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September 4, 2025

Posted on by Courtney Patterson


QUESTION:
An applicant disclosed that they have a physical disability.  What can we do (or not do) in terms of asking follow-up questions about the applicant’s physical disability?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Assuming that the applicant is applying for employment as an employee, under the Americans with Disabilities Act (the “ADA”), an employer cannot ask disability‑related questions and may not conduct medical examinations until after the employer makes a conditional job offer to the applicant.  It is unlawful to ask an applicant whether they have a disability or about the nature or severity of a disability (i.e., a “disability-related question” that is likely to elicit information about a disability) or require an applicant to take a medical examination before making a job offer.

However, an employer may inquire into whether the applicant is qualified for the job.  In doing so, an employer may ask about an applicant’s ability to perform a specific job function or ask about the applicant’s non-medical qualifications and skills (e.g., education, work history, required certifications).  An employer may ask about an applicant’s ability to perform a specific function of the job the applicant has applied to, such as whether the applicant can lift a certain amount of weight (if lifting said certain amount of weight is relevant to the position).

Generally, an employer cannot ask questions on an application or during an interview whether an applicant may need a reasonable accommodation for a job, since the question on its own elicits information about the applicant’s disability.  However, if the applicant voluntarily discloses the existence of their disability or voluntarily discloses that they need a reasonable accommodation to perform the job, the employer may ask certain questions about the reasonable accommodation.  For example, an employer may ask whether the applicant will need a reasonable accommodation to perform the functions of the job, or what type(s) of accommodation(s) the applicant would need to perform the function of the job.  Importantly, the employer cannot ask about the applicant’s underlying condition and may not ask accommodation questions that are unrelated to the job’s functions.

Once a conditional offer is made, the employer may then ask disability-related questions and may require a medical examination if the inquiry or medical examination is done for all entering employees in that job category.

Even if the applicant is not seeking employment but rather applying for medical staff appointment as an independent practitioner, it is advisable to follow these rules some (but not all) courts have held that the ADA is applicable to medical staff appointment decisions.

If you have a quick question about this, e-mail Moises at mtonocbonilla@hortyspringer.com.

August 28, 2025

Posted on by Courtney Patterson


QUESTION:
How can our medical staff leaders best verify that a physician actually received a written request for information? Classically, I hear doctors say they “didn’t get the notice” – even when it is sent multiple ways – including certified mail.  (Registrant Q&A, submitted electronically at the Complete Course for Medical Staff Leaders, held in Las Vegas (Fall 2022))

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It’s amazing (and somewhat comical) how much time hospitals and medical staff leaders have spent trying to ensure, and document conclusively, that a practitioner has received notifications about medical staff membership, clinical privileges, peer review matters, Bylaws amendments, and so on.  In an era where snail mail, fax machines, and hand delivery were more common, the devotion to tracking down physicians at great effort was (perhaps) understandable.  But, as you mentioned, many times physicians claimed they did not receive hospital correspondence – even when it was sent via certified mail, return receipt requested (a very inconvenient type of mail to send).

Luckily, we have moved past that era and there are now better tools available to hospitals and their medical staff leaders – ones that virtually eliminate the administrative burden of providing appropriate notice or special notice to a member of the medical staff (or other practitioner with clinical privileges).  Specifically – considering using email and/or online messaging apps/programs to correspond regarding all communications related to the practitioner’s medical staff membership and/or privileges.  This can include all routine communications (e.g., “it’s time to submit your application for reappointment”), as well as non-routine communications (e.g., letters of guidance or education sent through the peer review process).  In fact, many organizations these days are even using email for “Special Notice” – that is, the type of notice generally given for matters of importance, such as notice of adverse professional review action and/or the right to request a medical staff hearing.

Of course, the method(s) of notice utilized by the hospital and its medical staff leaders must comply with the Medical Staff Bylaws and other medical staff governance documents (such as the Rules and Regulations, or other medical staff policies).  So, it’s important to consult those documents – and see whether/how they define “notice” – before switching up your default method.  If necessary, you may need to pass an amendment that clarifies the default method for communicating with Medical Staff members and privileged practitioners (as well as applicants for medical staff membership or privileges) will be email.

