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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.

November 7, 2024

Posted on by Courtney Patterson

QUESTION:
We asked Grok AI “What do you know about HortySpringer?” Here is what it said.

ANSWER:
Based on the information available up to September 2024, Horty, Springer & Mattern, P.C. is a law firm based in Pittsburgh, Pennsylvania, with a specialization in healthcare law. Here’s what can be inferred or is directly known about them:

  1. Specialization: The firm focuses exclusively on healthcare law, which means they deal with a wide array of legal issues related to healthcare providers, including hospitals, health systems, HMOs, managed care organizations, and other healthcare entities.  Their expertise covers areas like medical staff bylaws, physician contracts, healthcare compliance, and more.
  1. History: Founded in 1971, the firm has over 50 years of experience in the healthcare sector.  This longevity suggests a deep understanding of the evolving landscape of healthcare law.
  1. Clientele: They serve clients across all 50 states and the District of Columbia, indicating a national reach and reputation in healthcare legal services.  This includes consulting with physician leaders, health system executives, and boards, suggesting they’re involved in high-level strategic and governance issues within healthcare organizations.
  1. Innovative Practices: HortySpringer has been recognized for innovation, particularly in how they deliver legal services.  They’ve developed tools like HortySpringer LegalSifter Essentials Edition, which combines legal best practices with AI to help clients manage contract reviews more efficiently.  This indicates an approach towards modernizing legal services with technology.
  1. Education and Training: The firm offers training programs like HortySpringer Pathways, aimed at hospital and physician leaders to manage and oversee medical staff, which underscores their commitment to not just legal advice but also in enhancing the operational capabilities of healthcare professionals through legal education.
  1. Publications and Engagement: They engage actively with the healthcare community through newsletters like the Health Law Express, indicating a commitment to keeping their clients and the broader healthcare community updated on legal changes and best practices.
  1. Legal Expertise: Their involvement in cases and discussions around significant legal issues like the PSQIA (Patient Safety and Quality Improvement Act) and the implications of Supreme Court decisions on healthcare indicates they’re not just practitioners but also contributors to the legal discourse in healthcare.
  1. Size and Structure: The firm has around 14 attorneys, all based in Pittsburgh, focusing solely on health care, which might suggest a boutique yet highly specialized approach to legal services.

In summary, Horty, Springer & Mattern, P.C. is recognized for its deep expertise in healthcare law, innovative service delivery, and a comprehensive approach that includes legal advice, education, and active engagement in healthcare policy and legal developments.  Their focus on healthcare governance, compliance, and operational support for healthcare entities makes them a notable entity in the legal landscape of healthcare in the U.S.

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

October 31, 2024

Posted on by Courtney Patterson

QUESTION:
We are working on rewriting our Medical Staff governance documents and noticed that the discussion draft of the Medical Staff Bylaws prepared by HSM attorneys includes the details on histories and physicals.  Why are the specifics of histories and physicals included in the Bylaws instead of the Medical Staff Rules and Regulations?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a question and answer (but mostly the answer) that has perplexed us for quite some time so we understand any confusion.  The Centers for Medicare & Medicaid Services (“CMS”) Conditions of Participation (“CoPs”), which are the federal regulations with which hospitals must comply to participate in the Medicare and Medicaid programs, require the Medical Staff Bylaws to include certain details on histories and physicals, including those related to timing, practitioner eligibility for completion, use of histories and physicals performed before admission or registration, and options for using an “assessment” for outpatient surgical or procedural services.  See 42 C.F.R. § 482.22(c)(5).  Accreditation entities have followed suit and also require this information related to histories and physicals to be in the Bylaws.  See, e.g., The Joint Commission, Standards & EPs, MS.01.01.01, EP 16 (“The medical staff bylaws include…[t]he requirements for completing and documenting medical histories and physical examinations.”).

In the past, we assumed that CMS was using “Bylaws” in the CoPs generally to encompass any of the Medical Staff governance documents, including the Rules and Regulations.  Thus, if a hospital was using a separate document approach (i.e., Bylaws, Credentials Policy, Organization Manual, Rules and Regulations, etc.), histories and physicals could be addressed in the Rules and Regulations.  This makes sense because the Rules and Regulations, traditionally, cover the rules for clinical services and the provision of care, such as those related to admissions, orders, consultations, surgical services, and anesthesia.  The rules for histories and physicals would be a logical fit for the Rules and Regulations.  However, we received feedback from CMS that the details on histories and physicals specified in the CoPs must be included in the Bylaws document itself.

Some medical staffs with which we have worked include only what is required by CMS in the Bylaws and then include additional details on histories and physicals (e.g., the details of the examination and documentation of the examination) in the Rules and Regulations.  This is perfectly acceptable but results in fragmentation and documents that are difficult to reference for purposes of discovering all the requirements for histories and physicals.  It may be easier to simply include all the specifics on the topic in the Medical Staff Bylaws with a cross-reference in the Rules and Regulations to the appropriate section, article, or appendix of the Bylaws.

