Question: I recently heard someone in the credentialing industry state that we have to provide medical staff hearings within 14 days of a suspension in order to qualify for Health Care Quality Improvement Act immunity.  Is this true?  Do we need to make Bylaws changes?

Answer: No.  Though there is language that speaks of “14 days” in the HCQIA, that language does not require health care facilities to hold hearings within 14 days in order to qualify for immunity.

The HCQIA specifies that, as a condition of immunity, professional review actions must be taken “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances.”

The statute goes on to describe the steps health care entities may take in order to meet the “adequate notice and hearing requirement,” including providing notice of the reasons for the proposed action, the right to request a hearing, and at least 30 days to request the hearing, the right to be represented by an attorney at the hearing and to have a record of the proceedings, among other things.

Lastly – and most importantly for your question – the statute provides three exceptions to the notice and hearing requirements.  Specifically, the statute states that it should not be construed as requiring a hearing where (1) there is no adverse professional review action, or (2) where a suspension of not longer than 14 days is implemented while an investigation is conducted to determine whether a professional review action is needed.  In addition, the statute states that it does not preclude “an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such action may result in an imminent danger to the health of any individual.

In our experience, health care entities and their medical staff leaders are simply unable to conduct investigations within 14 days and, even if they could do so, are unwilling to implement immediate suspensions when there is not an imminent threat to the health or safety of an individual.  Accordingly, of the three options listed above, it is our experience that hospital leaders make use of only numbers (1) and (3).  Accordingly, the leaders of hospitals and their medical staffs either (1) conduct peer review, investigations, and hearing procedures prior to implementing a proposed adverse action, such as a suspension or (2) implement a precautionary suspension immediately because an imminent threat has been determined to exist.  In either case, a 14-day hearing requirement would not apply.

In Som v. Bd. of Trustees of Natchez Regional Med. Ctr., the court noted, in passing, that the physician was a hospital employee – so why was the physician given a medical staff hearing?  WHY NOT ADDRESS THIS ISSUE UNDER THE employment AGREEMENT?  The court doesn’t say.

However, we have some ideas that we would like to share that we think will prevent a similar law suit.  Join Henry, Rachel and Charlie in Scottsdale on October 4-6 for the “Institute on Employed Physicians and Their Impact on the Medical Staff.”

 

Question: We have several “office-based” providers on our Medical Staff who do not have inpatient privileges.  The hospital employs these physicians and owns the clinics where they practice.  These physicians are granted office-based privileges by the hospital.  They would like to be able to order blood transfusions and IV antibiotics in our Infusion Center.  Are they permitted to do this?

Answer: If the Infusion Center is an inpatient service, then the “office-based” providers would have to have inpatient clinical privileges to order blood transfusions and IV antibiotics.  In a recent CMS memorandum on orders for outpatient services by practitioners without clinical privileges, CMS indicated: “It was not our intention to create access to care barriers or to limit the ability of practitioners who are appropriately licensed, acting within their scope of practice, and authorized under hospital policies to refer patients for outpatient services. We distinguish these outpatient referral cases from cases where a practitioner provides care in the hospital, either to inpatients or outpatients, and must have medical staff privileges to do so.” (emphasis added).  However, if the Infusion Center is an outpatient clinic, then the office-based providers could order these services, according to a hospital policy that complies with the criteria in that CMS memo.

 

Question:

Our community has a large physician group that has its own internal quality review process.  The group is not affiliated with our hospital, but the members of the group have clinical privileges here.  Recently, the group’s president proposed that the hospital and the group notify each other if certain events occur (for example, if concerns are raised at the hospital about a group physician).  The group president suggested this would allow both the hospital and group to do a better job assessing the qualifications of physicians.  This seems to make sense, but is such sharing of information permitted?

Answer:

First, check your state peer review statute.  It may expressly permit (or prohibit) the sharing of peer review information in the situation described.

If state law does not specifically address the sharing of information, consider whether the group is nonetheless covered by the peer review statute.  If the group meets the statute’s definition of a “peer review entity” that is governed by the statute, then you would have peer review information being shared between two entities covered by the statute.  This should reduce any risk of sharing information.

Even if the group meets the definition of a “peer review entity” under state law, we would still recommend that hospitals and groups enter into “Information Sharing Agreements” before sharing peer review information.  Such agreements make clear that the purpose of the disclosure is to promote patient safety, which is the same general purpose advanced by peer review protection laws.  This reduces the risk that the appropriate sharing of information will be viewed as a “waiver” of the peer review privilege.  An Information Sharing Agreement also describes exactly what type of peer review information may be shared, and whether such sharing will only occur upon request or proactively, when a certain event occurs.

