credentialing

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.

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.

November 30, 2023

Posted on by Courtney Patterson

QUESTION:
Our hospital is part of a regional system, and while there had been some low-level discussions about whether we may want to have a unified medical staff, the consensus was that we aren’t there yet – however, there is a strong desire for our medical staff processes to become more integrated even if unification isn’t our ultimate outcome.  Are there options short of formally becoming one unified medical staff?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Absolutely!  While one of the main objectives of medical staff unification is consistency in core processes such as credentialing, privileging and peer review – with the goal towards promoting a single standard of care and reducing the administrative burden for the medical staffs and their leaders – many of these benefits can be obtained even in the absence of a unified medical staff.

A good first step is having similar (or identical) policies for credentialing, privileging and peer review at each system hospital that use the same eligibility criteria for appointment and privileges and the same process for evaluating applications among similar types of hospitals.  The same is true for policies governing clinical peer review, professionalism and health.  Consistent bylaws, policies and procedures across the system help the medical staff leaders to do their jobs, and are also helpful for members of the medical staffs who may practice at more than one system hospital to know what the rules are.

Even if a system has the same process for credentialing, privileging and peer review and has adopted the same standards for these activities, there remains the potential for different outcomes when different committees are making decisions.  Steps that the system and its medical staffs can take to address this concern – short of unification – include things such as:

  • Utilizing a central Credentials Verification Office to ensure each medical staff gets the same information about applicants;
  • Utilizing a system (or regional) Credentials Committee, which includes representation from all relevant hospitals, to avoid inconsistent recommendations being made by individual Credentials Committees on practitioners who are applying to more than one system hospital. The same goal can be accomplished in the peer review process by utilizing a system Peer Review Committee – a process that can be even more helpful when system hospitals include much smaller facilities that may have fewer individuals able to serve on such committees; and
  • Incorporating provisions into the medical staff bylaws/credentials policies for each system hospital which state that certain types of significant actions that directly implicate a practitioner’s qualifications to practice – such as performance improvement plans, precautionary suspensions, automatic relinquishments and final actions by the board – become effective immediately at each system hospital where the individual practices, unless the automatic action is waived by the “receiving” hospital’s MEC and the Board.

While these steps don’t achieve the same level of consistency that a unified medical staff would, they are definite steps along the “continuum of integration” that most systems are exploring and implementing.  Also, as the medical staff sees these integration steps in action, they can also help to quell the concerns that are sometimes voiced about possible unification and can be good first steps towards that goal.

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

November 9, 2023

Posted on by Courtney Patterson

QUESTION:
As a part of the threshold eligibility criteria in our Credentials Policy, physicians are required to be board certified by a board approved by the ABMS or AOA.  Can we accept certification by a foreign board from a physician who has applied for Medical Staff appointment and clinical privileges?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a complex question since it may implicate other threshold eligibility criteria in your Credentials Policy.  For example, many medical staffs and hospitals also require a physician to have successfully completed a residency and, if applicable, a fellowship training program approved by the ACGME or AOA.  Thus, if a physician is board certified by a foreign board, it may also mean they did not receive their training in a residency approved by the ACGME or AOA and, consequently, do not meet that criterion as well.

Nonetheless, assuming all other threshold eligibility criteria are met, you may accept certification by a foreign board even though your Credentials Policy requires physicians to be board certified by an ABMS or AOA board.  However, you would first have to go through the waiver of threshold eligibility criteria process outlined in your Credentials Policy.  As an alternative, some hospitals with which we work that repeatedly come across this issue have incorporated a process in their Credentials Policy to use when evaluating whether a foreign board meets the standards of their hospital.  They consider whether the foreign board has comparable certification requirements, including those related to: (1) education and training; (2) letters of attestation or reference; (3) licensing; and (4) written and oral examinations.  A hospital may also give consideration to whether the foreign board is accepted by, for example, the relevant board of the American Board of Medical Specialties for purposes of qualifying for board certification in the United States (e.g., members of The Royal Australian College of General Practitioners are eligible to receive initial board certification through the American Board of Family Medicine) and if the Medical Executive Committee has previously determined that the foreign board meets the standards of the hospital.

It is also important to remember that the burden of demonstrating and producing information to support an applicant’s qualifications lies with the applicant.  This should be specifically stated in your Credentials Policy.  Therefore, if an applicant has certification by a foreign board, the burden is on them to provide information related to the factors described above for evaluating whether the foreign board meets the standards of the hospital.  If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

October 26, 2023

Posted on by Courtney Patterson

QUESTION:
A new physician in a difficult to recruit specialty just fell into our laps.  When I asked my lawyer to prepare an Employment Agreement with a November 1, 2023 Starting Date, I was sent an agreement with a number of conditions that cannot possibly be completed in a week. Why must lawyers make these things so complicated?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Your lawyer is doing you a favor.

