December 22, 2016

Posted on December 22, 2016December 29, 2016 by hortyspringer

QUESTION: As we are preparing for a medical staff hearing, a member of our Medical Executive Committee asked why our Medical Staff Bylaws state that the Chief Executive Officer appoints the hearing panel and not the Chief of Staff since it’s the Chief of Staff who knows most of the members of the medical staff. We are trying to figure out whether this was a typo or not. Should the Chief of Staff appoint the panel?

ANSWER: No – that’s not a typo! While we do still sometimes see bylaws which assign the Chief of Staff the responsibility to appoint the hearing panel (and worse yet, occasionally it’s the whole Medical Executive Committee that does so), it’s long been our recommendation that the CEO or the CMO fulfill that responsibility – in consultation with the Chief of Staff.

This is because, generally speaking, the Chief of Staff, both in his/her role as a Medical Staff officer as well as a member of the MEC (the body that will most often be making the adverse recommendation that triggers a hearing) tends to be someone who is very intimately involved in the underlying matter that led to the hearing. The Chief of Staff will frequently be the individual who engaged in collegial intervention and other progressive steps with the affected physician, who was involved in the development of any conditions or restrictions and, ultimately, is involved in the adverse recommendation made by the MEC as the chair of that committee. When an involved Chief of Staff is then responsible for appointing the hearing panel and presiding officer, we have seen the argument made that the selections were biased in favor of the MEC and are not neutral – which can lead to objections and legal challenges (both before and after the hearing) to the appointment of the panel.

While we know that these claims are largely groundless, it is very important to manage the appearance of fairness at all steps of the hearing process. The goal is to isolate the volunteer physician leaders – like the Chief of Staff – from these types of claims and allegations as much as possible, which is why the CEO or CMO should appoint the panel after consulting with the Chief of Staff.

September 29, 2016

Posted on September 29, 2016September 29, 2016 by hortyspringer

QUESTION: Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver. Only if a waiver is granted by the Board is the individual’s application then processed. When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER: Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver). And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone. So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria. To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process. This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility). But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

July 14, 2016

Posted on July 14, 2016July 14, 2016 by hortyspringer

QUESTION: We have several ambulatory surgery centers (“ASCs”) in our System. We recently looked at the bylaws of the ASCs and they are quite antiquated. Even more of a concern, we learned that the credentialing process in the bylaws is not being followed at the ASCs. We need to work with the ASCs to change their bylaws, but where do we start? The medical staff bylaws (and credentials policy) for the hospitals in our System are now all very similar. Can we incorporate the ASCs into the medical staff bylaws?

ANSWER: You asked if the ASCs could be incorporated into the medical staff bylaws of the hospitals in your System. This approach has the appeal of simplicity. However, given the vast differences in the size, structure, and organization of the medical staffs at the ASCs and the medical staffs at the hospitals, this option seems awkward at best. There might also be some regulatory issues with this approach. Specifically, the ASCs are required to have their own medical staffs in some states. Thus, in order for the medical staffs of the ASCs to function as a part of the medical staffs of the System hospitals, it could be necessary to seek an exception from the Department of Health.

Another option would be to take the medical staff documents that were prepared for the System hospitals’ medical staffs and use them as a starting point for the creation of governance documents for the ASCs. We recommend this approach for several reasons. First, this approach would provide an opportunity to update the ASC bylaws to reflect current practices. Second, this approach would help ensure that the ASC bylaws are well-drafted and in compliance with controlling law. Third, while the hospital medical staff documents would have to be substantially pared down and streamlined for use by the ASCs, these documents would include key provisions, such as a System Credentials Committee, a Professional Affairs Committee to resolve disputes among the Medical Executive Committees, and language to ensure that decisions at one System facility are applicable at all System facilities, which would facilitate uniformity within the System.

February 18, 2016

Posted on February 18, 2016February 22, 2016 by hortyspringer

QUESTION: A registrant at our recent Complete Course for Medical Staff Leaders in Naples asked: Can you change the bylaws AFTER someone’s already credentialed, even if it might make that physician ineligible at recredentialing (e.g., thresholds)? If ineligible, is that reportable to the NPDB?

ANSWER: Yes and No. An organization can decide to revise its eligibility criteria; it may choose to “grandfather” current staff members (upheld by several courts in cases involving board certification, when potential applicants alleged disparate treatment). However, grandfathering is not required. An organization can decide to apply the new criteria uniformly. It is fair to provide advance notice and an opportunity for those affected to be heard (and to become eligible, if possible).

Leaders should carefully assess the need to apply the standard to current members and to articulate the quality rationale. A determination of ineligibility is not an adverse professional review action and is not reportable to the National Practitioner Data Bank.

May 21, 2015

Posted on May 21, 2015 by hortyspringer

QUESTION: We are currently in the process of revising our Medical Staff Bylaws and have been trying to pin down the requirements for the history and physical (“H&P”) provisions in the Bylaws. As a starting point, could you let us know what details are required by federal law and regulations and accreditation standards?

ANSWER: The Medicare Conditions of Participation for hospitals (“CoPs”) have several requirements for what must be included in the Medical Staff Bylaws when it comes to H&Ps. The CoPs require that the Bylaws include a requirement that a physician, oromaxillofacial surgeon, or “other qualified licensed individual in accordance with State law and hospital policy” complete an H&P no more than 30 days before or 24 hours after admission or registration, but at all times prior to surgery or a procedure requiring anesthesia services. When the H&P is conducted within 30 days before admission or registration, an update (which notes any changes in the patient’s condition) has to be completed and documented by a licensed practitioner, who holds privileges at the hospital to perform an H&P, within 24 hours after admission or registration but always before surgery or a procedure requiring anesthesia.

The CoPs do not address content-related requirements of H&Ps, other than noting in the Interpretive Guidelines that “[t]he purpose of a medical history and physical examination…is to determine whether there is anything in the patient’s overall condition that would affect the planned course of the patient’s treatment, such as a medication allergy, or a new or existing co?morbid condition that requires additional interventions to reduce risk to the patient.”

The Joint Commission Accreditation Standards reiterate the timing requirements for H&Ps and are, similar to the CoPs, not overly prescriptive when it comes to content-related details. In a recent FAQ posted on its website on March 5, 2015, the Joint Commission noted, generally, that “[o]rganizations have the flexibility of determining the content of the H&P based on the population served and the services provided.” Some additional guidance is contained in the glossary of the hospital Standards, which provide a definition for an H&P. That definition indicates that the history portion “may include information about previous illness, previous medical or surgical interventions and response to treatment, family health history, and social, cultural, economic, and lifestyle issues that may affect an individual’s health and well-being” (emphasis added). The physical portion “involves the physical examination of the individual’s body by the following means: inspection, palpation, percussion, and auscultation….”

Under the CoPs and Joint Commission Accreditation Standards, there is no requirement that the content-related details of H&Ps be included in the Bylaws. Thus, these content-related details may be included in other medical staff documents, such as the Medical Staff Rules and Regulations (however, we recommend including all the details for H&Ps in the Bylaws for ease of reference).

Occasionally, state law and regulations will contain H&P requirements that are different, and at times more restrictive, than the CoPs and the Joint Commission’s Standards. The same applies for commercial insurer billing requirements. Commercial insurers will often dictate what needs to be included in the H&P (e.g., age, height, vital signs, past medical and behavioral history, family history, physical examination, medical impression, etc.) for reimbursement purposes. Accordingly, state law and regulations, as well as any commercial insurer (with which your hospital contracts) requirements, must be consulted when deciding on what will be included in the H&P sections of your Medical Staff documents.