Question: We have sent questionnaires to other hospitals in the past, then after appointment, information comes to light that we wish we had during credentialing.  In initial credentialing, what should hospitals do as senders of questionnaires?

Answer: Questionnaires should be carefully worded to capture all the information the hospital and its physician leaders reasonably believe to be helpful to assess qualifications.  Asking about whether the applicant has been the subject of an investigation is not likely to result in information about letters of guidance, letters of reprimand, performance improvement plans, or focused professional practice evaluations.  If there is a certain kind of information that is relevant to your decision-making, it should be reflected in the request for information.

For example:

“Timely, comprehensive and legible completion of medical records:
No concerns___  Some concerns___  Unable to assess___”

could be added to your evaluation form.

Always remember to hold an application incomplete until all reference requests are received, remember that the burden is on the applicant to provide the requested information, and remember not to process incomplete applications!

Question: Is there a time limit for precautionary suspensions?  Or can it be until the investigation is completed, even if that takes more than 14 days?

Answer: The duration of a precautionary suspension is within the discretion of the hospital and medical staff leadership implementing the suspension, in accordance with any relevant provisions of the organization’s Medical Staff Bylaws or Credentials Policy.  Of course, precautionary suspensions should only be implemented – and remain in place – as long as an imminent risk of harm to patients or others exists.  But, there is no legal time limit for the duration of the precautionary suspension.

We get this question from time to time, probably because of some language found in the Health Care Quality Improvement Act (“HCQIA”).  To clear up any confusion, let’s take a look at that language – and why it does not impose a time limit on precautionary suspensions.

The HCQIA is the federal statute which provides qualified immunity to those who conduct peer review activities and those who provide information during the course of credentialing and peer review.

With respect to those conducting peer review activities, the general rule is that HCQIA immunity is only available if the physician was provided notice and an opportunity to have a hearing and appeal before an adverse professional review action was implemented.  There are two exceptions to this general rule, however, and hospitals and their leaders are excused from the “prior notice and hearing” requirements of the HCQIA in both of these situations:

1. when privileges are restricted or suspended for 14 or fewer days, during which an investigation is conducted to determine the need for a professional review action; and
2. when privileges are immediately restricted or suspended, subject to subsequent notice and hearing or other adequate procedures, where failure to take action may result in imminent danger to the health of an individual.

In our experience, hospital and medical staff investigations – especially if they involve clinical concerns – almost always take more than 14 days to complete.  Therefore, we do not recommend that leaders proceed in suspending individuals pursuant to the first exception listed above.

Rather, we recommend precautionary suspension language that helps leaders fall within the safe harbor provided by the second option, described above.  In other words, we recommend that the Bylaws or Credentials Policy provide for precautionary suspension (prior to investigations, formal “notice,” and hearing and appeal rights) when the leadership believes that failure to implement the suspension may result in imminent danger to the health of an individual.  Further, we recommend review by the Medical Executive Committee on an expedited basis (no longer than 14 days after implementation of the suspension) regarding whether the suspension should be upheld until the issue can be resolved.

As a final point, be aware that the fact that a precautionary suspension is in place does not mean that an “investigation” must be conducted.  There are a number of situations where an investigation might not be the right solution.

For example, the matter could potentially be resolved by gathering facts and working with the practitioner collegially, through the peer review process, to achieve performance improvements.  In that case, resorting to formal investigation and “corrective action” procedures would not be necessary or warranted.

Note that in such a case, the precautionary suspension might be in place throughout the fact-gathering phase, while the peer review body considers the facts and develops a solution, and until such time as the practitioner completes any performance improvement activities.  This could be far longer than 14 days.

