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April 2, 2026

Posted on by Courtney Patterson

QUESTION:
My wound care practice has been getting excellent results curing patient wounds, bed sores, and ulcers by using Bioengineered Skin Substitutes (“BSS”).  I realize that these BSS products are expensive, but they WORK!  Despite our excellent clinical results and after doing our best to follow Medicare’s confusing billing guidance, we were just informed by something called the local Unified Program Integrity Contractor (“UPIC”) that our use of the BSS was not medically necessary (despite the fact that the BSS cured the patients’ wounds) and are claiming that a significant refund is due the Medicare program.  Is this for real???

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Unfortunately, yes.  While it may be of little solace to you, a number of providers across the country are finding themselves in your exact situation.  Your only recourse is to refund the amount demanded or run the gauntlet of the Medicare’s appeals process.  But if you are going to appeal (and from the sound of your question you should), make sure you do so in time to avoid any recoupments taking place during the appeals process (to the extent that is possible).

You and other similarly situated legitimate providers are paying the price for Medicare’s lax oversight for the payment of BSS and some egregious actions by a few providers – who deserve whatever happens to them.

Medicare’s current shortsighted approach to BSS providers fails to recognize, what you already know from your clinical experience, that BSS when applied properly to suitable candidates is actually cost-effective care that reduces avoidable complications, including amputations, minimizes the need for acute care services, enhances patient care, patient quality of life, and patient satisfaction and allows a provider such as yourself to deliver high-quality, patient-centered wound care to the ever-increasing need for specialized wound care among the aging and medically complex populations suffering from complex wounds, bed sores, and ulcers.

First some background.  Medicare covers BSS, including some amniotic membrane allografts made from human placental tissue and even animal tissue like pork placenta. I know, sounds gross, but the way that these BSS work is that they are grafted to an open wound to cover the wound and the human placental tissue or animal tissue used in the BSS will assist with wound closure or skin growth, referred to as “scaffolding.” When used properly on suitable patients, BSS can provide really impressive improvement to horrendous wounds, bed sores, and ulcers that do not respond to traditional therapy.

So, the idea behind BSS is great, but they are EXPENSIVE.  The 2026 Physician Fee Schedule has an entire section devoted to payment for BSS.  That section of the Fee Schedule states that Medicare payment for BSS has increased 40 fold over the past several years, from $250 million in 2019 to over $10 billion in 2024.  So, Medicare drastically changed its coverage rules beginning January 1, 2026.  Many commercial insurers are even more restrictive in their coverage of BSS and you need to be sure to follow the rules of each insurer before submitting a claim for BSS.

The UPIC that you asked about conducts the first level of Medicare audit.  They are focused on BSS and seem to be hell-bent on demanding that providers repay the amount that has been paid to them by Medicare whenever and however they can.  They also have the right to begin to recoup the amount due on the claims at issue.  While you have 180 days to appeal the UPIC’s decision, if you do not file the first level appeal (called a Redetermination) with your local MAC within 60 days of receipt of the UPIC decision, Medicare will start recouping claims regardless of the validity of your argument on appeal.

Do not expect any relief from the MAC and again while you have more than 60 days to appeal the MAC’s denial, you must submit your Reconsideration Request to your local Qualified Independent Contractor (“QIC”) within 60 days of the MAC’s denial, or recoupment can begin.

The QIC is to make a decision within 60 days.  However, recently they have been running behind.  If the QIC takes longer than 60 days to make a decision, the QIC will write to you and give you the option to go directly to the next level of appeal – which is an Administrative Law Judge (“ALJ”).  While it is tempting to have your case heard by a supposedly independent administrative judge, please keep in mind that in the unlikely event that the QIC rules in your favor, the appeal to the ALJ will not be necessary.  But more importantly, in the event that you choose to appeal to the ALJ (or if there is an adverse decision by the QIC) then recoupment of the claims at issue can begin immediately – again regardless of the validity of your position that the claims for the BSS were medically necessary and submitted in accordance with Medicare’s coverage rules.

