4 are “live” and in the risk?bearing period.

Question:

Two of our hospital employees have recently separated and the wife, “Sharon,” has filed for divorce.  They don’t work in the same department, so we are not worried too much about the potential for awkward daily encounters, and neither is the supervisor of the other.  But Sharon recently came to HR to file a complaint about her soon-to-be ex?husband, saying that he is harassing her at work in an attempt to reconcile.  Specifically, he appeared in her unit one day to ask for forgiveness on bended knee, sent flowers to her unit (delivered by singing telegram), and posted a flyer on the employee bulletin board, with their wedding picture and the message, “Sharon – you are the love of my life.  You complete me.  Happy Anniversary.”  Marriage seems like a private matter.  Do we need to do anything – or can we let this thing play itself out?

Answer:

You need to do something.  The sort of conduct about which Sharon has complained could constitute sexual harassment if it persists and is unwanted (which it seems to be).

While there is nothing inherently wrong with offering a compliment or asking for a date in the workplace, repeated advances by an individual who has been clearly rejected or told to stop can constitute harassment and result in a hostile working environment for the subject of the advances.  In the situation you face, the unwanted advances are not excused simply because Sharon is still married to the man making the advances.  Once she has made it clear that the advances must stop – and has complained to the hospital – any continuance of that behavior could result in hostile work environment liability for the hospital.

For that reason, it is important to take remedial action aimed at discontinuing the conduct perceived as harassing.  This could be as simple as meeting with Sharon’s husband, explaining the hospital’s sexual harassment policy, reviewing his conduct that violates that policy, and obtaining his written agreement not to engage in any such behavior again in the future.  He should also be cautioned that any retaliation (including confronting his wife about the complaint) would be deemed to constitute additional harassing conduct on his part and is strictly prohibited.

Question:

We have questions. Lots of them. About everything from nurses (and physicians) taking photos of patients on their smart phones, to credentialing locum tenens physicians, to how to go about designing policies for collaboration among  physicians, advanced practice nurses and physicians’ assistants for team-based care.

Where do we get answers?

Answer:

These are among the most common questions we get from clients! Lucky for you, we have answers. Some short answers: taking photos of patients with your smart phone carries a lot of risk, credentialing locum tenens physicians should only be done in very specific circumstances, and a good starting point for addressing the roles of Advanced Practice Clinicians can be a multi-disciplinary work group led by physicians experienced in supervision and collaborative practice.

For more detailed answers, Horty, Springer, & Mattern is happy to announce the schedule for its 2014 Grand Round audio conference series.  Offered on the first Tuesday of every month from 1:00 p.m. to 2:00 p.m. (Eastern Time), this year’s schedule includes the following timely topics:

• When Worlds Collide: HIPAA Privacy in a Tell-All World
  January 7, 2014
• When Malpractice Becomes a Federal Case –
  Defending Medical Necessity Suits
  February 4, 2014
• Informed Consent – Practical Questions and Answers
  March 4, 2014
• Physicians on Boards, in Management and Knowing the Difference
  April 1, 2014
• Advanced Practice Clinicians/Allied Health Practitioners
  May 6, 2014
• Help Is Just a Phone Call Away – Making the Most of Telemedicine
  June 3, 2014
• How Little Is Too Little? Credentialing Low-Volume Providers
  July 1, 2014
• Patient Safety Organizations – the Time Is Now!
  August 5, 2014
• EMTALA & ED Call – What’s Hot Now?
  September 2, 2014
• Fit for Duty: Assessing and Addressing Practitioner Health
  October 7, 2014
• The Non-Compliant Patient and Patient Abandonment
  November 4, 2014
• Locum Tenens: A Runaway Train?
  December 2, 2014

So join us in 2014 by registering here.  (And save $350 if you complete your registration by December 31!)