By way of further example, a precautionary suspension might be implemented because of several bad and unexpected outcomes experienced by a physician’s patients within a short period of time (e.g., three patients died this month, unexpectedly).  At the time the precautionary suspension is considered, you may have no idea why the unexpected and adverse outcomes have occurred.  In turn, the precautionary suspension could be deemed necessary to put a hold on things while the cause of those outcomes is determined.  In the end, resolving the matter might be as simple as consulting a few charts and talking to a few specialists to discover that these three patients were unusual in many regards and the outcomes, while unexpected, were not related to the care provided but, rather, to the unique circumstances of each patient.

Note that in this case, the precautionary suspension may be in place for only a few days.

In conclusion, precautionary suspensions serve the unique purpose of allowing the leadership to put things on hold – or implement a “pause” – while additional facts are gathered and an imminent risk is resolved.  They are unrelated to whether or not an investigation is underway and the mere implementation of a precautionary suspension does not dictate that an investigation be conducted.  Finally, there is no time limitation on precautionary suspensions, so long as your Bylaws or Credentials Policy language states that the grounds for precautionary suspension are imminent risk to the health of any individual.

(NOTE: Please consult counsel about situation-specific considerations regarding National Practitioner Data Bank reporting implications for precautionary suspension lasting more than 30 days.)

Question: Is a subpoena from a state board of medicine treated just like any other subpoena for purposes of the Health Insurance Portability and Accountability Act (“HIPAA”)?  In other words, is it true that the hospital can’t release a patient’s Protected Health Information to a state board of medicine unless it first takes certain steps, such as getting a qualified protective order from a court, or informing the patient?

Answer: No, a subpoena from a state board of medicine is not treated like any other subpoena for HIPAA purposes.  Protected Health Information (“PHI”) which is the subject of such a subpoena can be released to a state board of medicine without a qualified protective order or notice to the patient.  HIPAA provides that PHI may be disclosed to a “health oversight agency” for “licensure or disciplinary actions” necessary for oversight of the health care system.  (45 C.F.R. §164.512 (d).)  HIPAA also states that a state board of medicine is a “health oversight agency.”  (45 C.F.R. §164.501.)  That said, if certain categories of particularly sensitive information are involved (such as mental health, drug/alcohol, or HIV/AIDs), state law should be consulted to see if it offers greater protections to the information.

Question: With tax day this week, I was reminded of a blurb I saw that the IRS just released new rules for nonprofit, tax-exempt hospitals regarding community health assessments.  What are they all about?

Answer:  A provision in the Affordable Care Act requires nonprofit, tax-exempt hospitals to conduct community health assessments.  Regulations to implement that provision were issued by the IRS earlier this month.  78 Fed. Reg. 20523 (April 5, 2013).  Although comments on these proposed regulations will be accepted for 90 days after the publication in the Federal Register, the regulations are in effect now.  The law and proposed regulations require that every three years, each nonprofit, tax?exempt hospital must:

1. conduct a community health needs assessment (CHNA) to identify unmet health needs in the community;
2. prioritize those needs;
3. adopt, by the end of the taxable year in which the hospital conducts the CHNA, an implementation strategy to meet the community health needs identified through the CHNA or explain why the hospital does not intend to address the need;
4. document its CHNA and implementation strategy in a report that is adopted by the hospital’s governing board or a committee of the board;
5. publicly publish its CHNA report on its website (which becomes the date the hospital “conducted” the CHNA and starts the clock on the implementation strategy)  and provide an opportunity for public feedback on it; and
6. report with its Form 990 a copy of its most recently adopted implementation strategy or the URL for it, the URL for its CHNA report and a description of “the actions taken during the taxable year to address the significant health needs identified through its most recently conducted CHNA…or, if no actions were taken with respect to one or more of these health needs, the reason(s) why no actions were taken.”

Failure to either conduct the required health care assessment or to implement strategies to address the identified needs can result in excise benefit taxes of $50,000 and, if the failure is “willful” or “egregious,” loss of the hospital’s tax-exempt status.  For a detailed explanation of these new rules, see the March/April issue of ACTION KIT for Hospital Trustees.