We hope you won’t need them, but there are two additional levels of appeal if the disputed claims are not resolved by the ALJ – an appeal to the Medicare Appeals Council Review and a review by the Departmental Appeals Board (“DAB”), and if that appeal is not successful you will have the right to seek judicial review by a federal district court, provided the amount in controversy is met (which in these cases it almost always is) – but you must exhaust all of these administrative remedies or the federal courts will not consider your appeal.

The other reason that Medicare is cracking down on BSS, is that due to Medicare’s past lax oversight of claims for BSS, certain people have been able to defraud the Medicare program for some REALLY BIG BUCKS.  We direct you to our next Episode of “The Kickback Chronicles” that will be entitled “A Grafting Grifter” and will be published on April 13 to learn about a situation that arose in Phoenix, Arizona where a couple of grifters were able to bill approximately $1.2 BILLION in false and fraudulent claims to health insurance programs for BSS, including submitting over $960 million in claims to the federal health care programs for BSS, of which, federal and state payers and commercial insurers collectively paid $614,945,420.

You will have to wait until April 13 to check out the next edition of The Kickback Chronicles in order to find out the details of their scheme, the lavish lifestyle they lived due to their ill-gotten gains, and what happened when it all came crashing down on them.

That kind of enforcement action we applaud.  What Medicare is currently doing to you, and to a number of other legitimate providers across the country who are using BSS to help their patients, is the real crime.

If you have a quick question about this, e-mail Henry Casale at info@hortyspringer.com.

March 26, 2026

Posted on by Courtney Patterson

QUESTION:
We are seeing Emergency Department wait times of several hours.  Can we post these wait times publicly, like, for example, online or at the entrance to the hospital?  And before a patient is formally logged in, can staff tell the person how long the wait is?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:

This is a great question and one that hospitals are asking with increasing frequency.  As a general rule, posting ED wait times should be approached with caution because of the potential implications under the Emergency Medical Treatment and Labor Act (EMTALA).  The concern is that publicly posting or verbally sharing estimated wait times may unintentionally encourage patients to “self triage” and decide to leave before receiving the medical screening examination required by EMTALA and needed by the patient.  The Federal Regulations and EMTALA Interpretive Guidelines emphasize that hospitals must not delay or discourage a patient from remaining for their medical screening examination.  (42 CFR 489.24 Tag A-2408/C-2408) Another concern with posting wait times is that these estimates also may not reflect sudden changes in acuity or patient volume.

Once an individual has arrived seeking care, it becomes even more sensitive.  While staff may answer a patient’s questions, proactively telling a patient the wait time or suggesting that they might prefer to seek care elsewhere can be viewed as discouraging them from staying.  That raises EMTALA risk.  Staff should focus on reassuring patients that they will be evaluated and treated.

Professional organizations, including the American College of Emergency Physicians (ACEP), have issued guidance for hospitals that choose to communicate wait times.  ACEP recommends that:

  • ED wait time be defined consistently as “door to qualified medical provider” time;
  • Disclaimers clarify that wait times do not apply to those with potentially life-threatening conditions;
  • Posted times be updated frequently and remain as accurate as possible; and
  • Public communication be accompanied by clear educational messaging so patients do not misunderstand their ability to receive timely care.

Overall, because of the EMTALA implications, posting or discussing ED wait times should be done very carefully, if at all.  If your hospital chooses to display wait times, make sure the information is accurate, updated regularly, and accompanied by appropriate disclaimers.  It is also important to reinforce that anyone with a potentially life-threatening condition will be evaluated immediately.

If you have a quick question about this, e-mail Fisher Filippazzo at ffilippazzo@hortyspringer.com.

March 19, 2026

Posted on by Courtney Patterson

QUESTION:
Your Question of the Week a few weeks ago provided a bunch of good tips for handling external reviews (that we had happily followed!), but it didn’t address one big issue our peer review committee is wrestling with right now.  Specifically, our committee arranged for an external review on a highly technical procedure that only one member of our medical staff performs that had resulted in a number of patient complications.  The issue that we are struggling with right now – with a difference of opinion among the committee members – is whether we need to show that report to the physician.  Some members of the committee think we will waive the peer review privilege if we do, while others disagree and say we have to show her to be fair.  Do we?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of waiving the peer review privilege, every state is different and you certainly should consult your legal counsel to make sure you are operating within the terms of what your state might require; however, it would be a rare/unusual statutory provision or court interpretation that would result in the peer review privilege being waived by a peer review committee sharing an external review with the physician whose care was being reviewed – when it is being done in order to allow that individual to provide additional input into the review.  That kind of interaction is at the heart of the peer review process itself.

