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February 13, 2025

Posted on by Courtney Patterson

QUESTION:
Our team just attended your seminars in Amelia Island.  The one member who attended the Peer Review Clinic came out of the session with a strong belief we should remove “scoring” from our case review forms.  He’s had some trouble convincing the rest of us, so we wanted to hear it right from the horse’s mouth – why do you recommend against scoring cases?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
We are happy to back up your colleague on this one!  The reasons we recommend moving away from using scoring as a part of the peer review process are based on the following issues:

  • We have observed that peer review committees spend a lot of energy on assigning the score, which distracts from the more important issues of whether there is a concern with the care provided and, if so, the appropriate intervention.
  • While scoring gives a perception of being objective, we’ve found that numerical scores don’t necessarily capture the complexity of a case in the same way as a detailed description from a case reviewer.
  • We have found that reviewers may be uncomfortable assigning low scores, which often carry labels indicating that the physician’s care was “inappropriate” or “below the standard.” As a result, the reviewers choose higher scores indicating “care appropriate” even if there are concerns.
  • Negative scores may put physicians on the defensive, especially since most scoring systems don’t allow for the provision of nuanced information.

These characteristics of scoring can undermine efforts to make the peer review process educational rather than punitive.  Accordingly, we recommend having a peer review/professional practice evaluation (“PPE”) system that focuses on actions and performance improvements rather than scoring.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

Please join Ian Donaldson and Charlie Chulack at an upcoming Peer Review Clinic to learn more about the new approaches Medical Staffs are taking to traditional peer review matters. You can learn more by clicking here.

February 6, 2025

Posted on by Courtney Patterson

QUESTION:
There is a private subreddit discussion group in which only Medical Staff professionals are approved to participate.  Most members of the group seek advice on credentialing, privileging, and peer review issues.  Community guidelines within the group caution against identifying the practitioners involved in their questions.  However, some posts may include specific details about problematic credentialing files or behavior incidents.  In some instances, individuals who post questions may include information such as their name and the hospital at which they work.  A few of our leaders are wondering if joining this group would help to bounce ideas off other Medical Staffs and their leaders.  Is this problematic?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
While we don’t mean to discourage professional interactions among Medical Staff professionals, there are legal risks to discussing credentialing and peer review issues about individual practitioners on social media.

Let’s be real, it’s social media.  There is never any guarantee that anything posted on platforms like Reddit, Facebook, or Instagram will remain private, even if a group is “closed.”  A member of the group could have a reason for disclosing information outside the group.  All it takes is a screen shot or copy + paste.  Plus, efforts to “de-identify” information do not always work.  Even the smallest bits of supposedly de-identified information can sometimes be pieced together and become identifiable.

There are a variety of legal risks if a post about credentialing or peer review matter gets back to the practitioner who is the subject of the post.  First, the practitioner could claim that the post was defamatory because it disclosed unfavorable information in a public setting.  Also, the practitioner could argue that the post constituted a breach of the confidentiality obligations set forth in the Medical Staff Bylaws, “tortiously interfered” with his employment prospects, or constituted a “breach of contract” under state law.

Social media posts could be problematic even if they are disclosed to individuals other than the practitioner in question.  For example, plaintiffs’ attorneys could use such posts as a reason to look for problems at a hospital.  Also, attorneys representing plaintiffs in malpractice or negligent credentialing cases could argue that the disclosure of peer review information on social media resulted in a waiver of the peer review privilege under state law of any information related to that matter.

So, we want to be careful here.  Again, we don’t mean to discourage professional interactions among Medical Staff professionals.  There are certainly many topics that could be discussed that don’t raise the potential problems discussed above.  However, recognize that there are risks to disclosing practitioner-specific information on social media.