The beginning of an employment relationship is not a simple matter.  The Employer must staff and equip an office for the new physician.  Not something that can be typically done in a week.  However, even if there is sufficient space and personnel for the new physician’s practice, don’t forget that all new employees, including physicians, must complete all required pre-employment screens – that takes time.

But what is often overlooked at the beginning of the legal relationship between a physician and his/her Employer is that since the Employer will be legally obligated to begin to compensate the physician as of the starting date of the agreement, as of that date, the Employer needs to make sure that the physician can perform all of the duties that are set forth in the agreement and (most important to the Employer) that the Employer will begin to be paid for the professional services that are provided by the new physician.

Many commercial insurers take 60-90 days to “credential” a new physician.  They also typically take the position that they have no legal obligation to reimburse the Employer for the professional services that are provided by that physician to the third party’s enrollees until that credentialling process has been completed.  If this process is not timed correctly, the Employer could be on the hook for up to three months of the physician’s salary with no revenue to cover that cost.

But let’s now look at the fact that a physician in a needed specialty fell into your lap.  I am not saying that this can never happen – but it is more likely than not, that this physician found themself in a situation where they were terminated from their old job and needed a new one fast.

You won’t know whether you are lucky, or stuck with a problem physician, until the Employer and the hospital’s credentialling processes have been completed.  Again, this takes time – time that is well spent!

Just as the Employer wants to be paid for the new physician’s services on their first day of employment, the Employer will also want that physician to be able to exercise clinical privileges as of that date as well.  That cannot happen unless the Agreement states that the Agreement does not begin until the hospital credentialling process has been successfully completed.

That is why we advise our clients that hiring is a process.  It takes time.  While you must be flexible, most hires require 60-90 days’ advance notice to set up the physician’s practice, to complete pre-employment screens, to credential the physician with third-party payers, and to allow sufficient time to complete the medical staff credentialling process.  The Agreement should require all of this to be completed by a date-certain, which is also the “Starting Date” of the Agreement and the date that the Employer has the legal obligation to begin to compensate the physician.

The Agreement should also specifically provide the Employer with the right to cancel the Agreement if the physician fails to complete this process in a timely manner, especially if that delay is caused by a clinical or behavioral concern that is discovered during the medical staff credentialling process.

While it is lawful to pay a reasonable signing bonus to a physician as soon as the physician signs on the dotted line, it is preferable not to be obligated to make any kind of upfront payment until the physician is on site and has begun to provide services as your employee.  However, if a signing bonus is paid before the physician begins to provide services, then the Agreement should make it clear that that upfront money must be repaid if the physician fails to start when required by the Agreement.  It is also a good idea to pro-rate the signing bonus so that a portion of that payment must be repaid if the physician does not remain employed for a minimum period of time.

If you have a quick question about this, e-mail Henry Casale at hcasale@hortyspringer.com.  If you want an in-depth discussion of Hospital-Physician employment relationships, compensating physicians and APPs, the Fraud and Abuse laws, the False Claims Act and much more, join me, Dan Mulholland and Hala Mouzaffar in Phoenix from November 16-18, for our Hospital-Physician Contracts and Compliance Clinic.

September 29, 2022

Posted on by Courtney Patterson

QUESTION:
We are in the process of credentialing a new applicant.  We spotted some red flags pretty early on.  The Chair of the Credentials Committee knows physicians where the applicant trained.  Those physicians are not included by the applicant on the application.  Can the Credentials Committee Chair still call these physicians or are we limited to talking to the references the applicant listed?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  When it comes to gathering information about applicants for appointment, we like to say, “The sky is the limit.”  This means that you are permitted to obtain information from anyone who might have information that is relevant to the applicant’s qualifications.  The permission to obtain information is probably reflected in your Bylaws or Credentials Policy.  For instance, we include the following language in our documents:

The individual authorizes the Hospital, Medical Staff leaders, and their representatives to consult with any third party who may have information relating to the individual’s professional competence or conduct or any other matter relating to their qualifications for initial or continued appointment, and to obtain communications, reports, records, and other documents of third parties that may be relevant to such questions.  The individual also specifically authorizes third parties to release this information to the Hospital and its authorized representatives upon request.

This language protects both your hospital for asking for information and the person who has the information for providing it to you.  As added protection, there should also be similar information in the application form itself.  So, the bottom line is that you are not restricted from gathering information from individuals who the applicant has identified in the application.

The one area where you want to be careful is if you are calling a current employer.  The applicant may not have given notice of their intention to leave.  Usually, we recommend holding off on asking for a reference from the current employer until a little later in the process.  But, ultimately, you can ask the employer for a reference and, as a best practice, follow up with a phone call as well.

Looking for other guidance on difficult credentialing issues, why not join us in Las Vegas on November 17-19 for Credentialing for Excellence!