Presuming waiver of privilege is not an issue, then yes, in order to be fair to the physician, we do strongly recommend that individuals whose care is the subject of an external review be given the opportunity to review those reports and to provide a response.  Ideally, this means that the report is provided to the individual in advance and the physician is given a period of time in which to review and provide a written response to the committee versus, for example, merely allowing the physician to review the report for the first time at the peer review committee meeting.  The goal of peer review is for the committee to have full and complete information before it makes a determination, and an informed and thoughtful response from the physician at issue is vital.

Sometimes, the concern that we hear raised is that the physician may contact the external reviewer, trying to lobby them to change their opinion, or even harass or threaten that individual.  If that is a concern, it can be addressed in advance by informing the physician that attempts to contact the external reviewer are inappropriate and would be assessed under the medical staff’s professionalism or code of conduct policy.  And in extreme cases, where the committee is truly concerned about the potential of such conduct, an alternative may be to provide a summary of the reviewer’s credentials and the body of the report only, deleting the external reviewer’s name and contact information – explaining why the committee took that step in the correspondence to the physician.

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

March 12, 2026

Posted on by Courtney Patterson

QUESTION:
This week’s question is taken from those submitted at the January 15-16, 2026 Complete Course for Medical Staff Leaders, held in Amelia Island.

Sometimes it’s very tempting to call a colleague you may know at another hospital to clarify the details of an applicant.  While I believe this is done routinely, is it legally permissible if the applicant has not declared this person a reference?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
As a general rule, it is perfectly acceptable (and appropriate) to contact anyone who may have any information that is relevant to an applicant’s qualifications.

This is America – so of course this has been litigated.  Check out what the United States District Court for the District of New Jersey said in this 2014 case (where a physician alleged wrongdoing by a Credentials Committee chair, who contacted individuals not listed by the applicant on her application):

“As to [the Credentials Chair’s] request for information from non‑references…affirmative contact with these individuals, that is, without prior clearance for such action from Dr. Pal, reflects a diligent and comprehensive investigation in connection with her application for privileges…”

Pal v. Jersey City Medical Center (D.N.J. Oct. 24, 2014)

So, who can you contact?  Anyone who may have information about the applicant’s clinical skill, experience, training, professional conduct, health status, etc.  You likely have a statement in your Medical Staff Bylaws and on your Medical Staff application forms that states something to this effect (virtually all organizations do).

The “usual suspects” for affiliation verifications/references include other health care facilities where the applicant is employed or has been employed, or has held medical staff membership or clinical privileges.  Department chairs from current and previous organizations, as well as residency program directors (if recently out of training), and current and past employers are also often contacted.

But, what about a nurse supervisor at a facility that has reported interpersonal conduct issues by the practitioner?  What about the applicant’s arresting or probation officer?  An ex-wife who filed a restraining order?  Yes to all of these!  Anyone who may have information relevant to the qualifications of the practitioner to be a medical staff member (including maintaining orderly operations of the hospital) or to exercise privileges (including anyone who may have information about health status, reliability, clinical performance, education, training) can be contacted and asked for information.

To get back to your question – you specifically asked whether you can contact a colleague you know.  Of course (as noted above), the answer is yes (we really do mean anyone who may have information about the applicant, including anyone who may be able to share real life observations or other information).  But, here’s the kick – whenever you request and/or obtain information about an applicant, that should be documented in the credentialing file.  Therefore, before you call in a personal favor to a friend, realize that your contact with that individual needs to be documented in the file and anything they tell you will not be “off the record.”

So, if you plan to contact a personal friend, acquaintance, or colleague to request information, remember to treat the contact and request with the same formality that you would treat other requests.  If you are asking for important information, trying to clear up concerning rumors or verify whether the applicant has made a misrepresentation, etc., it may be best to make the request for information in writing (and to supply a copy of any authorization/release that your applicant has signed).