To help with administration/implementation, also consider:

  • Stating in the Medical Staff Bylaws/Credentials Policy that every applicant/practitioner must provide a current email address to Medical Staff Services and keep that address up-to-date throughout the credentialing period and any term of medical staff membership and/or privileges;
  • Requiring the practitioner to certify that the email address he or she will use for hospital and medical staff correspondence is appropriately secured, sufficient to meet the requirements of the Health Insurance Portability and Accountability Act’s privacy and security regulations. As an alternative, the Bylaws might be drafted to state that every applicant and/or practitioner will be issued an email address by the health system and will be required to utilize that email address to send and receive emails related to the practitioner’s medical staff membership and/or privileges.  A final alternative is for the Bylaws to state that all correspondence will occur via a secured intranet or app (for which the practitioner will have a user ID and password);
  • Placing the burden on the applicant/practitioner to regularly check the email address that has been provided to Medical Staff Services and/or the app that is being utilized for correspondence;
  • Specifically stating the methods of communication that are considered acceptable for notice (e.g., email, regular U.S. mail, telephone) and special notice (e.g., email, federal express or other delivery service offering verification of delivery, hand delivery with documentation of delivery);
  • Outlining any other specific details that may apply to the provision of notice. For example, when calculating “days” for the purposes of giving notice, does the date that the notice was sent count?  Do weekends and holidays count?

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

August 21, 2025

Posted on by Courtney Patterson


QUESTION:
A member of our Medical Staff disclosed they have a prescription to use medical marijuana. Is this something we should follow up on?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
There are some general principles to know before addressing a situation involving medical marijuana in the workplace:

  1. Marijuana is still illegal under federal law. This means people who use medical marijuana are not entitled to federal protections like those in the Americans with Disabilities Act.  Instead, the rules and protections are set by each state and enforced by state agencies, medical boards, or other state-run committees.
  1. Not all states are created equal. States treat medical marijuana in the workplace in different ways.  Some states have laws that protect users – for example, stopping employers from discriminating against them or requiring reasonable accommodations be made.  Other states have taken the stance that practitioners should refrain from using medical marijuana, and some states have not addressed the issue at all.
  1. A prescription doesn’t mean unrestricted use in the workplace. No state requires employers to permit the use of medical marijuana during work or on work property.

With that in mind, we recommend hospitals treat a situation like this like any other where they receive notice that a practitioner may be experiencing a health problem.  The matter should be reviewed under the Practitioner Health Policy or another applicable policy to determine if the underlying cause for the use of medical marijuana affects the practitioner’s ability to safely treat patients.  After that, be sure to check with counsel to see how your state addresses marijuana use in the workplace.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

August 7, 2025

Posted on by Courtney Patterson

QUESTION:
One of our doctors had his Medicare billing privileges revoked for a year.  Does that mean we have to terminate his contract and no longer accept referrals from him?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
No.  Revocation of Medicare billing privileges is not the same as being excluded from Medicare.  The regulations governing situations where a provider’s Medicare billing privileges have been revoked (42 CFR §424.555) say that Medicare will not pay for services furnished by a provider whose billing privileges have been revoked.  That regulation goes on to say that the provider could incur criminal liability if the provider tried to bill Medicare.

This is different than the case of a provider who is formally excluded from participation in Medicare.  A hospital can incur civil monetary penalties if it continues to contract with an excluded provider and is also prohibited from billing Medicare for hospital technical services referred by an excluded provider.  These prohibitions do not apply when a provider like a physician simply has his or her Medicare billing privileges revoked.

Depending on the situation, a provider may be able to ask Medicare to reconsider the revocation or reinstate billing privileges before the revocation period expires pursuant to 42 CFR §498.22.

If you have a quick question about this, e-mail Dan Mulholland at DMulholland@hortyspringer.com.

