medical staff

February 15, 2024

Posted on by Courtney Patterson

QUESTION:
We recently received a complaint that a Medical Staff member may have been inappropriately accessing medical records.  Do we handle this as a Medical Staff matter or should we refer this to our HIPAA Privacy Officer?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Given the Privacy Officer is responsible for implementing the hospital’s HIPAA policies, they should be made aware of any potential violations by a Medical Staff member.  In addition, Privacy Officers have significant experience investigating and responding to privacy violations and they will understand the law’s regulatory requirements, including if breach notifications are required.

At the same time, there are good reasons for using the Medical Staff process to review HIPAA complaints involving physicians:

  • Physicians may be more likely to listen to other physicians.
  • Hospital licensing regulations generally require the Medical Staff to review the actions of its members.
  • The Medical Staff process is protected by a statutory peer review privilege, which results in confidentiality and candid discussion.
  • Violations of HIPAA (or any regulation) may include a behavioral component that will be of interest to the Medical Staff leadership.

This is why we recommend that the Medical Staff’s professionalism policy or code of conduct include a provision describing how individuals responsible for other hospital policies (such as the HIPAA Privacy Officer or the Corporate Compliance Officer) will be notified of concerns that involve their area of responsibility.  This allows for coordination between the Medical Staff leadership and the individual responsible for the other policy.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

February 8, 2024

Posted on by Courtney Patterson

QUESTION:
This question was raised by a registrant at our Complete Course for Medical Staff Leaders last week – should we notify Medical Staff members immediately, as soon as a case “falls out” in our peer review process?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No!  There are so many different indicators that hospitals track – some required by Medicare, some by accreditation standards, some based upon specialty-specific evidence-based medicine – and the mere fact that a case “tripped” one of these many indicators does not mean that there are specific concerns that need to be addressed.  We hear that Medical Staff members already tend to view the peer review process as something that can feel more punitive than performance improvement based, and if we start sending letters out to individuals the minute that a case has met a specific indicator, we risk making that perception even worse.  Professional practice evaluation/peer review policies should clearly state that cases that make their way into the process can be closed at the earliest, most initial stage of review, and that practitioners need to be notified of cases only once questions or concerns about the care provided by the practitioner have been identified.

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

February 1, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, we have had several physicians on our medical staff refuse to consult on a case because the patient was covered by Medicaid.  The patient had been admitted to the hospital, so we knew it wasn’t an EMTALA issue, but they still needed to be seen by a specialist.  Have you seen this at other hospitals, and do you have any suggestions on how to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Perhaps not surprisingly, this issue has come up before.  In an effort to address it, we recommend including language in your Medical Staff Governance Documents to make it clear that, not only do physicians have an obligation to see all patients in the ED, but they also have an obligation to respond to requests for consult (regardless of the patient’s payor status) when they are on call.

For instance, you might spell out in the Bylaws that Active Staff members have a responsibility to serve on the ED on-call schedule, and to “accept inpatient consultations, when on call for the ED.”  Similar language could be added to the Bylaws with respect to other staff categories.

Additionally, the threshold criteria for appointment and clinical privileges could require individuals to “agree to fulfill all responsibilities regarding inpatients, including responding to requests for consult when serving on the ED on‑call schedule.”  The basic responsibilities and requirements of appointment should also include an agreement “to provide emergency call coverage, consultations, and care for unassigned patients.”  This language will help ensure appropriate coverage not only for the ED but also for inpatients who require specialty consultations.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

January 4, 2024

Posted on by Courtney Patterson

QUESTION:
Are Medical Staff Professionals protected under the Health Care Quality Improvement Act (“HCQIA”)?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
While it is rare for a Medical Staff Professional to be named individually in a lawsuit brought by a physician subject to a professional review action, the protections under the HCQIA should be available.  The HCQIA’s protections are available for “professional review bodies,” “any person acting as a member or staff to the body,” and “any person who participates with or assists the body with respect to the [professional review] action.”  Typically, Medical Staff Professionals are not appointed as members of professional review bodies, but the immunity under the HCQIA, as noted above, is also available for those who participate or assist the body with respect to a professional review action.  This provision could apply to duties that Medical Staff Professionals perform, including preparing materials for review by, for example, the Medical Executive Committee.  But keep in mind, for the immunity to apply when a professional review action is taken, certain enumerated standards in the law must be met.  The HCQIA also provides immunity from damages for those providing information to professional review bodies regarding the competence or professional conduct of a physician.  Again, this would most likely cover the tasks performed by Medical Staff Professionals if they are playing a supporting role for Medical Staff committees.