Never promise that information revealed to you will be kept secret (this is a promise you cannot keep!).

And, if your friend/colleague holds a leadership position at another facility (e.g., they are the chair of credentials or department chair at the facility where the applicant recently held privileges), remember that they have legal obligations of confidentiality with respect to their proceedings as medical staff leaders and when they act in those roles they are agents of the facility.  Accordingly, it may be best in those cases to direct your request to the facility itself, rather than the individual (so that the individual is not put in a difficult position).

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

March 5, 2026

Posted on by Courtney Patterson

QUESTION:
There is a new GI on our staff who had a concerning number of complications during his initial focused professional practice evaluation.  To make sure our process was completely objective, we decided to get an external reviewer to evaluate some of the cases with complications.  Instead of sending all of the cases of concern, we sent a sample which reflected the various kinds of complications the GI had during his first eight months of practice.  We thought this would allow us to expedite the review and save a little money at the same time.  Is this ok?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Obviously, you’ll want to review and follow your peer review policy.  In our experience, most peer review policies would not be detailed enough to address your question and thus you should have some flexibility to decide which cases you want to send for external review.  You are correct that the cost of the external review will increase with the number of cases and the length of time it takes to get the report back may also increase with the number of cases.  Those are relevant practical considerations.  At the same time, you may want to send enough cases so the external reviewer is able not only to comment on the individual case but also whether there is a pattern or trend of care that might be concerning.

You can also stage the review, starting with a smaller sample size and then adding additional cases if you want the reviewer to address the broader question of whether there may be a pattern of concerning care.  It can often be helpful to provide the reviewer with information about the physician’s overall case volume and complication rate.  You should also not hesitate to confer with the external reviewer after they have provided you with their report.  These meetings can often be very instructive, especially if concerns have been confirmed in the report, to help you frame and implement remedial actions.

The bottom line is you want to make sure you follow your peer review policy.  At the same time, you probably have a lot of flexibility and discretion in deciding how many and what kind of cases to send to the external reviewer.  If you have a lot of cases of concern, you may want to stage the review to make sure you are getting the most out of the review.

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

February 19, 2026

Posted on by jwilbert

QUESTION:
The physician group practice that is affiliated with our health system wants to develop a peer review process for outpatient practitioners.  Does this make sense and, if so, what are some considerations in setting up such a process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:

Even though an answer to this question involves an evaluation of the unique circumstances of the group practice, there has been a significant increase in interest in this topic.  In our experience, the motivation for wanting an outpatient peer review process makes sense.  The groups with which we have worked are interested in enhanced mechanisms and processes to better evaluate clinical care and address conduct concerns for ambulatory care practitioners, rather than solely relying on the human resources/employment process.  They are also interested in taking advantage of any available peer review protections under state law that may only apply if there is a peer review structure in place.

An outpatient peer review process can be modeled on the process for your hospital’s medical staff.  However, the structure is usually scaled down.  For example, Clinical Specialty Review Committees, if being used for specialty reviews and expertise as a part of the Medical Staff peer review process, are generally not needed for outpatient peer review (but, as noted below, you want to reference your state’s peer review statute to confirm that any chosen structure maximizes protections under the law).  Instead, you can rely on Clinical Specialty Reviewers or assign a member from the outpatient peer review committee who has the specialty expertise or knowledge to perform the case review.

As noted above, an additional consideration is your state’s peer review statute.  If the statute contemplates peer review protections for outpatient peer review, you want to make sure that your process is set up to take advantage of those protections.  By way of example, Colorado law discusses “professional review committees” of “authorized entities” (e.g., hospitals and physician groups).  These professional review committees may share information with one another – for example, from hospital to group and group to hospital.  The committees and their individual members are entitled to certain immunities from liability, and the records of professional review committees are confidential and privileged.  However, for these protections to apply under Colorado law, the authorized entity and professional review committee must have statutorily required policies and procedures in place describing, among other things, hearing and appeal rights for practitioners.  The professional review committee also has to register with the state.  Thus, any peer review policy for an outpatient professional review committee will need to have these requirements addressed to be eligible for the protections in Colorado.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.  Also, tune in to The Brave New World of Ambulatory Peer Review, a podcast from Horty, Springer & Mattern attorneys Ian Donaldson and Charlie Chulack will be available on Wednesday, February 25, 2026 for more on this topic.

