January 7, 2021

Posted on January 7, 2021 by hortyspringer

QUESTION: We recently had an applicant disclose that she was convicted for embezzling funds from an employer twelve years ago and served five months in a minimum security prison as part of her penalty. Because the conviction occurred prior to the individual beginning medical residency training, it did not render her ineligible for consideration under our threshold eligibility criteria, which state (as relevant):

Since the start of medical or professional training, the individual must have not been convicted of, or entered a plea of guilty or no contest to, any felony or to any misdemeanor related to controlled substances, illegal drugs, violent acts, sexual misconduct, moral turpitude, domestic, child or elder abuse, or Medicare, Medicaid, or other federal or state governmental or private third-party payer fraud or program abuse, nor have been required to pay a civil money penalty for any such fraud or program abuse;

We processed the application, after getting substantial information from the applicant about the conviction and the steps she had taken to reform her conduct to ensure no reoccurrence. But, this situation got us wondering whether we should make our threshold criteria more stringent. Wouldn’t it be better to exclude, as a matter of course, all individuals with a felony background and then individually, on a case-by-case basis determine whether to make an exception and let them apply? Though I think we ultimately reached a good outcome with this applicant, I’d be lying if I said that the prospect of denying the application and having to hold a hearing wasn’t on our minds.

ANSWER: Processing applications from those with interesting backgrounds is the most difficult task that credentialers face. When an applicant has something very concerning in their background, it often falls within the “eligibility criteria” set forth in the organization’s Medical Staff Bylaws – and renders the individual completely ineligible to have the application subjectively considered. That’s easy! When the applicant, like 99% (or more) of the applicants has nothing but good things in their background, subjective consideration requires very little scrutiny. That’s easy! But, the gray areas in between: That’s hard. And that’s where you found yourself with your applicant – a felon with a notable conviction and some prison time, but whose crime occurred a number of years ago, prior to medical training.

If the culture of your organization is such that, in virtually all cases (90% +), you would not want to even consider granting Medical Staff membership (or privileges) to an individual who has a certain characteristic – and that characteristic is reasonably related to the practice of medicine or the fulfillment of the responsibilities of Medical Staff membership – you should consider adding the characteristic to your threshold criteria. With respect to criminal background, some organizations feel differently than others with respect to how the threshold criteria should be defined. Some wish to include all felonies, no matter when they occurred and no matter whether they are certain types of crimes. The thought in such organizations is that a felony is serious enough to call into question the individual’s judgment and reputation, no matter the other circumstances. Other organizations, like yours, define the threshold criteria more narrowly, perhaps limiting those relevant to crimes to felonies that occurred within the past 5 or 10 years, or to felonies that relate to the practice of medicine (e.g. those related to violence, treatment of vulnerable people, fraud, insurance, etc.). There are many, many variations out there. If your organization feels that the existing language of the Medical Staff Bylaws (or Credentials Policy) is too narrow – and lets through too many applicants who should not be receiving consideration – then it’s time to open a dialogue on the matter and consider revisions. Threshold criteria are not static! They should be modified as necessary to achieve the goals of the organization. Further, one of the reasons for a separate Credentials Policy, if you use it, is to allow the detailed credentialing criteria to be more easily modified to reflect the organization’s changing culture and goals.

Note, however, that threshold criteria are not meant to be used to prevent credentialers from using their judgment and expertise to carefully weigh the credentials of applicants who come with some background. If the culture of your organization is that you would sometimes consider granting Medical Staff membership and/or privileges to an individual who has a certain characteristic, such as a felony conviction, but it depends on the type of conviction, how long ago the conviction occurred, the mitigating steps taken by the applicant to address the matter, the applicant’s assumption of responsibility, finite steps taken by the applicant to prevent recurrence, etc., then your threshold criteria may be just right. In other words – you need not use the threshold criteria to screen out, as “ineligible,” those individuals who you would sometimes (often) consider for appointment or privileges. Rather, you can use the standard credentialing process to weigh such individuals’ qualifications and make a subjective decision. The credentialing process, which usually includes several layers of consideration is uniquely designed to promote careful consideration of each application – particularly in cases where something notable is found in the applicant’s background.