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

September 28, 2023

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, and 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 as Medical Staff leaders. Legally, there is no support for viewing an employment relationship as a disqualifying factor when it comes to participating in these activities. And we have rarely seen the type of political pressure from management that independent physicians worry about being brought down on employed physicians who do.

Of course, if a specific concern is raised about an individual’s participation in any given process, it always makes sense to consider whether an individual’s employment would result in a conflict of interest under the guidelines that have been adopted by the Medical Staff.  But, practically, it seems difficult to imagine a Medical Staff adopting bylaws documents that would exclude an employed physician from serving in a leadership position – or from otherwise participating in credentialing and peer review activities – given the large number of physicians who are now employed by hospitals and/or their affiliates.

If you have additional questions about this, please contact Ian Donaldson at IDonaldson@hortyspringer.com.

September 14, 2023

Posted on by Courtney Patterson

QUESTION:
Our Medical Staff Leadership Council intends to ask a physician to agree to a voluntary Performance Improvement Plan (“PIP”) to address behavioral concerns. Do you have any tips for drafting the PIP?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  A PIP is much more likely to be successful if the letter to the physician describing the PIP is carefully drafted and addresses certain issues.  Here are a few thoughts:

  1. Details matter.  The Leadership Council should identify exactly what it wants the physician to do and then include those specific expectations in the PIP.  For example, it’s not enough to say “complete additional EMR training.”  The PIP should identify what type of EMR training, how many hours, the deadline for completion, and how completion will be documented.  The key point is that the requirements should be clear so everyone knows what’s expected.
  1. Identify appropriate PIP elements to address the behavioral concern. Different types of concerns benefit from different types of training.  For example, a physician who has difficulty interacting with patients may benefit from different training than a physician who is abrasive to staff.  Fortunately, the number of training options has increased significantly in recent years, so it’s generally possible to find a program that fits your specific needs.  Here’s a link to a 45-page document from the Federation of State Medical Boards that describes various training options:  https://www.fsmb.org/siteassets/spex/pdfs/remedprog.pdf.  If your hospital is a member of a health system, you could also touch base with other hospitals and ask for their experience with different training options.
  1. Identify a process for reviewing and addressing subsequent instances of inappropriate behavior, especially if there is a pattern of concerns with the physician. The PIP could identify the fact-finding that will occur (which will always include obtaining the physician’s input about any future allegations) and then describe the options the Leadership Council has for dealing with violations of the PIP.  You want to give the Leadership Council flexibility to deal with less significant violations of the PIP; for example, through a collegial discussion.  But if a “Formal Violation” of the PIP occurs, you could outline the progressive steps that will be used for the first, second, and third Formal Violations (for example, final letter of warning, three days of off-site training at the physician’s expense, 360 degree review, agreement to not exercise privileges for 10 days, referral to the Medical Executive Committee for review under the Medical Staff Bylaws, etc.).
  1. Think about the duration of the PIP. Particularly if it describes specific consequences for inappropriate behavior, will those consequences be in effect for six months, 12 months, or indefinitely?  Will the number of “Formal Violations” be re-set to zero after a certain amount of time has passed without a violation?
  1. Use a proper tone, one that is as positive as possible. A PIP for behavior may need to be firm to convey the expectations for behavior going forward.  Still, the PIP should be collegial and explain why appropriate behavior benefits patient care.  The PIP should not sound scolding or punitive.

If you have a quick question about this topic, feel free to e-mail Phil Zarone at pzarone@hortyspringer.com.  For more information, join us at the Peer Review Clinic in Phoenix from November 16-18, 2023.

August 10, 2023

Posted on by Courtney Patterson

QUESTION:
One of our medical staff members asked if, under the Health Insurance Portability and Accountability Act (“HIPAA”), he can inform a patient he is currently treating about the cancer history of a former, deceased patient who was a family member of the current patient.  The physician believes that this information will assist the patient in making choices about the direction of her treatment. Can he do that?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
The HIPAA Privacy Rule protects “individually identifiable health information,” which is defined to include a patient’s past physical health condition.  Thus, the deceased patient’s cancer history meets this definition.  However, since the patient is deceased, is the information still protected under the HIPAA Privacy Rule?  The answer to this question is “yes.”  The HIPAA Privacy Rule protects individually identifiable health information of deceased patients for 50 years following the date of the death of the individual.  Assuming the patient hasn’t been dead for 50 years, the patient’s individually identifiable health information is subject to the protections of the HIPAA Privacy Rule.