July 31, 2025

Posted on by jwilbert

QUESTION:
What are some general guidelines for reinstating an employee from FMLA leave?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA
The Family Medical Leave Act (“FMLA”) generally requires an employer to restore an employee to the same job to an “equivalent” job the employee had when they took their FMLA leave.  An “equivalent job” is a job that is virtually identical to the original job in terms of pay, benefits, shifts, conditions, and other terms and conditions of employment.  An employee is entitled to any unconditional pay increases, including unconditional bonuses, which occurred while on FMLA leave, as well as conditional pay increases conditioned on seniority or length of service if employees taking the same type of leave for non-FMLA reasons would receive such increases.  Notably, if a bonus is conditioned on achieving a specific goal and the employee does not meet the goal due to FMLA leave, the employer need not pay the bonus unless the employer pays said bonus to employees taking the same type of leave for a non-FMLA reason.  Additionally, any benefits the employee accrues prior to taking FMLA leave must be available to the employee when they return from leave.

Conversely, if the employer takes an action on the employee’s position that would have affected the employee whether or not they were on FMLA leave, the employee on FMLA leave is not protected from said action.  For example, if an employer eliminates a shift or decreases overtime, the employee returning from FMLA leave would not be entitled to return to the eliminated shift or original overtime hours.  If the employer lays off the employee during FMLA leave, the employer must be able to show that the employee would have been laid off during the FMLA leave period, regardless of whether the employee would have been on leave.  An employer may also decide not to restore a “key employee,” who is defined under the FMLA as a salaried FMLA-eligible employee who is among the highest paid 10% of all employees within 75 miles of the worksite.

If the employee fails to return to work after FMLA leave expires, the employer may recover from the employee its share of health plan premiums paid during the employee’s unpaid FMLA leave unless the reason the employee cannot return to work is due to (1) the continuation, recurrence, or onset of a serious health condition of the employee or their family member (or a serious injury or illness of a covered service member that would otherwise entitle the employee to FMLA leave) or (2) other circumstances beyond the employee’s control. Such “circumstances beyond the employee’s control” include situations such as where a parent chooses to stay home with a newborn child who has a serious health condition; the employee is laid off while on leave; or the employee’s relative or another individual has a serious health condition, and the employee needs to provide that person with care.  The employer may thereafter require the employee to provide supporting medical certification to confirm said continuation, recurrence, or consent of the serious health condition.  If the employee does not provide the supporting medical certification within a timely manner (typically 30 days of the request), the employer may recover the health benefits premiums paid.

Employers should be aware of other federal laws that may apply in addition to the FMLA, including the American with Disabilities Act and the Pregnancy Discrimination Act, as well as state-specific laws.  For example, if an employee on FMLA leave is a “qualified individual” with a “disability” within the meaning of the ADA, the ADA requires their employer to make reasonable accommodations absent undue hardship.

If you have a quick question about this, e-mail mtonocbonilla@hortyspringer.com.

July 10, 2025

Posted on by Courtney Patterson

QUESTION:
We are having a hard time getting medical staff members who are willing to serve on committees and currently have a significant number of medical staff spots that we need to fill on our infection prevention committee, performance improvement committee, tissue committee, and the pharmacy and therapeutics committee.  One idea was to try and consolidate some of these functions so there are fewer committees.  Is this doable? Advisable?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of the fast answers – (1) likely yes, and if so, (2) absolutely yes!  One of the biggest concerns that we hear being raised these days is that the medical staff leadership pool – whether that means individuals willing to serve as medical staff officers, department chairs, committee chairs, and even committee members – is shrinking dramatically.  Sometimes it’s difficult to populate even the committees that fulfill the primary “medical staff functions” like credentialing, privileging and peer review, often leaving very slim pickings for the ancillary hospital committees.

In terms of whether it’s “doable,” one thing to verify first is what your state hospital licensing regulations may require in terms of medical staff or hospital-specific committees.  While most state regulations just speak in terms of specific functions that have to be fulfilled – often by a committee – some (here’s looking at you Pennsylvania!) do specify a number of separately named committees that hospitals are expected to maintain.

However, in the absence of any regulatory constraints, the manner in which you decide to assign the various functions that have to be met within the hospital to different committees is purely discretionary.  It has become common to see a single overarching “quality committee” that fulfills the functions that used to be performed by separate infection control, P&T, tissue/transfusion, performance improvement, and quality committees.  The key is that you want to ensure that the necessary functions are being fulfilled and that your committees – whether one, two or ten – are organized in such a way as to ensure that occurs.

If you have a quick question about this, e-mail LeeAnne at LMitchell@hortyspringer.com.