Of course, the standard credentialing process does come with the prospect of a “denial,” with the attendant costs of hearing and appeal rights. So, why not adopt threshold criteria that are more stringent than you would sometimes like to enforce and then grant case-by-case exceptions? The reason is that each failure to enforce the threshold eligibility criteria undermines the eligibility process generally. The whole point of having objective eligibility criteria is to define objective factors that are less susceptible to biased implementation (do to them being objective and, in turn, easily discernible through reference to external sources). Because bias is so limited in such situations, and subjective consideration is not required, eligibility determinations do not constitute judgments about an individual’s competence or conduct and, therefore, do not constitute “adverse professional review actions.” It is adverse professional review actions that give rise to due process rights.

While we do generally recommend including in the Bylaws/Credentials Policy a process for granting waivers to those who fail to satisfy threshold criteria, we also recommend that the process be utilized only when exceptional circumstances exist – circumstances that are so significant they rule out the concern raised by the threshold criterion at issue (for example, a foreign-trained physician convicted of a crime equivalent to a felony in his home country, during a time of political upheaval and related to political activism would be a good choice for waiver, because the type of criminal conviction at issue does not raise concerns about reputation or judgment, in the way that most other criminal convictions would).

Importantly, however, if the waiver process is intended to be used – or is actually used – to grant waivers more routinely (for example, you find that 27% of reappointment applicants are being granted waivers of board recertification/MOC requirements after requesting waivers on the basis that they didn’t have time to get around to MOC), then the criterion is probably overly broad and should be modified until the organization is comfortable applying the criterion almost uniformly. That eliminates as much subjectivity as possible/practicable, lending credence to the eligibility process generally.

December 3, 2020

Posted on December 3, 2020December 3, 2020 by hortyspringer

QUESTION: We have an applicant for medical staff appointment who disclosed that he was under probation for a time during his residency. Despite our requests, he has refused to provide any additional information related to this matter. He also has declined to sign an authorization that would allow us to talk freely with his program director.

We have language in our Medical Staff Credentials Policy stating that the burden is on the applicant to provide any information requested, or his or her application will be held as incomplete. Is this a situation where we can rely on this provision?

“provid[e] all information deemed necessary by the hospital…as a condition precedent to the hospital’s obligation to process the application.”

Similarly, an appeals court in Tennessee ruled in favor of the hospital in a case where a physician up for reappointment refused to release information on pending malpractice claims. In that case, the court found that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

Of course, having good language in your Medical Staff documents (and on your application form) that makes it clear that the burden to provide information is on the applicant – and that an incomplete application will not be processed – is key. Since you stated that you have this language in place, you can feel confident in holding this application as incomplete until the applicant meets his burden of providing the information you need.

November 19, 2020

Posted on November 19, 2020November 20, 2020 by hortyspringer

QUESTION: We have an applicant for medical staff appointment who is over 80 years old. Are there certain things we can require during the credentialing process before he gets on staff?

ANSWER: Let’s start with Henry’s favorite answer: “It depends,” because it always does.

We recommend that Hospital Medical Staffs try to comply with the Americans With Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) in the credentialing and recredentialing processes. Whether the ADA and ADEA, which are both employment-based statutes, apply to the appointment process is still an open question. But there are a number of cases, in reviewing these and other civil rights statutes, that have concluded there should be broad application of these laws and have applied them to the credentialing and recredentialing processes.

Furthermore, more and more physicians are employed, and these statutes will apply to your employed physicians. It makes no sense to have two sets of rules in your credentialing process, one for employed physicians and one for private practice physicians (especially if the standard for private practice physicians is higher). Therefore, we recommend that hospitals get as close as possible to compliance with the ADA and the ADEA, including in their appointment and reappointment processes.

Under the ADA, an employer is prohibited from requiring a health examination or making health-related inquiries until after a conditional offer of employment. In the medical staff world, this means there can be no required physical examination and no health status questions until after the Credentials Committee has determined that an applicant is otherwise qualified to practice.