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

January 30, 2025

Posted on by Courtney Patterson

QUESTION:
Our hospital is in the process of refining our Conflict of Interest (“COI”) Policy.  What are some general principles we should stick to/try to avoid?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Every potential COI is unique depending on who is involved, what stage in a process you are in, and the level of participation of the potentially conflicted individual.  So, it is hard to have a lot of hard and fast rules when it comes to evaluating COIs.  That being said, there are some general principles you can follow when defining a process to identify and manage COIs.

(1)        The provider under review should not have the right to compel someone to be disqualified as a COI.
While we can and should allow a provider under review to note potential conflicts with individuals reviewing them, the final say in determining if an individual is truly a COI should remain with someone like a committee chair or other leadership that can make an objective decision.  Also keep in mind that anyone can end up in the hot seat as the provider under review, so we want to make sure that no matter who that individual is – even if it is you one day – we are giving that person fair process and evaluating all potential COIs.

(2)        Committees should have a COI identification process.
Some conflicts are obvious (e.g., family members, competitors, etc.), but some you might be completely oblivious to (e.g., history of animosity, good friends, etc.).  Since it is impossible to know every conflict that might exist, you should have a process that requires committee members to disclose any potential conflicts.  Because if conflicted individuals participate in a process, they may be putting themselves at risk of some legal trouble, so we want to protect those that are volunteering their time to help the hospital by managing those conflicts on the front end.

(3)        Have a COI Policy that maintains the integrity of the process.
Ultimately, our goal in managing COIs is to protect the integrity of the processes we have in place.  By managing conflicts effectively, we build trust in our system processes, so everyone feels like they are being treated fairly and given a fair chance to be heard.

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

January 23, 2025

Posted on by jwilbert

QUESTION:
Now that there is a new Presidential administration, we hear a lot about government efficiency and regulations.  What can a new administration do about regulations?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY M. CASALE:
First, the Executive branch gets to determine whether to issue new regulations.  One of the Executive Orders issued on the first day of the Trump administration was a freeze on new regulations.  Only time can tell whether and for how long that freeze will last.

As for existing regulations, except for regulations that are subject to the “Congressional Review Act” that is described below, current regulations cannot be rescinded without going through the same notice and comment process that caused the regulations to be enacted in the first place.  Any such action will then be subject to judicial review.

But there is an exception to the process needed to rescind a federal regulation that has been created by a little known law called the “Congressional Review Act” (the “CRA”).  The CRA was enacted in 1996.  The provision in the CRA to keep an eye on is the section of the CRA that applies to final federal regulations, interim final regulations, guidance documents, and policy memoranda that are published within 60 legislative days of the end of a presidential term.  In case you were wondering, this law does not apply to judicial appointments

The CRA requires regulatory agencies to submit the applicable rules, regulations, and guidance documents to both houses of Congress and to the Government Accountability Office (“GAO”) before they can officially take effect.  Congress has 60 legislative days to review a rule.  If Congress does nothing, then the rule takes effect.  However, if a simple majority in the House and the Senate (filibuster rules do not apply) do not like the rule/regulation/guidance, they can issue a “resolution of disapproval.”  Once the “resolution of disapproval” has passed, unless it is vetoed by the President, the rule/regulation/guidance document is dead.  While the CRA states that “no determination, finding, action, or omission under this chapter shall be subject to judicial review,” the scope of the CRA’s bar on judicial review continues to be litigated.

The CRA is relevant now that there is a change in the President and the Republican Party has a majority in the Senate and the House.  History also tells us to expect to hear more about this law.  The CRA was only used once before, and only three times since the end of, the first Trump administration.  However, after President Trump was elected the first time (at which time the Republican Party also had a majority in the House and Senate), the CRA was used 16 times to invalidate Obama/Biden Administration enacted rules.  It will be interesting to see if history repeats itself and, if so, which Biden/Harris Administration rule/regulation/guidance document will become a victim of the CRA.

If you have a quick question about this issue or any of the cases discussed this week, please e-mail Henry Casale at hcasale@hortyspringer.com.