An Information Sharing Agreement should require that physicians consent to the sharing of information.  This eliminates the risk that the physician whose information is shared will claim that either the hospital or a group was trying to harm the physician economically.

If state law is silent about the sharing of information and the physician group is not included in the definition of a “peer review entity,” it may still be possible to share peer review information.  However, in that case, an Information Sharing Agreement is even more important.

For a more in-depth discussion of sharing peer review information, join us in Scottsdale October 4-6, 2012 for The Peer Review Clinic.

Question:

Are there guidelines to follow in terms of sharing cost information with physicians? For example, a cardio-thoracic surgeon has asked about the “invoice” cost of products/supplies used in his cases.  Can we share that information with him?

Answer:

Before giving physicians prices, the hospital should review any agreements that the hospital has with applicable vendors or with a group purchasing organization.  There are frequently confidentiality provisions in those agreements which would prohibit the hospital from sharing this data with physicians or anyone else.  If there are no such prohibitions in the agreements, then it would be permissible for the hospital to share pricing information with physicians as long as those physicians do not work for one of the hospital’s competitors.

QUESTION:

I’ve always enjoyed bringing my dog to “Pup Night” at PNC Park on Pittsburgh’s North Side. But I was taken aback when I saw a patient with a dog in the ED the other day. The ED staff took it all in stride and said they were fine with it by their service animal policy. What’s that all about?

ANSWER:

It’s about federal rules for service animals and hospitals that come from the Americans with Disabilities Act (the “ADA”), the controlling federal law.

Under the ADA, businesses (including hospitals) must allow people with disabilities to bring their service animals into all areas of the business where customers are normally allowed to go. That means a service animal should generally be permitted in any area of the hospital that is unrestricted to inpatients, outpatients or visitors. The exceptions to that general rule are where the presence of the service animal would (i) require a fundamental alteration in the hospital’s policies or practices, or (ii) pose a direct threat to the health or safety of others.

A hospital may ask if an animal is a service animal but cannot require special ID cards or certifications for the animal. The hospital can ask the individual what work or task the animal has been trained to perform. That can be useful in determining the service animal’s full (or appropriately limited) role for assisting the patient in the hospital.

The hospital cannot ask about the patient’s disability. Not being able to ask the patient about his or her disability may at first seem rather counter intuitive. But that’s where asking what work or tasks the animal has been trained to perform becomes particularly useful.

The service animal is under the handler’s control, and the handler must be able to control the service animal. If the service animal is out of control and the animal’s handler does not take effective action to control it, the hospital can direct the service animal to be taken away.

Question:  We sent a case out for external review and what we got back is not exactly what we were hoping for.  The report provides valuable information about what went wrong and what could have been improved.  Unfortunately, the “all-in-one” report critiques several physicians and nurses – identifying them by name – and addresses areas where the hospital’s own processes contributed to the poor outcome.  I’m afraid that if we show this report to the doctor about whom we are primarily concerned, he will simply focus on the areas that critique others.  What can we do?

Answer:  The scenario that you report is not all that uncommon.  Without explicit guidance, many providers of clinical reviews provide reports in the manner that does not best serve the needs of those on the receiving end, who must fit them into the peer review and performance improvement processes at their hospital.  It is not necessarily that external reviewers are trying to be complicated.  It’s just that to them, it seems logical when asked to review a case to simply identify all of the areas where concerns are noted and/or where there is room for improvement.  For this reason, it is important that peer reviewers who seek external reviews always have written agreements with the reviewer.  That agreement should clearly outline expectations for the review, the report, and any follow-up that may be necessary.  Be sure to address at least the following:

• Qualifications of the reviewer(s)
• Nature of the review (number of cases, extent of review)
• Format of final report (clinical conclusions only; information separated based on identity of individual about whom concerns are raised)
• Participation in medical staff hearings and litigation which result
• Response to any external review obtained by physician
• Response to any real by physician
• Timeliness (of review and any follow-up services required)
• Confidentiality

For more details on obtaining external reviews – and incorporating them into an efficient, effective, and thoughtfully-designed performance improvement process, join us October 4-6 for The Peer Review Clinic, being offered at the beautiful and serene Fairmont Princess in Scottsdale, Arizona.

Question: Is it okay to accept reports from physicians into medical records that have been dictated by the physician using voice recognition software, but not proofread or signed by the physician?

Answer: Click to see the answer…

Question: Do you know what The Joint Commission’s position is on “scribes”?

