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June 19, 2025

Posted on by Courtney Patterson

QUESTION:
A physician smelled of alcohol and was behaving oddly during rounds.  The physician refused to undergo a screening test, so the Medical Staff leadership imposed a precautionary suspension.  Is there a better way?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Yes!  First, hospitals should have a Practitioner Health Policy that governs health issues affecting privileged practitioners.  Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event.  A Practitioner Health Policy allows Medical Staff leaders to adopt practices and procedures that work in your setting and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above.  The first step is for the Policy to identify who may respond to handle such situations.  We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment.  Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO).  Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues).  This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others.  Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension.  A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague.  A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

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

June 12, 2025

Posted on by Courtney Patterson

QUESTION:
One of the members of our Bylaws Committee said that she heard that we shouldn’t be including our hospital’s Institutional Review Board (“IRB”) in the Bylaws with all of the other medical staff committees even though this is where it has always lived at our hospital.  Is that true?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes.  The federal Food and Drug Administration regulations pertaining to IRBs, 21 C.F.R. §56.101 et seq., define an IRB as “any board, committee, or other group formally designated by an institution to review, to approve the initiation of and to conduct periodic review of biomedical research involving human subjects.”  (Emphasis added.)  The Department of Health and Human Services’ regulations echo the “institutional” aspect of the formal designation of IRBs (45 C.F.R. Part 46).  Federal regulations require the IRB to be a committee formally designated by a hospital’s Governing Board to review biomedical research involving human subjects at the hospital.

This issue gained momentum in research audits performed by both the Office of Human Research Protections and the Food and Drug Administration in the recent past with the relevant agency taking issue with the fact that the hospitals included their IRBs as one of several “medical staff committees” that lived in a medical staff governance document like the medical staff bylaws.  The auditors pointed generally to the regulatory language, that it is an institutional responsibility to maintain an appropriate IRB, not a medical staff responsibility.  As a practical matter, the concern is that (while very unlikely) if the IRB procedures need to be revised because of a regulatory change, the medical staff could refuse to do so, as is contemplated by the amendment process to these rules.  By comparison, if the IRB is a hospital committee, hospital administration and/or the Board could implement a change on its own action.  Again, while the likelihood of a Medical Executive Committee or a medical staff as a whole acting in such an obstructionist manner is very slim, in the eyes of the audit agencies, it is a valid concern.

Therefore, we recommend that the IRB be created by a Board resolution and thereafter function as a committee of the hospital, rather than the medical staff, with its independent authority derived from the Board.  There may be substantial overlap of the IRB membership with that of a medical staff committee.  However, the IRB should be constituted as a separate committee of the Board in accordance with the membership requirements set forth in the federal regulations.

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

June 5, 2025

Posted on by Courtney Patterson

QUESTION:
We are in a two-hospital town and our neighbors across town have become lax with their on-call schedule.  Even though this other hospital has numerous physicians in certain specialties, it keeps transferring ED patients to us because it doesn’t have anyone on call in that specialty who can treat the patient.  Our physicians feel like they’re on call for the other hospital as well as our own.  Do we have to accept these transfers?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:

Unfortunately, the answer is yes.  While a receiving hospital has the right to refuse a request for a “lateral” transfer, if the receiving hospital has “specialized capabilities” (and capacity), then the receiving hospital must accept the patient.

EMTALA itself lists burn units, shock trauma units and neonatal units as examples of “specialized capabilities.”  However, courts and CMS have taken the position that an on-call physician also constitutes a “specialized capability.”  Thus, if your hospital has an on-call physician available, and the hospital proposing the transfer doesn’t have an on-call physician available, your hospital must accept the transfer if it has the capacity to take care of the patient.  This is true even if the sending hospital has specialists on its staff who could treat the patient if they were on call (but who are not actually on call).  This requirement has put hospitals and on-call physicians in a difficult position and continues to make EMTALA compliance a challenge.