After the conditional offer, the employer is permitted to ask any health status questions and/or require a fitness for practice evaluation so long as it asks the same questions and requires the same evaluation for similarly situated applicants. In the medical staff world, this means that after the Credentials Committee has made a conditional recommendation for appointment, a physical examination could be required and health status questions could be asked as long as this is the practice for all applicants.

If you do not typically ask health status questions or require a physical exam, you cannot do so just for the 80-year-old applicant.

There is an exception to this rule if a concern about a potential impairment is brought to your attention. So, for example, if a peer reference raised a concern about the applicant’s cognitive impairment or eyesight or hearing or technical skills in the OR, you could follow-up. The same would be true if during the interview the applicant was unsteady on his feet or confused. Under these circumstances you would be permitted to follow-up on the health concerns and you could require a fitness for practice evaluation.

The ADEA would also prohibit you from making an appointment (or reappointment) decision based solely on the physician’s age. The days of “congratulations on turning 75, you’ve been elevated to the Honorary Staff” are gone – as they should be. It is worth pointing out that the requirement that a physician get a physical or cognitive exam based on the physician’s age (as some Late Career Practitioner Policies do) is being challenged by the EEOC. See EEOC v. Yale New Haven Hospital. https://www.eeoc.gov/newsroom/eeoc-sues-yale-new-haven-hospital-age-and-disability-discrimination. The challenge is based on both the ADEA and the ADA.

March 12, 2020

Posted on March 12, 2020 by hortyspringer

QUESTION: We had an applicant who “forgot” to disclose two hospitals where she practiced in the past when she completed her application form. We found out about one of them through a National Practitioner Data Bank query and the other when we directed her to correct her application form. She was very apologetic and said it was an accident because her office manager completed the form. What do we do with this now that we feel like she wasn’t honest? It seems unlikely that she “forgot” an affiliation where they restricted her privileges.

ANSWER: Misstatements and omissions on application forms can certainly be very serious and the concerns that your medical staff leaders have are justified. The act of completing a medical staff application form is a practitioner’s very first administrative contact with the hospital. As an administrative function, we recommend having an administrative response when this type of discrepancy is discovered. That response should not be an invitation to “correct” the application form, because through the use of such language, it implies to the practitioner that there are no concerns raised by their initial completion of the form or that those concerns are fully resolved by their “correcting” the erroneous information.

Rather, we recommend having medical staff bylaws/credentials policy language that clearly states that the hospital will stop processing an application if a misstatement or omission is discovered – and if it is not discovered until after appointment has been granted, that appointment will be automatically relinquished. The applicant should be notified of the misstatement or omission and given an opportunity to respond, and then there should be an administrative-level review of that response to determine whether or not to move forward. The same language should be on the application form release that the individual signs upon completing the application form. Addressing this issue on an administrative level means avoiding words like “rejection” or “termination” of the application or “denying” the application – which is an action that is only ever taken following a comprehensive review of the application and all supporting materials in its entirety.

May 16, 2019

Posted on May 16, 2019 by hortyspringer

QUESTION: A registrant at our recent Complete Course for Medical Staff Leaders in New Orleans in April asked: Can we call a past Department Chief, as you did in the case study, without the applicant’s specific consent?

ANSWER: Yes, you can and should! Your Bylaws or Credentials Policy, and application forms, should contain an authorization, as a condition to consideration of the application, to obtain full information about an applicant’s qualifications, including education, training, practice experience, current competence, and professionalism from all educational institutions and organizations where the candidate has practiced. You should contact department chiefs at hospitals where an applicant has most recently practiced. The applicant may not have listed recent past department chief(s) as references, but you are not limited to contacting those listed as references by the applicant. Those providing information should be released by the applicant to the fullest extent permitted by law.

