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October 2, 2025

Posted on by Courtney Patterson

QUESTION:
We are working on updating our informed consent forms.  Can you remind us what an informed consent form should include?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Informed consent is essential to providing high-quality, ethical care, so I commend your efforts to review and improve your forms.  In nearly every state, the treating provider is responsible for ensuring the patient understands:  (1) the item or service being provided; (2) the associated benefits and risks; and (3) any reasonable alternatives.  This explanation must be delivered in a manner the patient can understand.  In some states, failure to obtain informed consent may expose the provider to liability if the patient is harmed by the treatment – so it’s important to review your specific state laws.

Under the Medicare Conditions of Participation, the patient’s medical record must include documentation of informed consent for procedures that require it – either under federal or state law or by your facility’s medical staff policies.  The Medicare Conditions of Participation Guidelines offer a detailed explanation of what a properly executed informed consent form should look like.  At a minimum, your consent forms should include:

  • The name of the facility where the care is going to take place;
  • The name of the procedure or treatment for which consent is being given;
  • A statement that the procedure or treatment, including the anticipated benefits and material risks, and alternative treatments, was explained to the patient or the patient’s legal representative;
  • The signature of the patient or their legal representative; and
  • The date and time the informed consent form is signed by the patient or their legal representative.

CMS also recommends including the following elements to strengthen your informed consent documentation:

  • The name of the practitioner who conducted the informed consent discussion;
  • Date, time, and signature of the person witnessing the patient or their legal representative signing the consent form;
  • An indication or listing of the benefits and material risks of the procedure or treatment discussed; and
  • A statement that physicians and non-physician practitioners, other than the operating practitioner, including residents, will be involved in the care of the patient and will perform important parts of the procedure or treatment, as allowed under state law and regulations, in accordance with the clinical privileges granted and/or scope of practice.

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

September 25, 2025

Posted on by jwilbert

QUESTION:
We use informational letters as a part of our peer review process.  Is it necessary for us to solicit physician input or feedback before issuing an informational letter?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:
The short answer is “no.”  But first, a little context on informational letters (which can also be referred to as “awareness letters”) – these are a tool in the progressive steps continuum that are designed to address minor performance issues and intended to make practitioners aware of expectations or requirements in, for example, the Medical Staff Rules and Regulations.  Much like the other tools you have in the progressive steps continuum, informational letters are non‑punitive and educational, and they aim to get practitioners to self‑correct using feedback.  Informational letters are triggered when a practitioner does not comply with an objective requirement for the Medical Staff.

Ideally, your multi‑specialty peer review committee should approve in advance a list of objective occurrences for when an informational letter will be sent.  By way of example, most Medical Staffs have requirements in the Rules and Regulations that patients have to be seen by the attending physician daily with a progress note recorded describing the visit.  This requirement could be reflected in your peer review policy or manual as a performance issue that triggers an informational letter.  The key here is that the informational letter is triggered by an “objective” occurrence.  Therefore, whether someone did or did not do something that triggers an information letter should be clear on its face and, because of this, there is usually no need to solicit feedback from the practitioner before issuing the informational letter.  However, if you are addressing an issue and considering an informational letter but have questions for the practitioner about the concern, nothing in your policy should prohibit you from asking those questions.

If you have a quick question about this, e‑mail Charlie Chulack at cchulack@hortyspringer.com

September 18, 2025

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, our Credentials Committee recommended the appointment of an applicant who had several very concerning red flags in his file including a questionable reference, employment termination, and a gap in his professional practice.  The Committee decided to interview the physician and was persuaded by his explanation which, in my assessment, amounted to blaming his former employer for a lack of commitment to quality.  I dissented and asked that my vote be recorded in the minutes.

I just learned that the Credentials Committee’s recommendation was placed on the consent agenda for the Medical Executive Committee (MEC) and the Board.  In our hospital, this means that none of the red flags were raised for review by the MEC or the Board.  Needless to say, the applicant was granted appointment and clinical privileges.

When concerns are raised about an applicant, shouldn’t these be brought to the attention of the MEC and the Board?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
There’s a lot to unpack in your question.  Let’s start with whether the Credentials Committee did its due diligence in reviewing the red flags you noted.  While there is nothing inappropriate with the Credentials Committee interviewing the applicant, the Committee should have done its homework first.  For instance, information should have been sought from the physician who provided the questionable reference.  Information about the termination should have been sought from the employer.  And, the physician should have been asked to explain the gap in his professional experience.  We recommend that all of this happen before the Credentials Committee reviews the application or interviews the applicant.

If we assume that this information was obtained, and the Credentials Committee was comfortable with the information received, and wanted to make a favorable recommendation, the red flags still should have been recorded and made available to both the MEC and the Board.

Every hospital handles their credentialing reports for initial appointment and reappointment in a slightly different way.  A consent agenda is not an unreasonable approach when the application is clean.  However, when an application is not clean, there should be an issues list, a summary, or a profile that is provided to members of both the MEC and the Board so they can make an informed decision.  If I were a Board member, I would be upset to learn that I was kept in the dark about issues that had been identified regarding an applicant.

Deciding how much information to provide to the MEC and Board requires a delicate balance.  Most hospitals expect the Credentials Committee to do the heavy lifting in reviewing applications and to make well-informed recommendations.  With that as a starting point, the MEC and the Board do not need to see the complete file of every applicant.

Providing the MEC and the Board with too much information can slow down the credentialing process and distract them from their other important functions.  But if the MEC and the Board do not have any meaningful information, it will be virtually impossible for them to make informed decisions.

In striking the balance in terms of what information should be provided to the MEC and the Board, consider the following:

  • Licensure actions, including: subject to investigation, previously subjected to restrictions, conditions, terms of probation, licensed in a state applicant never practiced;
  • Work history, including: unexplained gaps in work history; relocated multiple times in short period; subject to focused review or investigation;
  • Employment history, including termination with or without cause; and
  • Malpractice history, including: cases that involve unexpected death or serious injury or a pattern of malpractice judgments or settlements that is unusual for clinical specialty.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.  Join us later this fall for our new podcast “Crash Course in Credentialing” during which we will discuss a variety of challenging credentialing topics.

September 11, 2025

Posted on by Courtney Patterson


QUESTION:
We recently asked a physician for input about a complaint that had been filed about his interactions with other members of the healthcare team.  He immediately asked, “who filed the report?” Should we disclose that information?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Assuming this request for input occurred under your “routine” peer review process, the answer is a resounding “no,” as we want to protect the identity of those who are willing to come forward and raise a concern.

We always write our Professionalism Policy to say that the specific identity of any individual reporting a concern (or those who otherwise provide information about a matter) will not be disclosed to the practitioner.  The only exception would be if the individual who filed the report consents to the disclosure of their identity or where the information is later used to support an adverse professional review action that results in a Medical Staff hearing.

Of course, even if the identity of the reporter isn’t disclosed, the individual under review may guess or know who filed the report.  As such, it can be a good idea to remind the practitioner who was the subject of the report to avoid any actions that could be perceived as retaliatory, even if retaliation isn’t the intent.

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

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.