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

May 29, 2025

Posted on by Courtney Patterson

QUESTION:
Can a hospital operating multiple campuses under a single CCN number have an exclusive contract with a physician group to exercise clinical privileges at one campus and an exclusive contract with another group to exercise privileges at another campus?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The guidance we have received over the years has been that if a Medicare‑certified hospital has multiple campuses, clinical privileges cannot be limited solely to one campus.

This guidance is based on reading the Medicare Conditions of Participation and the official Interpretive Guidance issued by CMS in conjunction with the provider‑based rules.  The COPs and Interpretive Guidance state:

42 CFR §482.22 Condition of Participation: Medical Staff
The hospital must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital.

Interpretive Guidelines §482.22
The hospital must have one medical staff for the entire hospital (including all campuses, provider‑based locations, satellites, remote locations, etc.).  For example, a multi‑campus hospital may not have a separately organized medical staff for each campus.  On the other hand, in the case of a hospital system, it is permissible for the system to have a unified and integrated medical staff (hereafter referred to as a “unified medical staff”) for multiple, separately certified hospitals.  The medical staff must be organized and integrated as one body that operates under one set of bylaws approved by the governing body.  These medical staff bylaws must apply equally to all practitioners within each category of practitioners at all locations of the hospital and to the care provided at all locations of the hospital.  The medical staff is responsible for the quality of medical care provided to patients by the hospital.

The provider‑based rules state:

42 CFR §413.65 (d) Requirements applicable to all facilities or organizations.  Any facility or organization for which provider‑based status is sought, whether located on or off the campus of a potential main provider, must meet all of the following requirements to be determined by CMS to have provider‑based status:

***

(2) Clinical services.  The clinical services of the facility or organization seeking provider‑based status and the main provider are integrated as evidenced by the following:

(i) Professional staff of the facility or organization have clinical privileges at the main provider.

This essentially means that while a hospital with multiple campuses could have an exclusive contract that limits the exercise of clinical privileges to members of the group at all campuses and provider‑based locations, an exclusive contract limiting the exercise of privileges to physicians in the contracting group to one campus would not work since other physicians with privileges at the other campuses could claim that they have the right to exercise those privileges system‑wide.

Aside from the CMS rules, a hospital would be bound by exclusivity provisions in existing hospitals, so if there is an exclusive contract in place covering all locations, the hospital would be in breach of contract if it allowed physicians outside the group to exercise clinical privileges at another hospital.

The risk of non‑compliance with this interpretation of the rules is most likely a citation on a survey (either a routine one or one triggered by a complaint) which could be easily fixed by allowing privileges to be exercised at each campus.

Moreover, notwithstanding the rule that privileges extend to each campus, a physician can always choose to only practice at one campus, and if the physician is employed by the hospital or health system, the employer could tell the physician that he or she must limit the exercise of privileges to specific campus(es).

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

May 22, 2025

Posted on by Courtney Patterson

QUESTION:
Can we add advanced practice professionals to our on-call schedule for our emergency department?

ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Short answer:  nope.  Including APPs on the on-call list is prohibited by the Emergency Medical Treatment and Labor Act (“EMTALA”).  Under EMTALA, hospitals with emergency departments are required to provide Medical Screening Examinations to anyone who presents to the hospital seeking emergency care, regardless of their ability to pay.  A key component of EMTALA compliance is the requirement that hospitals maintain a list of on-call physicians who can provide the necessary treatment to the patient.  Specifically, CMS guidelines state, in part:

The list of on-call physicians must be composed of physicians who are current members of the medical staff or who have hospital privileges.  If the hospital participates in a community call plan, then the list must also include the names of physicians at other hospitals who are on call pursuant to the plan.  The list must be up-to-date, and accurately reflect the current privileges of the physicians on call.  Physician group names are not acceptable for identifying the on-call physician.  Individual physician names are to be identified on the list with their accurate contact information.