Question: At our hospital, we seemed to be getting more and more behaviorally difficult and noncompliant patients (and sometimes family members, too).  Patients like this can make providing treatment difficult at best, and they really wear down our staff.  But if we take determined action against them, we’re afraid that this could negatively impact our HCAHPS (Hospital Consumer Assessment of Healthcare Providers and Systems) scores.  What should we do?

Answer: This is a complicated one.  At Horty Springer, we seem to be writing more and more “we can no longer be your hospital/physician” letters and “how to deal with noncompliant patients” policies.  At the same time, we know that Medicare’s value-based purchasing (“VBP”) payments to come will use HCAHPS scores as a surprisingly high percentage of the VBP payment determination.  What is to be done?

Even with “patients with issues,” some of this can sometimes be addressed by good communication by the health care providers involved.  That not only includes being good “active listeners” and having the ability to put yourself in their shoes, it can also include working with patients to make better health choices.  As one of its Professional Issues pieces, the American Medical News recently ran an article entitled “Motivating Patients To Make Wise Choices.”  With the ongoing changes to reduce fee for service payments, expect to see more and more of these kinds of articles.

Can “health coaches” help?  If done right and well, a health coach can help patients make better health decisions.  So, if a health coach has established a relationship with a patient outside the hospital, could that health coach get through to a patient who is being noncompliant in the hospital?

One worry tied to the original question is that some health care providers might decide they will not take certain kinds of patients whom they believe will drive down their HCAHPS scores.  This is comparable to the concern that some health care providers might not accept “sicker patients” because this will affect their quality scores.

None of this is meant to disparage any health care provider in any manner.  These situations and the questions and concerns they raise are complicated and difficult.

Question: Our Professional Practice Evaluation Committee (PPEC) chair is also a member of our Credentials Committee. Does this arrangement create inherent conflicts, or should we be concerned that this individual may be biased by what she learns in one meeting or the other?

Answer: It is always wise to be mindful of potential biases/conflicts (or appearances) that might arise when a Medical Staff member wears multiple hats. And while the Medical Staff leadership always has the discretion to determine whether a conflict or bias exists, in this case, we do not believe that having the PPEC Chair on the Credentials Committee is inherently problematic.

Primarily this is because the two committees are involved in very different processes (i.e., focusing on a specific problem vs. credentialing and privileging issues).  In addition, because of the multiple levels of review in each of these processes, there are sufficient checks and balances in place to prevent one individual from influencing any recommendations that are ultimately passed up the chain of command.  It is also helpful to note that neither the PPEC nor the Credentials Committee has authority to recommend adverse actions.   This resides with the Medical Executive Committee.

Of course, if some unique situation ever did arise, the committee members always have the discretion to recuse this individual if it is believed that his or her presence would be unfair to a certain physician or if his or her presence would inhibit discussion or otherwise skew the recommendation of the committee. Sometimes, recusal is best just to manage appearances, to keep the focus on the merits.

Question:  Our Medical Executive Committee recently made a recommendation to revoke the privileges of a physician appointed to our medical staff.  This has come at the end of a long process – extending for years – with medical staff officers, department chairs, and the peer review committee trying to get the physician to change her clinical practice habits.  Immediately after requesting a medical staff hearing, the physician demanded copies of every document in the hospital’s files that has her name on it, as well as peer review information involving other physicians in her specialty area.  Do we have to provide all of this information to her?

Answer:  No.  A medical staff hearing is not a trial.  Formal “discovery” that seeks every possible relevant document does not apply in this context.  That said, fairness – as well as the federal Health Care Quality Improvement Act – requires that the individual under review be given a statement of the specific reasons for the recommendation.  Consistent with this, the physician should also be given copies of those documents actually considered in support of the recommendation, such as the medical records, incident reports, reports of outside consultants or other documents which formed the basis for the recommendation made by the Medical Executive Committee.  This information should also be made available sufficiently in advance of the hearing to allow the physician adequate time to prepare a response.