 

February 5, 2026

Posted on by Courtney Patterson

QUESTION:
Our hospital recently received a request from a former Medical Staff member for a complete copy of her credentials and peer review files.  Are we required to provide the copies as requested?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While you always need to check your state law, in most states a hospital would not be required to provide a former Medical Staff member (or even a current member) with a copy of her credentials and peer review files.  (This is different than an HR file, as most states do require that employees be granted access to personnel files.)

To avoid any confusion when these types of requests are made, we recommend hospitals adopt a policy that governs access to credentialing and peer review files.  For existing members, the policy might describe the rules for accessing “routine” and “sensitive” documents, with sensitive documents receiving special protection (for example, names of those who raised a concern will be redacted).  For former members, the policy could state simply that copies will not be provided (assuming that is consistent with state law), but that the hospital will respond to credentialing requests from other hospitals so long as the former member has signed the appropriate authorization and release.

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

January 29, 2026

Posted on by Courtney Patterson

QUESTION:
One of the new members of our Peer Review Committee is adamant that we should not be using the term “investigation” when referring to the review of a provider’s care. What is the big deal with using that term?

ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The term “investigation” is a loaded term in the Medical Staff world. Because of that, it is very important that we are careful in how we throw that term around, and that we only use it when it is truly appropriate.

The term “investigation” should be reserved for only when the Medical Executive Committee has made the determination to employ the formal investigation process laid out in your Medical Staff Bylaws.  The formal investigation process is that very long section in your Bylaws that details appointing an investigating committee, explains how investigations are handled, outlines hearing rights, defines rights to an appeal, and so forth.  Additionally, we want to be specific as to when a formal investigation has begun because it carries legally required notice requirements and potentially reporting requirements.

For that reason, when other Medical Staff committees are engaging in routine review activities – such as taking a closer look at cases referred for peer review or interviewing individuals as part of the peer review process – we should avoid calling those activities an “investigation.”  Using that term outside its formal meaning risks confusing informal review with the official investigation process required by the Bylaws.

Instead, we recommend using other terms – such as review, assessment, evaluation, or fact‑finding – when referring to these non‑formal activities.  While this distinction may seem subtle, it can be crucial if the committee’s actions are ever subject to legal scrutiny.

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

January 22, 2026

Posted on by Courtney Patterson

QUESTION:

We are currently reviewing the application of a physician and have encountered several red flags during credentialing.  Our main concern is that the physician failed to disclose on his application a prior hospital where he practiced and where his privileges were restricted – information we uncovered through a National Practitioner Data Bank query.  Throughout the process, the physician has been largely unresponsive and difficult to work with, and he has explained the omission as an oversight by his office staff. Given the nature of the restriction, however, it seems unlikely this affiliation would be easily forgotten.  How should we proceed if we believe the explanation may not be truthful?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
While some misstatements and omissions on application forms may be benign, others can be serious, and your concerns are well founded.  Because this is the applicant’s first interaction with the Medical Staff, it is important that they make a strong impression.  Beginning that relationship with potentially intentional omissions may signal future issues if the applicant is appointed and granted clinical privileges.

If you do not already have one, consider incorporating into your Medical Staff Bylaws an administrative process that addresses an applicant’s failure to disclose pertinent information on their application.  Specifically, the Bylaws should state that the hospital will stop processing the application upon discovery of a misstatement or omission.  The applicant should then be notified of the issue and given an opportunity to respond, after which the hospital may determine whether to resume processing the application.  We also recommend including corresponding language in the attestation the applicant signs upon completion of the application.

Because this is an administrative issue – not an adverse recommendation – the Bylaws should make clear that a decision to stop processing an application due to a misstatement or omission is not a “denial” and does not give rise to hearing or appeal rights.  In other words, the hospital isn’t rejecting the application based on the physician’s competencies, training, or experience.  The application simply won’t move forward because the applicant failed to fully or accurately disclose information needed to fully vet his application.

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