CMS recognizes that advanced practice professionals, like physician assistants and nurse practitioners, are increasingly integral to emergency department care and, therefore, can perform medical screening examinations as “Qualified Medical Personnel (QMP)” within their scope of practice and in accordance with hospital bylaws.  Moreover, if permitted under hospital policy, the on-call physician may send an APP as the physician’s representative to appear at the hospital and provide further assessment and stabilizing treatment.  However, the on-call physician remains ultimately responsible for providing the necessary care, regardless of who appears in person.

It is also important to note that, in the event the ED physician disagrees with the on-call physician’s decision to send an APP and, instead, requests the on-call physician to present to the ED, then the on-call physician is required under EMTALA to appear personally.  Therefore, it’s recommended that the decision to send an APP be made in collaboration with the ED physician.

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

May 15, 2025

Posted on by Courtney Patterson

QUESTION:
We recently required a member of our Medical Staff to meet with the Medical Executive Committee as an “escalated” step of encouraging this physician to change her behavior that has gone on for a number of years.  She said that she’d be happy to attend the meeting, but only if accompanied by her attorney.  Our policies do not address this issue – do we have to let the attorney attend our meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No.  The meeting is not a hearing.  It’s simply an opportunity for physicians to talk with one another in a collegial manner.  There’s no legal obligation to permit an attorney to attend, and the presence of an attorney would likely make the process less effective by making it seem more confrontational than it needs to be.

It’s much easier to address this situation when the policy addressing professional conduct includes language such as the following:

To promote the collegial and educational objectives of this Policy, all discussions and meetings with a Practitioner shall generally involve only the Practitioner and the appropriate Medical Staff Leaders and Hospital personnel.  No counsel representing the Practitioner or the Medical Staff or the Hospital shall attend any of these meetings.  In their discretion, Medical Staff Leaders may permit a Practitioner to invite another Practitioner to the meeting.  In such case, the invited Practitioner may not participate in the discussion or in any way serve as an advocate for the Practitioner under review, must sign a Confidentiality Agreement, and may be required to leave the meeting at any time.

Of course, the physician may consult an attorney prior to the meeting (and the physician shouldn’t be discouraged from doing so).  The attorney could even accompany the physician to the hospital and wait in an appropriate location – outside of the meeting – if the physician insists.  But there’s no obligation to allow the attorney to accompany the physician during the meeting.

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

May 8, 2025

Posted on by Courtney Patterson

QUESTION:
What are some ADA-specific considerations for allowing patients to bring service animals to the hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under the American with Disabilities Act (“ADA”), patients who require the services of a service animal are generally permitted to bring their service animal with them to a hospital.  However, the ADA protections granted to service animals do not apply to emotional support animals; therefore, hospitals may prohibit patients from bringing emotional support animals to the hospital.  Hospitals may impose rules and restrictions for managing service animals in their facilities.

Title III of the ADA requires hospitals and other places of public accommodation to modify policies, practices, and procedures to permit individuals with a disability to use a service animal.  Service animals must be under the handler’s control.  The ADA regulations require handlers control their service animals with a harness, leash, or other tether, unless the handler is unable to use said harness leash or tether because of a disability or said harness, leash, or tether would interfere with the service animal’s safe and effective performance of work or tasks.  The hospital may request that the service animal be removed if (1) the animal is out of control and the animal’s handler does not take effective action to control it, or (2) the animal is not housebroken.

Under the ADA, a “service animal” means any dog that is individually trained to do work or perform tasks for the benefits of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.  The “works performed” by a service animal must be directly related the individual’s disability.  For example, a dog who assists an individual who is blind or has low vision by navigating the person throughout a facility, or a dog who helps a person with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors performs works or tasks that meet the service animal requirement.