If you want to find more information on the healthcare-related regulations that have been affected by the CRA or the new Administration, the Stark Law, the Anti-Kickback statute, the FCA, the SuperValu decision, the demise of the Chevron Doctrine, and a whole lot more, please join Dan and Henry in Nashville at our Hospital-Physician Contracts and Compliance Clinic, April 24-26.

January 9, 2025

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital. We think that information is relevant to her request for appointment at our hospital. Can we still ask for the information?  Should we ask for a letter from her lawyer? Should the application be held incomplete?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes! Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty. Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, character, ethics, and other qualifications and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had applied. The physician argued that he received legal advice that signing the release could compromise his lawsuit against the hospital, which had revoked his privileges. The court held that because the physician had not provided the additional information that the hospital requested – irrespective of the fact that a settlement agreement was in place – he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

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

December 19, 2024

Posted on by Courtney Patterson

QUESTION:
One of our doctors just received a letter that his Medicare billing privileges have been revoked.  What does this mean and is there anything that can be done about it?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
Medicare billing privileges can be revoked for a variety of reasons listed in 42 CFR §424.535 but revocation of billing privileges is not the same thing as being excluded from Medicare. So, your hospital and the physician’s employer do not have to terminate any contracts they have with him.  However, it is always a good idea to double-check the OIG exclusion list just to make sure.  Moreover, revocation of Medicare billing privileges does not affect the physician’s ability to submit claims to non-Medicare payers using his NPI, and the physician can still provide locums coverage for other physicians as long as claims are not submitted under the name and NPI of the physician whose billing privileges were revoked.

Revocation of Medicare billing privileges usually is only in effect for a finite period of time, after which the physician can reapply for Medicare enrollment.  In addition, the physician can request that the Medicare Administrative Contractor (“MAC”) reconsider the revocation within 65 days of the date of the revocation and also ask for an extension of time to do so pursuant to 42 CFR §498.22.

Revocation of Medicare billing privileges is a serious matter and can cause a lot of disruption beyond just losing revenue.  But it is far less onerous than getting excluded from Medicare and there are opportunities to get reinstated.  Of course, like other situations dealing with the Government, don’t try this at home without close adult legal supervision.

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

December 12, 2024

Posted on by Courtney Patterson

QUESTION:
The MEC recently learned that a department chair placed a physician on a “period of FPPE to include proctoring until such time as the requirement for supervision is lifted.”  This has raised some red flags within the Medical Staff leadership.  We are a bit worried about the use of the word “supervision” here.  Also, another main concern is that we revised our peer review process several years ago and, while our policy allows department chairs to perform clinical case reviews, send letters of guidance, and conduct informal collegial conversations with practitioners, the policy pretty clearly states that if something more intensive/intrusive – like a formal, planned collegial intervention meeting or performance improvement plan – is envisioned, the matter should be referred to the multi-specialty peer review committee or MEC for management.

Should we “undo” the actions of the department chair and “redo” the peer review according to our policy?  Since it’s already in progress (the practitioner has already been notified of the requirement) should we just let it ride out? This feels like quite a mess.

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
You know the saying, “An ounce of prevention is worth a pound of cure”?  Well, right now you need a pound of cure.  It happens!  You are right to have some concerns about the process that has been followed thus far in reviewing this matter.  And the concerns you articulated in your question are astute.  The use of the word “supervision” probably is inappropriate and inapplicable here.  Most proctoring that is performed in the peer review world is observational only and does not involve true supervision by the proctor.  The role of the proctor is to observe and report back to the peer reviewers his/her opinions about the performance of the individual subject to review.  The proctor often consults with the practitioner collegially during that process, but the consultation does not generally rise to the level of supervision and the proctor generally does not have any authority to dictate how the practitioner provides the medical care in question.  Using the word “supervision” to describe the proctoring could give the wrong impression about these matters.  And just as importantly, it could set a negative tone, making this practitioner (and others, in the future) more defensive and less likely to be cooperative with the proctoring process.