It is certainly important that a patient understand their family history, including risks for certain diseases and disorders so that they can proactively address those risks.  Here, the treating physician’s hands aren’t completely tied when it comes to counseling the patient on such matters.  He has a few options.  The physician can rely on an exception to the HIPAA Privacy Rule, which permits the disclosure of protected health information for treatment activities.  According to guidance issued by the United States Department of Health and Human Services, the “treatment” exception “allow[s] use and disclosure of protected health information about one individual for the treatment of another individual.”  If the physician is concerned that counseling on a family member’s cancer history does not definitively meet the definition of “treatment” under HIPAA, he has other options.  First, and most obviously, the physician can ask the patient if she is aware of any family history of cancer.  If not, the physician can obtain a written HIPAA authorization from a personal representative (e.g., the deceased patient’s executor or administrator) to disclose the information.  If the physician is unable to obtain a written authorization for whatever reason (such as an inability to locate the personal representative) or believes this is too burdensome, the physician can still make treatment recommendations without disclosing health information protected under HIPAA.  For example, the physician may recommend more frequent cancer screenings based on the family history to which he is privy.

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

May 4, 2023

Posted on by Courtney Patterson

QUESTION:
We have recently had several applicants who are returning to practice after a significant gap in time.  What kind of policy or practices do you recommend for practitioners who are reentering practice after an extended time off?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
Practitioners may take an extended leave from practice for a variety of reasons, including family obligations, personal health, alternative careers, or retirement. Several resources for physicians returning to practice are available through the AMA and the Federation of State Medical Boards, among others.

From a Medical Staff perspective, one of the eligibility criteria we typically include in our Credentials Policy is that practitioners are not even eligible for privileges unless they can demonstrate clinical activity in their specialty in an acute care hospital setting in the past two years.  Any exception could be considered through the waiver process and might include conditions on their appointment to ensure a safe return to practice.

We have also worked with hospitals to develop a Practitioner Re-Entry Policy that gives the Medical Staff leaders the authority to develop a Re-Entry Plan for any such applicant.  Depending on the circumstances surrounding the practitioner’s absence, such a Re-Entry Plan could include, among other things, a competency evaluation, a refresher course, and/or retraining in order to ensure that the individual’s general and specialty skills are up to date.

The bottom line is that the Medical Staff must confirm the individual’s current clinical competence before putting its stamp of approval on them.

February 16, 2023

Posted on by Courtney Patterson

QUESTION:
Our bylaws say that new medical staff members are “provisional” for at least 12 months, sometimes for 24 months.  Is this the same thing as focused professional practice evaluation?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
No – or at least it shouldn’t be!  Focused professional practice evaluation (“FPPE”) is the Joint Commission terminology for the period of focused review that is required for following the grant of any new clinical privileges as the way of confirming practitioner competence – this means a focused review of all privileges for new applicants and all new privileges for existing practitioners (i.e., increases in privileges).  FPPE can be accomplished in many different ways – chart review, proctoring/direct observation, external reviews, even discussions with others who are involved in the care of the individual’s patients.  The Joint Commission does not mandate the duration of FPPE for any practitioner and, in fact, have specifically noted in the past that using a traditional 12-month provisional period as the time frame for performing FPPE could be overly burdensome for practitioners who had high volumes.

To that end, there is no requirement that hospitals and medical staffs maintain a provisional appointment status, though we do still see many hospitals that continue to utilize that status, generally as a way to assess the “citizenship” aspects of medical staff appointment – like behavior, attendance at and participation in medical staff affairs, completion of medical records, fulfillment of call obligations, etc.  In addition, at the same time, but generally for a much shorter duration, all new members are subjected to FPPE, the requirements of which depend on the practitioner’s specialty and clinical privileges.  The key is to understand that if a medical staff is going to maintain a provisional status or process, it should be addressed separately from the FPPE to confirm competence process.