clinical privileges

September 5, 2024

Posted on by Courtney Patterson

QUESTION:
An applicant’s background check revealed a recent misdemeanor arrest that the applicant failed to disclose on their application. Are we allowed to ask the applicant questions about the arrest even though the background check indicated that the case has not yet been resolved?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
Absolutely!

It is the hospital’s responsibility, through the credentialing and privileging process, to appoint only highly qualified providers.  To do so, the burden should be on the applicant to demonstrate current clinical competence and an ability to practice safely.  Therefore, it is important to keep the burden on the applicant to resolve any doubts related to their qualifications.  This includes answering additional questions and resolving any doubts that may come up in the course of reviewing their application.  An application that has red flags or outstanding questions should not be processed further until the underlying issues are resolved to the satisfaction of the hospital.

An arrest, for instance, is something that would certainly require follow-up.  Specifically, when was the arrest? Why was the applicant arrested? Were any charges brought against the applicant? Why did the applicant leave this information out of their application? These are questions for the applicant to resolve prior to the hospital processing the application further.

It does not matter if the applicant’s criminal case has not yet been resolved.  The hospital has the ability to ask those questions it feels need to be answered, and for documentation to support those answers, in order to properly resolve any questions about the applicant, and in this case their arrest.

July 25, 2024

Posted on by jwilbert

QUESTION:
We are confused about whether an applicant for Medical Staff appointment and clinical privileges is entitled to a hearing because of his failure to disclose certain unfavorable information and our decision to not process his application.  The physician claims that he is entitled to a hearing.  How should we handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK
While it is always important to consult requirements under state law, which may address situations when a hearing is required, your Medical Staff Bylaws or Credentials Policy (“Bylaws”) should clearly define the consequences for certain events and the circumstances that give rise to a hearing.  For example, if the physician failed to disclose an “accusation” filed against him by the state licensing board and such information is requested on the application, the Bylaws should spell out the results of failing to disclose such information requested on the application.  Specifically, the Bylaws should state that any misstatement in, or omission from, the application is grounds to stop processing the application. A decision not to process an application for these reasons should not entitle the applicant to a hearing or appeal (and this should be clear in your Bylaws).

With that in mind, it also makes sense to review your application forms to confirm that the application questions are seeking information that you need to make an informed decision about someone’s qualifications.  For example, your application should not only seek information on past actions by licensing boards, it also should ask for information on pending actions.  Confirm that the questions on the application form are consistent with provisions in the Bylaws with respect to the threshold eligibility criteria that someone must satisfy for eligibility for appointment.  If one of your threshold eligibility criteria requires an applicant to “have a current, unrestricted license to practice that has never been subject to any restrictions, conditions, or probationary terms and have never had a license to practice in any jurisdiction denied, revoked, restricted or suspended by a state licensing agency,” then there should be a corresponding question on the application seeking this information.

Finally, your Bylaws should place an obligation on members to notify the Medical Staff Office of any change in information provided as a part of the application and state that a failure to do so may result in administrative relinquishment of appointment and clinical privileges.  This permits the Medical Staff and Hospital to evaluate any changes in an individual’s qualifications, weigh those changes against eligibility criteria, and assess the appropriateness of any applicable consequences under the Bylaws.  Unless state law requires it, an automatic relinquishment of appointment and clinical privileges because of failure to continuously satisfy threshold eligibility criteria does not give rise to a Medical Staff hearing.

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

March 21, 2024

Posted on by Courtney Patterson

QUESTION:
We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital.  We think that information is relevant to her request for appointment at our hospital because it involves actions on appointment and privileges.  Can we still ask for the information?  Should we ask for a letter from her lawyer?  Should the application be held incomplete?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Yes! Credentialers have a legal duty to review all relevant information that has any bearing on the qualifications of an applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty.  Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, character, ethics, and other qualifications and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had made an application.  The physician argued that he received legal advice that signing the release could compromise his lawsuit against the hospital, which had revoked his privileges.  The court held that because the physician had not provided the additional information that the hospital requested – regardless of the fact that a settlement agreement was in place – he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

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

January 5, 2023

Posted on by Courtney Patterson

QUESTION:
There is a lot of confusion amongst members of our Medical Staff about the relationship between Medical Staff appointment and clinical privileges.  For example, it is common to hear individuals refer to “Active Staff Privileges.” How can we help educate our Medical Staff on the difference between Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Many people confuse or intertwine these two concepts, even though they are separate and distinct.  As such, it is important that your bylaws recognize appointment and clinical privileges as distinct concepts.