It would also appear that the department chair overstepped his role in the process by implementing an activity (proctoring) that is generally reserved for performance improvement plans.  To the best of our knowledge, there are no legal or accreditation standards that dictate “who does what” in peer review.  But, your policy should serve as the guide for peer review activities within your hospital and medical staff.  And the way your policy has been drafted – to divvy up responsibility for certain interventions such that lower-level interventions are within the authority of individual leaders, but more intrusive interventions require committee action – are “best practice” within the industry.  Relying on multi-disciplinary committees to implement performance improvement plans provides a check and balance, helping to eliminate personal variation, as well as alleviate any concerns that competitive motives formed even part of the motivation for the action.

Now, for your real question:  Should you undo the action of the department chair?

In this case, that is probably the best course of action.  Of course, diplomacy is key.  As a first step, the MEC might simply ask a few individuals (the officers?  A Leadership Council?) to meet with the department chair and ask him to reconsider his decision.  Those leaders can also work with the department chair to notify the practitioner that the previous determination has been rescinded and, upon further consideration, it has been determined that the matter should be forwarded to the multi-specialty peer review committee for further consideration and determination of next steps.

With that done, you can then focus on the “ounce of prevention.”  Leadership roles turn over very frequently – and Medical Staff leaders are usually not provided any training in advance of their leadership terms.  Methodically providing an orientation letter to new leaders and regularly providing leadership education and training is a great way to help leaders navigate their many (and sometimes complex) roles.

An orientation letter can be used to summarize duties and make leaders aware of the Bylaws and policies that apply to them (and should be consulted when performing duties).  It does not need to be a “manual.”  A few pages often does the trick.  For example, the department chair’s role in peer review (as outlined in the policy you describe in your scenario) could be summarized as follows:

As department chair, you are also an important part of implementing the Medical Staff’s professional practice evaluation/ clinical peer review process.  Cases may be referred to you for clinical review, with a request that you report your opinions (on the forms provided).  You may conduct clinical reviews yourself or, where you lack expertise, assign the review to another clinical specialty reviewer within your department (to be reported back to you by the deadline that you set).  If your review reveals new or lower-level concerns that might be best managed through brief, informal collegial counseling or guidance, you may address the matter directly with the practitioner (reporting that outcome to the PPE Professional so that it can be recorded in the hospital’s files and reported to the multi-specialty peer review committee for oversight purposes).  More significant concerns and/or more significant interventions are generally referred to the multi-specialty peer review committee for review and management.  For more details, please refer to the Medical Staff Professional Practice Evaluation Policy.  A copy can be obtained…[describe where/how to obtain the policy]…

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

December 5, 2024

Posted on by Courtney Patterson

QUESTION:
It was mentioned that we can expedite the credentialing and privileging of telemedicine providers by using a process that would allow us to rely on the credentialing and privileging of telemedicine providers at another facility. Have you heard of this process?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The process you’re describing is an option CMS has put in place to give healthcare facilities an expedited process to credential and privilege telemedicine providers. It allows your facility to rely on the credentialing and privileging of a provider at another site, also called the distant site, to credential and privilege them at your own facility. To use this process, first and foremost, you must ensure that the entity that is serving as the distant site is either a Medicare-participating hospital or a telemedicine entity that furnishes services in compliance with the Medicare Conditions of Participation.

From there, CMS requires that you have an agreement with the distant site, and then details what must be outlined in that agreement, including a list of the telemedicine provider’s privileges at the distant site, assurance that the telemedicine provider has privileges in the state where patients will be located, and mention that the distant site will receive performance review information of a provider’s privileges.

If this is a process your facility is interested in using, it is worth a deeper dive into those CMS requirements. But before you use this process, I highly recommend your facility have a discussion on whether this process is right for you. It is a big act of trust relying on another facility’s credentialing and privileging process as opposed to your own. You want to have a candid discussion on if this is something you will do for every telemedicine provider, if this is a process you will limit to only certain distant sites, etc.