July 3, 2025

Posted on by Courtney Patterson

QUESTION:
In our professional practice evaluation process, we sometimes adopt a performance improvement plan (“PIP”) that includes proctoring, second opinion consultations, and/or prospective case review.  In our PIPs, we try to include the kind and the number of cases that have to be reviewed.

The last several times we have done this, however, the physician stopped practicing at the hospital and never completed the PIP. This has become an issue at reappointment.  Any suggestions??

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question, and it is an issue we see quite a bit.  We have a couple of suggestions for your consideration.  In addition to the number and kinds of cases to be reviewed, it is a good idea for the PIP to include a time frame for its duration.  So, for instance, the PIP might say something like this:

For at least the next ten major gynecology procedures you perform at the Hospital, you must arrange to have a proctor who has clinical privileges to practice at the Hospital (“Proctor”) and who has been approved in advance by the Chair of the Peer Review Committee or the Chief Medical Officer.  The Proctor must be present in the OR before the case is started and must remain in the OR for the duration of the case.

For at least the next six months, the Peer Review Committee will conduct a retrospective review of your major gynecology procedures to evaluate compliance with each element of the PIP.  The Peer Review Committee will share the results of the review with you, and you will be invited to provide input.

At the end of six months, the Peer Review Committee will review the results of the PIP and meet with you to discuss them.  Thereafter, it will recommend whether the PIP has been successfully completed, whether it should be continued or modified, or whether some action consistent with the Medical Staff Bylaws or other Medical Staff rules or policies should be considered.

Although we don’t always include this in the original PIP, you raise a great question about a practitioner who agrees to the PIP but who then fails to actively participate in or complete it.  If you find yourself in this situation, where after the initial term of the PIP, the practitioner has not had any, or very few cases completed, you could adopt a revised PIP with language like this:

It has been more than six months since you agreed to abide by the PIP.  Critically, you have failed to complete any of the clinical components outlined in PIP.  Specifically, you were required to have 10 ten major gynecology procedures proctored.  To date, you have not performed any of these cases.  Therefore, this Revised PIP will be in effect for an additional six months.  If you fail to complete the PIP at that time, such will be accepted as a voluntary resignation of your appointment and clinical privileges.

It is also very important to refer to the PIP if the practitioner is reappointed during its term. Too often, a standard reappointment letter will be sent to a practitioner who is subject to a PIP.  This is not only a missed opportunity to reinforce the existence of the PIP, but it also sends very mixed messages.  So, make sure the department chair, Credentials Committee, Medical Executive Committee, and Board have access to the PIP when they are making reappointment decisions.  The reappointment letter is a perfect place to reinforce the terms of the PIP and provide notice of consequences if the terms of the PIP are not timely completed.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

June 26, 2025

Posted on by Courtney Patterson

QUESTION:
Can you help with guidelines for taking minutes at a meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes – here are the “Do’s” for taking minutes:

  1. DO – write down the name of the committee that’s meeting.
  1. DO – write down the date of the meeting.
  1. DO – list who’s in attendance, and who’s absent.
  1. DO – list if there are any guests or visitors at the meeting.
  1. DO – note the time the meeting was called to order, who called it to order, and the time it was adjourned.
  1. DO – note whether it’s a regular or special meeting of the committee.
  1. DO – note that if it’s a special meeting, that notice was given to the committee members, and the way notice was given (mail, e-mail, personal delivery, etc.).
  1. DO – note whether a quorum was present (this eliminates the argument that the action of the committee wasn’t valid because of the lack of a quorum).
  1. DO – note whether the previous minutes were read and approved.
  1. DO – note the result of the votes, for example, 7-1 to suspend the physician’s privileges. This is the most important “Do” since the vote is the committee’s action.  If the result of the vote is written down in black and white at the time it’s taken, there is little room to argue in the future that it was inaccurate.

…and here are the “Don’ts”:

  1. Don’t record the details of any discussion. This is the most important “Don’t.”  Sometimes, in the heat of the moment, someone may say something that they don’t mean.  Or that can be misinterpreted.  Or that was meant as a joke, but looks sinister in black and white.  If it’s recorded in the minutes, it’s there forever, and may turn up again.  There isn’t really a need to record the details of a discussion.  What’s important is the vote, the committee’s action.