Appointment relates to an individual’s membership on the Medical Staff (i.e., that they are recognized as being “on the team”).  With this membership comes certain rights and responsibilities, like voting, serving on committees, etc.

Clinical privileges relate solely to the patient care services an individual has been authorized to provide at the hospital.  They do not relate to an individual’s involvement in Medical Staff affairs and, in turn, are not tied to the individual’s staff category.  In fact, an individual may be a member of the Medical Staff but have no privileges (e.g., “Community Staff”) or could have clinical privileges but no membership on the Medical Staff (e.g., telemedicine providers).

Ensuring your Medical Staff Bylaws documents make this distinction will hopefully help to educate your Medical Staff on this issue.

December 2, 2021

Posted on by Courtney Patterson

QUESTION:
Who should be on our Credentials Committee and what should be the terms of service for the members?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
A Credentials Committee is best composed of experienced leaders, such as past chiefs of staff or other physicians who have had medical staff leadership experience.  Many medical staffs have representation from a variety of specialties to ensure that the Credentials Committee has the expertise necessary to address difficult credentialing and privileging issues.  With the increasing number of advanced practice providers (e.g., nurse practitioners and physician assistants) providing services in hospitals, more and more Medical Staffs are appointing an advanced practice provider to the Credentials Committee as a voting member and for that individual’s input and expertise on the topic of credentialing and privileging these providers.

Service on the Credentials Committee should be the primary medical staff obligation of the members and terms should be at least three years so that committee members have an opportunity to gain some experience and expertise in credentialing.  The terms should also be staggered so that there is always a repository of expertise on the committee.  The Credentials Committee’s primary responsibility is to review and make recommendations on applications for medical staff appointment and clinical privileges.  It can also oversee the development of threshold eligibility criteria for clinical privileges.

For answers to all your credentialing questions, join Lauren Massucci and Charlie Chulack for the Horty, Springer & Mattern seminar “Credentialing for Excellence” on March 10 through 12, 2022 in Savannah, Georgia, or April 7 through 9, 2022 in New Orleans.

July 8, 2021

Posted on by Courtney Patterson

QUESTION:
“We have an applicant who is refusing to answer one of the questions on our application form because she says that her lawyer told her it could violate a settlement agreement that she has with another hospital.  We think that information is relevant to her request for appointment at our hospital.  Can we still ask for the information?  Should we ask for a letter from her lawyer?  Should the application be held incomplete?”

ANSWER:
Yes!  Credentialers have a duty to review all of the relevant qualifications of each applicant for Medical Staff appointment and clinical privileges and cannot allow the legal interests of an applicant, in an unrelated matter, to interfere with that duty.  Accordingly, the Medical Staff Bylaws (or related policies) should state very clearly that every applicant bears the burden of submitting a complete application and of producing information deemed adequate by the hospital for a proper evaluation of current competence, professional conduct, character, ethics, and other qualifications – and for resolving any doubts.

A similar issue arose in a 1997 case, Eyring v. East Tennessee Baptist Hospital, 950 S.W.2d 354 (Tenn. Ct. App. 1997), in which a physician applicant refused to sign a release form authorizing a hospital where he had previously practiced to send information to another hospital where he had submitted an application.  The physician argued that he received legal advice that signing the release could compromise his lawsuit against the other hospital, which had revoked his privileges.  The court held that because the physician had not provided the additional information that the hospital requested – regardless of the fact that a settlement agreement was in place – he had not submitted a complete application and, thus, under its Bylaws, the hospital was not required to process his application further.

February 4, 2021

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws contain a provision stating that Medical Staff members automatically relinquish their appointment and clinical privileges if they lose their license or fail to meet other threshold eligibility criteria.  Do we have to report such automatic relinquishments to the National Practitioner Data Bank (“NPDB”)?

 

ANSWER:          You do not.  By way of background, we generally recommend that Medical Staff Bylaws documents identify certain events that will lead to the automatic relinquishment of appointment and clinical privileges.  This includes, among other things, failure to meet any threshold eligibility criteria that are required for appointment and clinical privileges.  When a member’s appointment and privileges are automatically relinquished pursuant to such a provision, the action is considered to be “administrative” in nature.  That means there is no “professional review action” as defined by the Health Care Quality Improvement Act, so there is no need for a report to the NPDB.  The latest edition of the NPDB Guidebook includes the following question and answer that addresses this specific situation (See page E-47):

Question:  A hospital automatically revoked a physician’s clinical privileges when the physician lost her license.  Should this action be reported?