It is becoming increasingly common for physicians under review or subject to a medical staff hearing to request the peer review records of other physicians.  The argument is generally that these other records are needed to show that he or she was treated differently than other physicians on the medical staff.  This specific issue has been considered by several courts, all of which have said that there is no requirement to provide information about other physicians in the context of a medical hearing.  The subject of a medical staff hearing is the fitness of the physician under review.  Files of other physicians are simply irrelevant to this assessment.  In order to prevent a lot of time spent arguing over this issue, we recommend that your medical staff bylaws or credentials policy include a specific statement to this effect.

Question: We’ve participated in Stage 1, and will participate in Stage 2, of the Electronic Health Record Incentive Program regarding meaningful use.  We’ve had registered nurses enter medication orders using Computerized Provider Order Entry in Stage 1 (“CPOE”), and plan on using them to enter orders in Stage 2.  However, there is a disagreement in the hospital about whether registered nurses are allowed to enter orders using CPOE.  Can you clear this up?

Answer: Registered nurses can enter orders using CPOE.

The American Recovery and Reinvestment Act of 2009 (“ARRA”) was enacted on February 17, 2009.  The ARRA contained provisions known as the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).  The HITECH Act established incentive payments to eligible professionals to promote the adoption of the meaningful use of health information technology (“HIT”) and qualified electronic health records (“EHR”).  The incentive payments are part of a broader effort under the HITECH Act to accelerate the adoption of HIT and the utilization of EHR.

The EHR incentive programs consist of three stages of meaningful use.  Each stage has its own set of requirements to meet in order to demonstrate meaningful use, with the objectives being known as Core Measures.  Stage 1 focused on providers capturing patient data and sharing that data either with the patient or with other health care professionals, and consisted of 15 Core Measures, including, as Measure 1, using CPOE for medication orders.  Stage 2, which becomes effective in 2014, will consist of 17 Core Measures, including, as Measure 1, using CPOE for medication, laboratory or radiology orders.  Stage 3 has yet to be released.

Whether registered nurses could enter orders using CPOE was a point of much confusion.  However, the Centers for Medicare & Medicaid Services (“CMS”) cleared up the confusion when it released the final regulations in the Federal Register on September 4, 2012:

Comment: We have received many comments on who can enter the order into CEHRT for it to count as CPOE.  Four possibilities received comment support.  First, only the ordering provider be able to enter the order into CEHRT.  Second, any licensed healthcare professional who can enter orders into the medical record per state, local and professional guidelines can enter the order into CEHRT.  This is the current policy which was proposed to continue.  Third, an expansion to any licensed, certified or appropriately credentialed healthcare professional (some commenters replaced medical assistant with healthcare professional) who can enter orders into the medical record per state, local and professional guidelines.  Fourth, an expansion to allow anyone, including those commonly referred to as scribes, enter the orders into the medical record per state, local and professional guidelines.  We also note that there was some confusion among commenters as to our current limitation and proposal of any licensed healthcare professional using CPOE to create the first entry of the order into the patient’s medical record as we received many comments suggesting that nurses should be able to enter the orders.  We clarify that nurses who are licensed and can enter orders into the medical record per state, local and professional guidelines may enter the order into CEHRT and have it count as CPOE.  (Emphasis added.)

The last sentence of the Comment makes clear that registered nurses can enter orders if permitted to in accordance with state, local and professional guidelines.

Question:

We’re trying to move to a paperless office.  Do we need to retain paper copies of signed contracts?

Answer:

The federal government and many states have adopted the Uniform Photographic Copies of Business and Public Records as Evidence Act.  The federal version of this law says that if an organization, in the regular course of business, makes a copy which “accurately reproduces” the original, then “the original may be destroyed in the regular course of business unless its preservation is required by law.  Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not….”  28 U.S.C. §1732.