Additionally, depending on your accrediting body (e.g., the Joint Commission, DNV, etc.), there may be some additional requirements that the distant site may have to meet to be eligible for this process, so don’t forget to check accreditation standards as well.

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

November 21, 2024

Posted on by Courtney Patterson

QUESTION:
During our Peer Review Clinic Seminar in Las Vegas last week, several attendees asked if they should request input from a physician as soon as a case “falls out,” or if they should wait until later in the process. So, what do we think?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
We see different opinions on this when we work with Medical Staffs on new peer review policies. Some physician leaders want to obtain input as soon as a case is identified for review, believing it will expedite the review process (i.e., there won’t be a need for the reviewer to later pause the process to stop and obtain the physician’s input if they already have that information from the start).  Also, obtaining input right away can emphasize to Medical Staff members that the process is transparent and their input will always be considered.

However, we also hear the counterpoint that sending a request for input before the case is even sent for initial screening can cause undue stress if the case is ultimately closed with no issues.  In addition, the physician will have spent time preparing comments that weren’t needed.

Both of these arguments have validity, and there is probably not a right or wrong answer.  Some organizations we work with have incorporated a triage step in their review process, whereby cases are screened to help identify those where input would be helpful right off the bat (keeping the option to ask for input later on for all other cases).

Another option would be to get input from the physician right away if a case is identified due to a reported concern, referral from a sentinel event, referral from risk management, or some other source that makes it more likely that the individual or committee reviewing the case will want to hear from the physician under review.  But input might not be obtained right away for cases identified by a pre-determined trigger (because sometimes triggers can be more sensitive and identify cases that don’t raise a concern).

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

November 14, 2024

Posted on by Courtney Patterson

QUESTION:
We have an applicant for appointment and privileges who disclosed that she recently enrolled in our state health program and that she had enrolled in a similar program in the state where she previously practiced.  The applicant also shared that she had completed inpatient treatment for substance use disorder earlier in the year.   We were not particularly concerned with this disclosure since the applicant is being monitored by our state program which is quite thorough.

However, we just learned that the applicant’s employment had been terminated, by her previous employer, for practicing in the clinic while impaired.  We are concerned because she misrepresented this information on her application form. What can we do?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Bylaws or credentials policies (the “Credentials Policy”) often allow a hospital to “not process an application” when there are misstatements or omissions.  Typically, the Credentials Policy requires, in situations like this one, that the applicant be notified, in writing, about the potential misstatement or omission, and be invited to explain.  Thereafter, the response will be reviewed, often by the Chair of the Credentials Committee and the Chief Medical Officer, and a determination will be made whether the application should be processed further.

Importantly, this process does not result in a “denial” of the application.  And, the Credentials Policy should make it clear that “No action taken pursuant to this Section will entitle the applicant or member to a hearing or appeal.”

This process should not be different even if an applicant is claiming a disability.  A physician’s substance use disorder may be a protected disability under the Americans with Disabilities Act (“ADA”).  And, the ADA may not allow inquiries related to a physician’s impairment prior to a determination that the physician is otherwise qualified to fulfill the essential functions of appointment and clinical privileges.  However, an impairment does not excuse a physician for misstating information on an application, including that the physician was terminated, or otherwise disciplined, for practicing while impaired.

Therefore, you are free to treat a misstatement, like the one you described, in a manner consistent with any other misstatement or omission.  That means, if you provide notice to the applicant of the misstatement or omission and allow the applicant to respond and, thereafter, determine that the misstatement or omission is substantial enough to support a legitimate concern about the applicant’s integrity, you may, consistent with the controlling documents, decide not to process the application further.

Ideally, your Credentials Policy should treat these decisions as administrative in nature.  This decision should not be considered an adverse professional review action.  The decision not to process the application, because of a misstatement or omission, should not trigger a right to a hearing.  Thus, these decisions are not reportable to the National Practitioner Data Bank and should not be reportable to the state board either.

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