Importantly, other species of animals are not considered service animals (however, the ADA does require accommodations for people who use miniature horses similarly to service animals in specific circumstances).  Additionally, an animal’s presence or the provision of emotional support, well-being, comfort, or companionship does not constitute works or tasks for the purposes of identifying an animal as a “service animal.” Why? According to the Department of Justice, the difference between a service animal and an emotional support animal is determined by the work or task that the animal performs.  A service animal, unlike an emotional support animal, is trained to respond to an individual’s need.  For example, if a service animal senses a person is about to have a psychiatric episode and it is trained to respond by nudging, barking, or moving the individual to a safe location until an episode subsides, the animal “performs a task” or has “done work” on behalf of the individual with a disability rather than simply sensing that an event has occurred.  Thus, an emotional support animal, which typically is not trained to recognize and respond to an episode, but rather comforts or provides companionship as a result of a person’s episode, does not perform works or tasks and is therefore excluded from the “service animal” definition.

If it is unclear whether someone’s dog is a service animal, a place of public accommodation may only ask two questions pertaining the service animal:  (1) Is the service animal required because of a disability? (2) What work or task has the dog been trained to perform?  Under the ADA, it is unlawful to (1) ask about the nature and extent of the person’s disability, (2) request any documentation that the service animal is registered, licensed, or certified as a service animal, or (3) ask the handler to pay a surcharge where a surcharge would otherwise be appropriate.  The U.S. Department of Justice Civil Rights Division has no shortage of information, including its Service Animals ADA Requirements:  Service Animals, and Frequently Asked Questions about Service Animals and the ADA webpages.

If you have a quick question about this, e-mail Moises A. Tonoc Bonilla at mtonocbonilla@hortyspringer.com.

May 1, 2025

Posted on by Courtney Patterson

QUESTION:
Should we be using specialty-specific triggers as a part of our professional practice evaluation/peer review process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes.  Specialty-specific triggers give a measure of predictability and transparency to the professional practice evaluation/peer review process (“peer review process”).  These triggers are pre-determined events, organized by specialty or department, that identify a case for review through your peer review process.  Moreover, accreditation entities require the inclusion of these triggers as a part of the review process.  By way of example, The Joint Commission, in MS.08.01.01, instructs that the Medical Staff must “define the circumstances requiring monitoring and evaluation of a physician’s or other licensed practitioner’s professional performance” and requires that “[t]he triggers that indicate the need for performance monitoring are clearly defined.”  The DNV standards have similar language and define, in MS.8, “areas required to be measured [as a part of the peer review process],” including “[s]pecific department indicators that have been defined by the medical staff.”  The triggers should be communicated to members of the specialty or department so that they understand that if a certain event occurs, it is ripe for review, and they will most likely be notified about the case.

Often, the department chairs take the lead in identifying the specialty-specific triggers and the peer review committee is responsible for approving and periodically reviewing them.   For surgery, the triggers could include events such as an unplanned injury or removal of an organ, a retained foreign body, a wrong-site surgery, and a laceration or puncture of a body part.  For medicine, the triggers could include an unplanned transfer to a special care unit, an adverse outcome that is unrelated to the natural course of an illness, the death of a patient in a low mortality DRG, or a critical/abnormal lab result that is unaddressed or misinterpreted.

In addition to specialty-specific triggers, there are numerous other ways that clinical issues may be entered into the peer review process, including through reported concerns, patient complaints, referrals from the serious safety event process, OPPE data that reflects a concerning practice pattern or concern, and utilization issues.  These should also be defined in your peer review policy and will establish a broad net to catch issues for review.

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

April 24, 2025

Posted on by Courtney Patterson

QUESTION:
I was recently appointed as the chair of the Credentials Committee.  The first meeting took a long time, came off the rails sometimes and was extremely frustrating.  How can I make these meetings better?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Please don’t despair!  It takes a lot of hard work, so here are some tips that will help you run an efficient meeting, because running an efficient meeting is the key to making it an effective meeting.

Tip #1.  Start on time.  This is one of the most important tips.  If a meeting isn’t started on time, chances are it won’t end on time, and not ending on time has consequences!  Starting on time shows that the chair has expectations for his or her meeting.  If the chair is taking the meeting seriously, the participants will more than likely take it seriously, and not treat it as a weekly, monthly, etc., casual get together.

