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.