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.