May 19, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital is negotiating with health insurers to perform delegated credentialing on their behalf.  The insurers are telling us that we cannot have a hearing officer option for conducting a hearing when providers are subject to certain adverse actions, such as termination of participation on a panel. Is this correct?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes. This is how health insurers interested in delegating credentialing functions to health care providers interpret the Medicare Advantage rules for provider participation.  According to those rules, a health insurer involved in the Medicare Advantage program has to give physicians certain rights when it suspends or terminates the physician’s participation agreement.  Among those rights are the right to receive notice of the reasons for the action and the right to appeal that action. The rules go on to talk about a hearing panel but only state that the insurer (or insurer’s delegate) must ensure that the majority of the hearing panel members are peers of the affected physician.

Now you could follow the constitutional principle of English law that instructs that “everything that is not forbidden is permitted” and go ahead and draft your delegated credentialing policies so that they allow for the hearing officer alternative to using a hearing panel.  However, this may create headaches down the road since health insurers have to perform a pre-delegation audit of your policies and procedures before delegating credentialing and will most likely require a revision to your policies if they permit the hearing officer option. Some providers, such as hospitals, use their existing medical staff credentialing policies and procedures to build off of to put delegated credentialing processes in place. To the extent that a hospital is interested in doing so and its existing Credentials Policy allows for the hearing officer option, it can simply revise its Credentials Policy to indicate that the option is not available when a hearing is offered for delegated credentialing purposes (as opposed to medical staff purposes).

April 21, 2022

Posted on by Courtney Patterson

QUESTION:
Do hospital-employed physicians have a conflict of interest with respect to private practice physicians in matters involving credentialing?  Privileging?  Peer review?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Some independent physicians may feel that employed physicians should not be involved in leadership positions for fear that their employment relationships could influence their actions.  Legally, there is no support for viewing an employment relationship as a disqualifying factor.  And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians.

Of course, if a specific concern is raised about an individual’s participation in any given review, it always makes sense to consider whether an individual has a conflict that could bias the process (e.g., direct competitors, close friends, etc.).  These types of situations should be addressed under the Medical Staff’s conflict of interest guidelines.  But those guidelines should make it clear that employment by, or other contractual arrangement with, a hospital does not, in and of itself, preclude an individual from participating in Medical Staff functions.

October 14, 2021

Posted on by Courtney Patterson

QUESTION:
What should be done if an applicant for reappointment is under investigation but his current term of appointment is set to expire before the investigation is completed?

ANSWER:
As most know, the Joint Commission has made it clear that privileges are granted for a period not to exceed two years and that continuations or extensions are not appropriate.  While this rule likely came about to avoid routine extensions due to administrative failures to process reappointments in a timely manner, it makes situations like the one above difficult to manage.

Keeping in mind this two-year limitation, we’ve found the best way to address applicants for reappointment who are currently under investigation is through a short-term conditional reappointment pending the outcome of the process.  This keeps the hospital on the right side of the Joint Commission, while providing time for the investigation to work its way out.

Having language in your Medical Staff Bylaws documents to support this approach is a key to good credentialing.

May 20, 2021

Posted on by Courtney Patterson

QUESTION:   “It’s been a long time since we first adopted our bylaws. Some leaders are hoping for a clean slate with a total rewrite, others want to continue to tweak the bylaws we have. What’s the best approach?”

ANSWER:     There is no single right answer to this question but it is a question we get quite a bit.  We have found that if you have done a major revision of your bylaws documents (including your related credentialing, peer review, health and professionalism policies) within the last five years or so, you should be able to tweak the existing documents to reflect any changes in the law and recommended best practices.

Even if it’s been ten years or so since you totally revised your bylaws, you can probably stick with the current documents.  There are a couple of critical qualifications.  First, it’s important that you are starting with an excellent set of bylaws.  This means that the bylaws you have in place are easy to read and follow, the bylaws do not contain lots of internal cross-references (these are almost impossible to keep up-to-date), and the bylaws reflect best practices.  And second, it’s also important that you have been careful, thorough, and diligent in updating the bylaws every two years or so.  In our experience, updating a mediocre set of bylaws only takes you from a bad situation to one that is worse.

If it’s been more than ten years since you’ve done a major overhaul of your bylaws, it’s time to do so.  Just about everything has changed in the medical staff world in the last decade.  Whether it’s the role of APPs, the use of telemedicine, the need for consistency between and among sister hospitals, the focus on collegial efforts and progressive steps in the peer review process, or the non-punitive approach to dealing with health issues, the list of issues that have substantially changed is almost endless.

It’s so important to have modern, up-to-date bylaws, and related policies, to reflect the world in which you are practicing and to provide the necessary tools to solve the challenges you are likely to face.  A major overhaul of your bylaws documents might seem like a daunting task, but we can assure you the time you devote to the project on the front end, will be time well spent.  And you and your colleagues will reap the rewards for many years to come.

For more information on developing BFB (aka Best Friend Bylaws), join us live for The Complete Course for Medical Staff Leaders in Disney (September 19-21), Phoenix (November 18-20), Naples (January 27-29) or New Orleans (April 7-9).