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

October 24, 2024

Posted on by Courtney Patterson

QUESTION:
After attending HortySpringer’s Peer Review Clinic in Amelia Island earlier this year, we decided to ramp up a multi-specialty peer review committee to provide oversight over what has traditionally been a department-based process at our hospital.  We are struggling with what kind of information that new committee should share with our MEC.  Any tips or suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
First off, thanks for attending the PRC! We are glad to hear our recommendations were helpful!

As it relates to your question, we recommend that your MEC not be given detailed, practitioner-specific information about individual cases that the multi-specialty peer review committee is reviewing.  There are several reasons for this recommendation:

  • If a peer review matter cannot be successfully resolved by the peer review committee, the matter may end up on the MEC’s agenda. If the MEC has been receiving detailed, practitioner-specific reports throughout the review process leading up to that referral, the physician under review may allege that the MEC has already “pre-judged” the matter and were biased by all the sound bites it received from the peer review committee.
  • The MEC is the only Medical Staff body that can recommend or take disciplinary action with respect to a physician, so to promote positive engagement with the peer review process, we like to keep the MEC out of day-to-day “routine” peer review matters. We have found this can help change the perception of peer review from one that has traditionally been viewed as punitive to one that is educational and constructive.
  • Providing practitioner-specific details to the 20 or 30 people who are in the room at your MEC meetings can undermine the principle that the peer review process is confidential.

All of the above has led us to believe that the MEC can satisfy its legal responsibilities to oversee the peer review process by reviewing aggregate, anonymized reports regarding the activities of the peer review committee, without having to give practitioner-specific details.

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

December 8, 2022

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to provide additional information regarding a question that she answered on our application form about a pending malpractice action because she says that her lawyer told her it could jeopardize her position in the pending litigation.  The physician’s description of the pending case is unusual and does cause concern regarding the privileges she is requesting and we think the information being requested 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?

OUR 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 somewhat 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 made an application.  The physician argued that he received legal advice that signing the release could compromise his lawsuit against that hospital, which had revoked his privileges.  The court held that because the physician had not provided the additional information that the hospital requested regardless 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.  Bottom line, the caselaw is very strong in this area in terms of supporting hospitals and medical staffs that are requesting information from applicants relevant to an assessment of their qualifications – do not be thrown off course by lawyers!

October 27, 2022

Posted on by Courtney Patterson

QUESTION:
A few weeks ago, an OB resigned from our medical staff to take an opportunity out of state.  Well, one of the OB’s cases was flagged this week by a peer review specialist who sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is rather common, but always a little tricky.  Because the OB is no longer a member of your medical staff, we would advise that peer review of that OB’s medical services provided at your hospital should be discontinued.  The purpose of peer reviewing a specific physician is to ensure and improve quality; this purpose can no longer be effectuated if the OB has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as asking the OB questions about the case, having the OB complete additional training, or monitoring a few of the OB’s cases at the hospital).

Also, depending on state law, a malpractice attorney may argue that the peer review privilege no longer applies to reviews conducted after the OB has left the medical staff.  Finally, if the OB turns around and sues the hospital for whatever reason, continuing peer review of the OB after their departure may give an eager plaintiff’s attorney something to leech onto (e.g., allegations that the purpose of the review is to harm the physician).

This does not mean the case should completely evaporate and if any system-issues were identified outside of the care being provided by the OB, then those system-issues are still prevalent and should be addressed.  We would just advise that any issues related to the OB’s practice at the hospital be put aside.

June 2, 2022

Posted on by Courtney Patterson

QUESTION:
As part of our routine peer review process, we’re doing a better job of getting input from the physician under review. When we recently asked a physician for comments on a behavioral concern that had been raised, the physician asked who filed the report. Should we disclose that information?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
No. You mentioned that this review is occurring as part of your routine peer review process. At this stage in the peer review process, we recommend erring in favor of protecting the identity of those who are willing to come forward and raise a concern.

In most cases, particularly with clinical concerns, the identity of the person who raised the issue is irrelevant. The matter will be evaluated based on what’s in the medical record.

With behavioral concerns, there are often multiple people who witnessed the conduct that is being reviewed. Assuming those witnesses are interviewed, and they corroborate the concern raised by the person who reported, the identity of the person who reported is irrelevant.

Even where the identity of the reporter isn’t disclosed, the physician under review can sometimes guess who filed a report. Thus, it’s useful to gently remind physicians to avoid actions that could be perceived as retaliatory, even if retaliation isn’t the intent.

The answer would be different in settings where a physician’s clinical privileges could be restricted, for example, during a Medical Staff hearing. In that case, the physician should be provided access to the same documents considered by the hearing committee.

For additional tips relating to peer review, join us for July’s Grand Rounds – Top 10 Tips for Effective Peer Review of Clinical Concerns.