Answer:  No. Administrative actions that do not involve a professional review action are not reportable to the NPDB. The revocation of clinical privileges is automatic because the practitioner no longer holds a license.  Regardless of the reason for the State medical board’s licensure action, the hospital’s revocation of privileges was not the result of a professional review action.  Therefore, the hospital’s action should not be reported to the NPDB.

March 19, 2020

Posted on by hortyspringer

QUESTION:          As we ramp up our response to COVID-19, we are concerned that we may not be able to process routine applications for reappointment in a timely fashion.  Do we have any leeway?

ANSWER:            The Joint Commission recently published an FAQ on this issue.   According to the FAQ, if an established member’s clinical privileges are going to expire during the national emergency, The Joint Commission will allow an automatic extension so long as the following conditions are met.

First, a national emergency must have officially been declared.  As we know, this happened by proclamation dated March 13, 2020.  Second, your organization must have activated its emergency management plan.  This activation should be documented.

Finally, state law must not prohibit extending the duration of privileges during an emergency.  Most states are issuing broad emergency orders allowing for flexibility in the health care arena to respond to COVID-19.  We do not expect this last factor to serve as a prohibition.

According to The Joint Commission, the duration of the extension cannot exceed 60 days after the state of emergency has ended and the organization should “determine[] how the extension will be documented.”  We have included a sample resolution below that addresses both extending the term of reappointment and the grant of disaster privileges.

BOARD RESOLUTION

PRACTITIONER CREDENTIALING DURING THE COURSE

OF THE COVID-19 NATIONAL EMERGENCY

WHEREAS, the COVID-19 national emergency has caused widespread closure and/or personnel strain at health care facilities, universities, and government agencies, and has resulted in the cancellation of many activities underlying practitioner credentialing (e.g. board certification examinations, basic life support, and other certifications) and disruption of the Hospital’s ability to obtain primary source verification of certain practitioner credentials during the course of processing applications for initial appointment to the Medical Staff and Advanced Practice Clinician Staff (“appointment”), for the grant of clinical privileges, and for the processing of applications for reappointment to the Medical Staff and Advanced Practice Clinician Staff (“reappointment”);

WHEREAS, the COVID-19 national emergency may create a need for the Hospital to grant clinical privileges to practitioners whose credentials are not in accordance with those required in non-emergency periods, as outlined in the Medical Staff Bylaws, Medical Staff Credentials Policy, and related policies, procedures, and privilege delineation forms;

NOW, THEREFORE, BE IT RESOLVED THAT the Board has determined that immediate, temporary credentialing methods are necessary to ensure that the Hospital can continue to meet the needs of the community during the course of the COVID-19 national emergency.  As such, the credentialing methods set forth in this resolution are hereby authorized for individuals seeking appointment, reappointment, and clinical privileges, for the duration of the COVID-19 national emergency and for the immediate time period thereafter up to 60-days following the conclusion of the COVID-19 national and/or local emergency declarations)

BE IT FURTHER RESOLVED THAT during the course of the COVID-19 national emergency, the procedures for disaster privileging may be followed to grant clinical privileges to those specifically responding to the COVID-19 national emergency, as well as to applicants for initial appointment or initial clinical privileges, or applications for additional privileges from practitioners already practicing at the Hospital, insomuch as the credentialing of such individuals is disrupted by the COVID-19 national emergency.

BE IT FURTHER RESOLVED THAT during the course of the COVID-19 national emergency, the Chief of Staff is authorized to extend the reappointment and clinical privileges of any practitioner who is currently appointed with privileges at the Hospital as of March 13, 2020 (the date the COVID-19 national emergency was declared).  Unless otherwise determined by the Chief Executive Officer, the extension of reappointment and clinical privileges will last until 60-days following the conclusion of the COVID-19 national emergency or until such time as the individual’s application for reappointment and renewal of clinical privileges can be processed, whichever occurs sooner.

ADOPTED by the Board, March _____ 2020.

                                                                              

Chairman, on behalf of the Board of Trustees

For more information on privileging during a national emergency or disaster, click here or here.