Thus, you have to check state law to see if the Uniform act has been adopted.  If your state has adopted the Uniform act or a similar act, and if there is no state law that requires you to retain signed originals of certain business records, then you may convert signed contracts to electronic form and dispose of the paper copy.  Of course, to be on the safe side, it would be a good idea to retain paper copies of particularly important documents, such as the organization’s Articles of Incorporation, merger agreements, high-dollar contracts, and so on.

Question: One of our dentists recently experienced a number of unusual complications/outcomes with patients on whom he had performed minor surgical procedures, so we sent several of his cases for external review.  The report we received showed that each case was reviewed by two individuals:  a dentist and an oro-maxillofacial surgeon.  While we appreciate that the review agency was trying to be thorough, the reviewers unfortunately came to vastly different conclusions regarding the dentist’s care.  The dentist recognized only minor issues, finding most of the care to be appropriate or consistent with general dentistry practice.  The oro-maxillofacial surgeon, on the other hand, identified a number of lapses in judgment and clinical skill.  With conflicting opinions such as this, how do we proceed?

Answer: Your situation sounds like quite a pickle!  Most organizations use external reviews to help them resolve internal uncertainty or conflict regarding whether or what concerns exist with a practitioner whose care has been questionable.  It is no wonder, then, that you find yourselves without a clear path, in light of conflicting external reviews.  It seems that given your current situation, you have a couple of options available to you:

• The first option is to contact the review agency and ask for the reviewers to clarify the inconsistencies in their expert reviews.  While dentists and oro?maxillofacial surgeons are trained differently, the standard of care for any services provided by such practitioners is the same.  In other words, there is one standard of care for tooth extraction – regardless of whether that extraction is performed by a dentist or an oro-maxillofacial surgeon.

Since there is only one standard of care, it is quite unusual that two reviewers would come to such different conclusions regarding the care provided by your dentist.  If you ask for clarification, you may explain the problem and request that the reviewers, when responding, define more objectively the standard against which they are measuring the dentist’s care (rather than merely subjectively concluding that a problem did or did not exist in the care provided).

• A second option is to obtain another external review, this time specifying for the review agency the exact qualifications of the expert who will perform the review – and requiring hospital approval of the chosen expert in advance of any review.  Essentially, you are then “breaking the tie” with a third external review.

Of course, if things ultimately do not work out well for the dentist, nothing will prevent him from claiming at some future date that the singular favorable review was accurate while the others were misguided.  But no peer review will ever be enveloped in 100% certainty and, therefore, the hospital and medical staff leadership should feel comfortable proceeding once any inconsistencies have been worked out to their reasonable satisfaction.

• A third option is for the Medical Staff leadership to consider the external reviewers’ reports and then use their medical expertise, judgment, and discretion to determine which make more sense and/or are worthy of greater weight.

Of course, there are risks to this approach.  If an adverse professional review action is recommended for the dentist, the dentist may claim that the leadership should have given more weight to the dentist’s review.  On the other hand, if the leadership gives more weight to the dentist’s review and, in turn, takes minimal peer review action, any patient who is harmed during a future surgery of the dentist’s could potentially make a negligent credentialing claim (arguing that the leadership should have given more weight to the oro-maxillofacial surgeon’s opinion or taken further steps to assure patient safety before allowing the dentist to return to practice).

• Finally, a fourth option is for the leadership to determine that they simply cannot resolve the inconsistencies between the experts’ reviews – and to proceed in light of that uncertainty.  This could mean, for example, allowing the dentist to practice in the hospital, but implementing some form of focused professional practice evaluation (FPPE) to make sure that patients are safe and, at the same time, gather more information about the dentist’s practice.  Perhaps a period of proctoring or required consultations, followed by a period of 100% chart review?

Peer review can be complicated.  It’s not just a matter of going step-by-step through routine procedures.  Sometimes, even when you follow all of the rules, you end up with a conundrum!  We hope this Q&A helps.  If you are looking for even more detail on how to refine your peer review process, please join us at The Peer Review Clinic in New Orleans, May 2-4.