Also, if a meeting always starts on time, the participants will more than likely be there on time.  No one likes to walk into a meeting late.  But, if the meeting never starts on time, the participants will start thinking “Well, it’s 15 minutes past the start time, so it probably didn’t start, but if it did, I’m not going to be that late.”  Or, being late becomes a joke “I can’t believe you started already – it’s only 15 minutes past the start time!”

Also, being late to a meeting disrupts the meeting.  The participant who is late may not pick up on the discussion, or if the chair summarizes what has already been discussed for the late-comer, the chair may “lose” those who were there on time.

Finally, introduce visitors, or participants who are attending their first meeting and may not know everyone in the room.

Tip #2.  Encourage participation.  The chair should get every attendee involved.  Some attendees may not speak because they may be shy, or feel intimidated, but the chair should draw those attendees in to get multiple points of view.  The chair could use direct questions, such as “Didn’t you face this situation in your practice?  What was your experience?”

Tip #3.  Limit the conversation.  This doesn’t mean that the chair should not hear from everyone who wants to contribute their point of view.  The purpose of a meeting is to get different points of view, then make a decision.  What “limit the conversation” means is that if a couple of people in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?”  Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion.  This can be hard to do, because chairs don’t want to be seen as dictators, but it is a skill that needs to be developed.  Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #4.  Take an issue off-line.  There are times when a meeting is getting bogged down because no one has the information needed to make a decision.  For example, is the bylaws revision being discussed a Joint Commission Standard?  A Medicare Condition of Participation?  A best practice?  If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue.

Another reason to take an issue off the agenda is because there are so many conflicting points of view that won’t be able to be resolved at the meeting.  The chair knows that no matter how much more discussion there is, the issue won’t be resolved.  So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #5.  End on time.  I think this is the most important tip.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, the majority will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  The chair must remember that he or she is dealing with attendees who have volunteered their time to participate on this committee and be at this meeting, so respect their time.

Also, not ending on time affects meeting attendance.  If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

It’s just a fact that sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. – that happens.  But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting.  The exception is if the issue is of critical importance, but that will be few and far between.

Bonus Tips!

Post-meeting tasks.  The meeting attendees should have clear goals and assigned tasks after leaving the meeting.

Order.  How does a chair keep order at a meeting?  By strict adherence to Robert’s Rules of Order?  No!  We recommend that Robert’s Rules be looked to for guidance, but are not binding, and that the chair reserves the power to make all definitive procedural rulings.  Why?  Because if there is a parliamentarian on the committee, he or she can dominate the discussion just because he or she knows Robert’s Rule inside and out.  Also, it’s impractical to expect everyone on the committee to know all of the rules, and we don’t want to put them at a disadvantage during meetings.

That’s it for the tips.  Please remember these tips, because a poorly run meeting that starts late, wanders all over the place, and doesn’t end on time, creates a belief that spreads through the hospital that meetings are a waste of time.

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

April 17, 2025

Posted on by Courtney Patterson

QUESTION:
Does haiku need to be in a 5-7-5 syllable format?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:
Not necessarily.  According to the definitive 1999 Matsuyama Declaration from the International Haiku Convention:

“A common issue that always comes up in discussions of international haiku, is how to deal with the fixed form of 5-7-5 syllables and kigo in other languages and cultures.  First of all, the 5-7-5 rhythm is unique to the Japanese language, and even if other languages were to use this rhythm, it is obvious that it would not guarantee the same effect.  Teikei is not about the matter of syllable count or accent, but the matter of the way poetic expression could be heightened through tension when the writer wants it.  In the case of Japanese poetry, the best method to increase poetic tension was the 5-7-5 syllable form.”

“Therefore, when haiku spreads to the rest of the world, it is important to treat it as a short-formed poem and to take methods suitable to each language.  For a poem to be recognized worldwide as haiku, it must be short-formed and have an essential spirit of haiku.”

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