September 13, 2018

Posted on September 13, 2018September 13, 2018 by hortyspringer

QUESTION: We are reviewing an application from a new applicant who has excellent credentials with respect to his education, training, experience and current clinical competence. However, the applicant has had trouble working with others and was even subject to a behavioral performance improvement plan at his last hospital. The Credentials Committee is split over how important behavior really is when a candidate otherwise has excellent credentials. How should we proceed?

ANSWER: This is a question we hear often. You finally find a physician who has excellent credentials, but acts out a little. While everyone has a “bad hair day” once in a while, it is a mistake to bring someone into your organization whose behavior will undermine your culture of safety.

This is the terminology used by The Joint Commission when it issued its 2008 Sentinel Event Alert. According to the Sentinel Event Alert:

“Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and managers to seek new positions….All intimidating and disruptive behaviors are unprofessional and should not be tolerated.”

The Sentinel Event Alert was followed by the adoption of a leadership standard that required hospitals to adopt a code of conduct or professionalism policy.

Recognizing the importance of working professionally and respectfully with others, most credentials policies require applicants to demonstrate an “ability to work harmoniously with others, including interpersonal and communication skills sufficient to enable them to maintain professional relationships with patients, families, and other members of health care teams.” The bottom line is that behavior matters in the quality of care you provide in your hospital.

So in credentialing the applicant, get as much information from previous hospitals and past employers about his or her ability to work with others. Ask for a copy of the behavioral performance improvement plan. Ask for a copy of the underlying concerns that led to the adoption of the performance improvement plan. Request a copy of any correspondence that relates to behavioral concerns. And don’t forget to make follow-up phone calls to references and to others who may have worked with the applicant in the past to get a candid evaluation of any problems.

A physician who experienced a problem period because of personal issues, but then improved should not be problematic. A physician with a longstanding pattern of inappropriate and unprofessional behavior is not likely to change when he or she lands at your hospital. Don’t forget the middle option of conditional appointment which can also be useful in laying out expectations and consequences should the inappropriate behavior reoccur.

Please join us in our national program – Credentialing for Excellence – where we discuss this and other credentialing challenges.

March 23, 2017

Posted on March 23, 2017March 23, 2017 by hortyspringer

ANSWER: Most definitely. When it comes to enforcing such a provision, the law is on your side. Courts from jurisdictions across the country have held that a hospital can refuse to process an application that is incomplete. For example, an Illinois appeals court, in a case with facts very similar to the situation described above, held that an applicant must “provid[e] all information deemed necessary by the hospital…as a condition precedent to the hospital’s obligation to process the application.” Similarly, an appeals court in Tennessee ruled in favor of the hospital in a case where a physician up for reappointment refused to release information on pending malpractice claims. In that case, the court found that that application for medical staff membership clearly required the physician to assist in providing the information necessary to determine his qualifications.

July 21, 2016

Posted on July 21, 2016July 21, 2016 by hortyspringer

QUESTION: We have an applicant for appointment and clinical privileges who seems to have an unusual number of malpractice cases in his history. Do we need to do anything with this information if everything else about the applicant checks out?

ANSWER: Every application for appointment and reappointment asks applicants about their malpractice history. But many hospitals don’t know what to do with the information they receive. The Joint Commission requires hospitals to consider “any evidence of an unusual pattern or an excessive number of professional liability actions resulting in a final judgment against the applicant” in granting privileges. But what is “an unusual pattern or an excessive number”?

A physician’s malpractice history cannot be ignored. Unfortunately, there is no hard and fast rule on what constitutes reasonable due diligence when it comes to reviewing these types of disclosures. The key is to know what to look for:

Not all malpractice claims are created equal, so information should be obtained to understand the nature of the claims.

The number of claims may not tell the whole story, but patterns or trends do.

Don’t compare apples to oranges – know which states and which specialties are more “at risk” for malpractice claims.

There is a big difference between malpractice claims and malpractice verdicts.

To learn more about how to consider an applicant’s malpractice claims history, as well as other hot topics in the world of credentialing, please join LeeAnne Mitchell and Ian Donaldson this fall at The Credentialing Clinic in Las Vegas, Nevada.