But, with every rule, there’s an exception.  The exception here is “Do put details of a discussion in if it helps” and it helps when a committee makes an adverse recommendation against a physician.  In that case, the minutes could be your best friend.  The details would allow the committee to record the objective reasons for taking action – physician was disruptive on this date, this date and this date and did this and this and this.  The reasons can be explained, but, comments shouldn’t be attributed to any one individual.

  1. Don’t record how each member voted, unless a committee member wants his/her vote recorded. There’s also an exception to this rule.  When a committee’s going to make an adverse recommendation and a competing physician is on the committee, the minutes should reflect that the conflict of interest principles were followed (Dr. Jones fully answered the committee’s questions, left the room prior to the vote, the vote was taken, and Dr. Jones returned to the room).
  1. Don’t record who made a motion and who seconded them.
  1. Don’t record who said what to someone else.
  1. Don’t record personal remarks unrelated to the committee’s business. For example, when discussion is regarding revocation of privileges, don’t record “Dr. Jones said that Dr. Smith has too many fancy cars.”  The only thing that’s relevant is Dr. Smith’s competence.  So record “The committee recommended that Dr. Smith’s surgical privileges be revoked because of competence concerns.”

If you have a quick question about this, e‑mail Nick at ncalabrese@hortyspringer.com.

June 19, 2025

Posted on by Courtney Patterson

QUESTION:
A physician smelled of alcohol and was behaving oddly during rounds.  The physician refused to undergo a screening test, so the Medical Staff leadership imposed a precautionary suspension.  Is there a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Yes!  First, hospitals should have a Practitioner Health Policy that governs health issues affecting privileged practitioners.  Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event.  A Practitioner Health Policy allows Medical Staff leaders to adopt practices and procedures that work in your setting and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above.  The first step is for the Policy to identify who may respond to handle such situations.  We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment.  Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO).  Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues).  This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others.  Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension.  A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague.  A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

If you have a quick question about this, e-mail Mary at MPaterni@hortyspringer.com.

June 12, 2025

Posted on by Courtney Patterson

QUESTION:
One of the members of our Bylaws Committee said that she heard that we shouldn’t be including our hospital’s Institutional Review Board (“IRB”) in the Bylaws with all of the other medical staff committees even though this is where it has always lived at our hospital.  Is that true?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes.  The federal Food and Drug Administration regulations pertaining to IRBs, 21 C.F.R. §56.101 et seq., define an IRB as “any board, committee, or other group formally designated by an institution to review, to approve the initiation of and to conduct periodic review of biomedical research involving human subjects.”  (Emphasis added.)  The Department of Health and Human Services’ regulations echo the “institutional” aspect of the formal designation of IRBs (45 C.F.R. Part 46).  Federal regulations require the IRB to be a committee formally designated by a hospital’s Governing Board to review biomedical research involving human subjects at the hospital.

This issue gained momentum in research audits performed by both the Office of Human Research Protections and the Food and Drug Administration in the recent past with the relevant agency taking issue with the fact that the hospitals included their IRBs as one of several “medical staff committees” that lived in a medical staff governance document like the medical staff bylaws.  The auditors pointed generally to the regulatory language, that it is an institutional responsibility to maintain an appropriate IRB, not a medical staff responsibility.  As a practical matter, the concern is that (while very unlikely) if the IRB procedures need to be revised because of a regulatory change, the medical staff could refuse to do so, as is contemplated by the amendment process to these rules.  By comparison, if the IRB is a hospital committee, hospital administration and/or the Board could implement a change on its own action.  Again, while the likelihood of a Medical Executive Committee or a medical staff as a whole acting in such an obstructionist manner is very slim, in the eyes of the audit agencies, it is a valid concern.

Therefore, we recommend that the IRB be created by a Board resolution and thereafter function as a committee of the hospital, rather than the medical staff, with its independent authority derived from the Board.  There may be substantial overlap of the IRB membership with that of a medical staff committee.  However, the IRB should be constituted as a separate committee of the Board in accordance with the membership requirements set forth in the federal regulations.

If you have a quick question about this, e-mail LeeAnne at LMitchell@hortyspringer.com.