Answer:  The Joint Commission recently published new FAQs regarding scribes.  TJC describes a scribe as “an unlicensed person hired to enter information into the electronic medical record (EMR) or chart at the direction of a physician or practitioner (Licensed Independent Practitioner, Advanced Practice Registered Nurse or Physician Assistant).”  TJC’s position is that a scribe cannot act independently, but may document a physician or practitioner’s dictation and/or activities.  TJC also stated that scribes are usually, although not exclusively, used in emergency departments, when accompanying a physician or other practitioner and record information into the medical record.

The FAQs go on to state that TJC does not endorse or prohibit the use of scribes, but if scribes are used, it lists the standards that surveyors will expect to see compliance with, including the standards regarding Human Resources, Information Management, Leadership (contracted services standard), Rights and Responsibilities, Record of Care and Provision of Care.

Finally, the FAQs state that “The Joint Commission does not support scribes being utilized to enter orders for physicians or practitioners due to the additional risk added to the process.”

Question: We have recently revamped our peer review process, eliminated our Department Peer Review Committees and instituted a Multi-Specialty Peer Review Committee.  The first few meetings of the multi-specialty committee have left us feeling like we are spinning our wheels.  Because no one on the committee is very familiar with the cases that have been referred for review, much of the meeting is spent trying to figure out exactly what occurred in the case or with questions to which no one on the committee has answers.  Most meetings end with the matters being tabled or held over until the next meeting.  Can you help us get this on track?

Answer:  First, congratulations on instituting a Multi-Specialty Peer Review Committee (or, using Joint Commission terminology, Professional Practice Evaluation Committee (PPEC)).  In our work with hospitals and Medical Staffs all over the country, we have found a multi-specialty committee to be the foundation for an effective process.  The issue you are encountering is not unique and can be addressed fairly easily.

Most PPECs do not include Department Chairs – and for good reason.  Department Chairs typically serve on the Medical Executive Committee – the only committee with disciplinary authority.  To emphasize to all practitioners that the peer review process is intended to be educational and helpful – not punitive – it is important to keep a bright line between the peer review process and the disciplinary process.  Thus, Department Chairs who serve on the MEC should not also sit on the PPEC.  In addition, an important role of the PPEC is to serve as a check and balance – reviewing the determinations and interventions made in the professional practice evaluation process by Department Chairs.  That check and balance function doesn’t work if the Department Chairs sit on the PPEC.

The downside to not having Department Chairs sit on the PPEC is that, often, they are the individuals who are most familiar with the cases under review.  Typically, they have either done the initial review of the case personally or assigned it to someone else in the Department with the appropriate clinical expertise to evaluate the care provided and, based on that review, determined the most appropriate intervention to address any identified concerns or to refer the matter to the PPEC.

To make the PPEC’s review more effective and efficient then, consider having either Department Chairs or the assigned reviewers who conducted the initial review present the cases to the PPEC and answer questions, but not participate in the deliberations of the PPEC.  Another option is to have the member of the PPEC who is in the same specialty review the case with the Department Chair or assigned reviewer prior to the PPEC meeting and then present it to the PPEC.

For a crash course on creating an effective peer review process, join Paul Verardi and Phil Zarone for The Peer Review Clinic.

Question:

Our incoming Chief of Staff just signed an employment contract with our main competitor.  Some MEC members think there is no problem, that he can just step out of the room if the CEO ever wants to discuss something sensitive, but others are concerned that perceptions of a conflict of interest might lead the CEO to involve the MEC in fewer decisions.  What can or should we consider?

Answer:

Hospitals, systems and affiliates are employing more physicians today than ever before.  Some Medical Staff Bylaws include eligibility criteria for leadership positions such as officers and department chiefs that would disqualify a physician who is employed by a competing organization from serving as a leader.  In other hospitals, the Board has adopted mission-related eligibility criteria for appointment, not just leadership positions.  CEOs may be wary of disclosing too much competitively sensitive information to the MEC because it may be hard to anticipate all situations were a conflict might arise, so the CEO therefore might be less inclined to seek MEC input on some decisions.  That would be a loss to the interests of most physicians and potentially deprive the hospital management team of helpful, relevant advice.  Respected medical staff (and possibly Board) leaders could sit down with the physician who has the new employment relationship.  Such discussions can lead the individual to step aside voluntarily.  Employment contracts can legitimately require that referrals be directed to the employing entity, so there is a potential that the new employment relationship could present a conflict.  To avoid hard feelings and political fallout, some hospitals have used a task force process involving the Board, management and physician leaders to develop mission-related eligibility criteria, including those related to financial conflicts of interest, and solicit input before those criteria are adopted.

Join Susan Lapenta and Barbara Blackmond for an audio conference on these issues on August 21 to explore these and related issues and get some practical guidance.