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!

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.

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.

QUESTION:
We are involved in an overhaul of our medical staff governance documents.  We put together a task force of system leaders to guide us through the process, including an advanced practice professional (APP).  Historically, our documents only referenced APPs in a single article.

The task force is being challenged to be more inclusive and integrate APPs throughout the documents, including as members of the medical staff, and as members of key committees like the Credentials Committee, Medical Executive Committee and the Peer Review Committee.  What are you seeing around the country?

ANSWER:
We are seeing change – you might even say a transformation – with respect to how APPs are addressed in medical staff governance documents.  As you suggest, historically, APPs were mentioned in a separate article of the bylaws or perhaps there was a separate policy to address how to credential and privilege them.

As licensing statutes have changed and, as the role of APPs in providing care in hospitals has continued to expand, questions about their involvement in the Medical Staff are now routinely being discussed and debated.  As is often the case, there is no single right answer. Each organization has flexibility and discretion to decide whether, when and how to incorporate APPs into their bylaws, with some exceptions.

Let’s start with the exception which is the requirement that APPs (including advance practice nurses and physician assistants), who provide a medical level of care, must be credentialed and privileged through the medical staff process.  Additionally, since APPs are granted privileges, their performance must be evaluated through the peer review process.

These requirements lend support for integrating APPs into your medical staff governance documents so you don’t need companion documents to address requirements pertaining to them.  However, whether they are members of the Medical Staff and what role they play on the Medical Staff is another question.

In our experience, many Medical Staffs are including an APP category in the Bylaws for “convenient reference” but clearly state:  “The APP Staff is not a category of the Medical Staff.”  More recently, we have seen Medical Staffs add an APP category (akin to the Courtesy or Consulting Staff) to the Bylaws.  This would afford APPs membership status but their rights and prerogatives would be very limited (e.g., no right to vote at the Medical Staff or department level, no ability to serve in a leadership position).

A few Medical Staffs are going a step further and identifying APPs as members of each category of the Medical Staff as long as they meet the patient contact or other criteria.  In these situations, to ensure compliance with the Conditions of Participation and accreditation standards, the Bylaw typically note that APPs are not eligible to serve as an officer or department chairperson.  The rules are different at critical access hospitals.

As you suggest, other key issues are whether to include APPs on committees like the Credentials Committee, Medical Executive Committee, and the Peer Review Committee.  While we won’t say there is a national consensus, we are definitely seeing a movement in this direction including a designated spot on these committees for an APP (usually appointed by the Chief of Staff or Medical Executive Committee).  Some Medical Staffs still want to clarify that the APPs are present to address APP issues but must leave when there is a credentialing or peer review issue pertaining to a physician, but most are not this restrictive.  And my personal bias is if you make an APP a member of a committee and expect them to show up and participate, they should have a right to vote.

And these are the easy issues.  The much tougher issues involving APPs are around required training, clinical privileges, and changes in practice.  We’ll leave these for another day.

QUESTION:
I heard that the Government might delay the implementation of the Surprise Billing Rules that are scheduled to go into effect on January 1, 2022.  Is that so?

ANSWER:
Partially.  On July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an Interim Final Rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021.  Effective January 1, 2022, the Interim Final Rule:

• affords patients protection against balance billing and cost sharing for certain out-of-network services;

• prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent;

• requires providers to disclose federal and state patient protections against balance billing; and

• describes complaint and dispute resolution processes for patients, payers and providers to address potential violations.

In an FAQ published on August 20, 2021, HHS said it will defer enforcement of the requirements to (1) make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges, (2) provide good faith estimate of expected charges, and (3) provide an Advanced Explanation of Benefits at least until July 1, 2022.  https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf

So, the bottom line is that the regulations are still scheduled to go into effect on January 1, 2022, but certain parts will not be enforced right away.

In the meantime, hospitals should begin to check their physician contracts, especially those with hospital-based providers like radiology, pathology, anesthesia and emergency medicine, to make sure they require the physicians to comply with the surprise billing rules and preferably require them to participate in any third-party payor programs in which the hospital participates.

Horty Springer and its partner LegalSifter will soon be announcing a new AI-empowered tool to make it easier to review your contracts for Surprise Billing compliance. Be sure to watch for it!