August 29, 2019

Posted on by hortyspringer

QUESTION:        Our Credentials Policy says that applicants for Medical Staff appointment and clinical privileges will be interviewed by the department chair, the Credentials Committee, the Medical Executive Committee, the Chief of Staff, the Chief Medical Officer or the Chief Executive Officer.  Is there really any benefit to performing an interview as a part of the credentialing process or should we just eliminate this language from our Policy?

 

ANSWER:            There certainly is some debate about the effectiveness of interviews in predicting future job performance.  However, much of the research indicates that unstructured job interviews are ineffective.  On the other hand, structured interviews are one of the most effective selection techniques.

In structured interviews, applicants are asked to respond to the same set of questions and their answers are rated on a standard scale.  Sounds complicated, right?  Not necessarily.  We understand that the development of a complex, standard scale for rating would involve the participation of experts; however, a common set of straightforward questions that are structured to elicit information about past behavior (as opposed to questions designed to elicit information about how an applicant would respond in a hypothetical situation) and that are relevant to Medical Staff appointment, measured against a simple rating scale, can be useful.  This task shouldn’t be outside of the Credentials Committee’s wheelhouse.

There is always the risk of variability among interviewers, but this could be minimized by having at least two individuals conducting the interview, using the same scale but rating separately, and then comparing notes after the interview to reduce variability in rating.

Like we mentioned earlier, questions about past behavior are key because there is less opportunity for an applicant to provide a response that is not capable of being verified.  Interview questions can also elicit information about whether the applicant’s views and practice style are consistent with the medical staff and hospital’s culture.

For example:

Q:        What attracts you to this hospital/why are you interested in working here?

Q:        Tell us about a time in which a case of yours was reviewed through the peer review process and how you participated/responded.

Q:        Describe a situation in which you were asked to do something beyond your established responsibilities (e.g., service on medical staff committee, fill in a call coverage gap) and tell us how you responded.

Q:        Tell me about a time when you had a conflict with another physician and how you dealt with that conflict.

Q:        What role do you see the nursing staff playing in patient care in the hospital?

If interviewing every applicant simply isn’t an option because of time constraints, interviews should, at the very least, be conducted when there are questions or concerns about the applicant’s qualifications, experience, education, training, or other aspects of his or her practice that have been raised at any time during the review of the application.  Thus, rather than having a strict requirement that all applicants will be interviewed, you can adjust your Policy language to instruct that applicants may be interviewed.

April 26, 2018

Posted on by hortyspringer

QUESTION:        We have an orthopedic surgeon who is applying for appointment and clinical privileges at our system who has a troubling malpractice history.  Within the past five years, he has settled three malpractice claims ($190,000, $100,000, and $75,000).  He also has two other cases that are pending.  We are reluctant to grant him appointment.  At the same time, we are not sure if we have enough to deny his application. What should we do?

ANSWER:            Malpractice claims can be tough sometimes.  A single claim, standing alone, does not necessarily indicate a problem. However, multiple malpractice claims may reflect underlying issues pertaining to judgment, skill, communication, or behavior, all of which are relevant considerations for appointment and clinical privileges.

Furthermore, according to a study by the New England Journal of Medicine, only 4% of physicians had three or more malpractice claims.  The risk of recurrence of a malpractice claim increases with the number of previous paid claims.  Physicians who have three paid claims had three times the risk, or a 24% chance, of another paid claim within two years.  According to a Vanderbilt University study, physicians with past records of malpractice claims can be expected to have “appreciably worse claims experience” than other physicians in future years.

You can also review relevant data available from the National Practitioner Data Bank, which includes medical malpractice payments by practitioner type and state.  This may help to put your applicant’s malpractice history in perspective.  Malpractice history, including judgments and settlements, is also important because it could be used against the hospital in a negligent credentialing case if the physician were appointed and then subsequently was sued.

Therefore, before you move forward with the application, you should require the applicant to resolve the concerns raised by his malpractice history.  One way to review and assess the concerns would be to review the underlying malpractice cases through your peer review process or to use an expert from an external peer review organization for this purpose.  Since the burden of resolving questions about qualifications is on the applicant, the applicant should be responsible for providing a copy of the medical records from the malpractice claims.  The applicant would also be responsible for any costs associated with this review.

Remember to keep the burden on the applicant to resolve your concerns.  If the concerns cannot be resolved, you may determine that the application is incomplete and should not be processed.  Denying the application is a last resort that is almost never needed.