OPPE

November 17, 2022

Posted on by Courtney Patterson

QUESTION:
As we can see from The Joint Commission at Work snippet, it looks like The Joint Commission expanded the appointment term for practitioners to three years from two years.  What should we consider if we are interested in moving to three-year appointment terms?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Per the November 4, 2022 FAQ “How are reappointment/re-privileging dates determined?” The Joint Commission instructed that “[r]eappointment/re-privileging is due no later than three years from the same date from the previous appointment or reappointment, or for a period required by law or regulation if shorter” (emphasis added).  The FAQ notes that “[a]dditional information will be published in the December 2022 Perspectives Newsletter regarding a change to the reprivileging/reappointment time frame.”  Thus, it is not clear if this rule has been finalized, especially since the standards available continue to require a two-year appointment period.  Nonetheless, before you move in the direction of allowing a longer appointment term, you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the FAQ above states, the appointment term may be shorter than three years “if required by law or regulation.”  In other words, state hospital law or regulation will control so you want to be sure to check that first.  Also, when The Joint Commission implemented the Ongoing Professional Practice Evaluation (“OPPE”) standard, they considered doing away with the reappointment process.  The Joint Commission’s rationale was that a well‑functioning OPPE process, which requires “ongoing” monitoring of clinical care and other factors, would render reappointment unnecessary.  The Joint Commission never did away with the reappointment process.  However, you should evaluate whether you have a well-functioning OPPE process that catches issues and trends quickly, allowing you to act, intervene, and protect patients.  If not, it may be wise to maintain the shorter reappointment term of two years to take a closer look at practitioners’ clinical practice and professionalism at the Hospital.

Stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

January 20, 2022

Posted on by jwilbert

QUESTION:

Our hospital has granted clinical privileges to practitioners who work primarily in outpatient facilities which are a part of the same health system as the hospital.  How do we conduct FPPE to confirm competence and OPPE for these practitioners when they have limited to no volume in the hospital, but the hospital wants them to retain their privileges in case it needs them to provide patient care services?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLIE CHULACK:

During the COVID-19 pandemic, this is an important question because hospitals are scrambling for methods to cover the clinical needs of an influx of patients when there are community spikes in infections and hospitalizations.  Thus, they may want to have practitioners “at the ready” even though their primary practice location is not in a hospital.

Nonetheless, you do have some options when it comes to these “low volume practitioners.”  To use The Joint Commission terminology, for “focused professional practice evaluation” (or “FPPE”) to confirm competence and “ongoing professional practice evaluation” (or “OPPE”), the hospital can have the low volume practitioner provide one or more of the following types of information:  (1) information from their primary practice location, such as ongoing professional practice evaluation reports, a quality profile, and/or patient satisfaction surveys, (2) detailed reference requests from their primary practice location, (3) detailed peer evaluations from individuals who have directly observed or who are in a regular referral relationship with the practitioner, or (4) medical records of patients treated at the primary practice location so that the hospital may conduct an evaluation of the care provided.

If the low volume practitioner works almost exclusively in outpatient settings, the above information, if part of a general request, may not address their clinical skills in a hospital setting.  But, you can structure the requests so that the information received relates to the clinical privileges that the practitioner has in the hospital.  For example, while not completely analogous, if the primary practice location is an Urgent Care Center for a practitioner seeking or granted clinical privileges in emergency medicine, the information requested could target the performance of histories and physicals, the ordering and interpretation of diagnostic studies, the administration of medications, and the requesting of consultations/making of appropriate referrals.

For those hospitals that are accredited by The Joint Commission, keep in mind the FAQ issued on March 4, 2021, which provides as follows:  “When practitioner activity at the ‘local’ level is low or limited, supplemental data may be used from another CMS-certified organization where the practitioner holds the same privileges.  The use of supplemental data may NOT be used in lieu of a process to capture local data.”  Thus, The Joint Commission requires that at least some of the data used to confirm competence come from the hospital conducting the evaluation.  The Joint Commission gives hospitals significant flexibility in the type of information collected by the hospital for professional practice evaluation, so you can be creative.

We should mention that for health systems that have outpatient locations operating as departments of the hospital (i.e., as provider-based outpatient departments), then any FPPE or OPPE that was completed in that outpatient setting would be viewed as having occurred “in the hospital.”  In this case, The Joint Commission requirements would be satisfied based on what was done in the outpatient setting.

Another tool to deal with low volume practitioners is to grant an exception that permits them to remain subject to FPPE to confirm competence for the duration of the Practitioner’s appointment term for some or all clinical privileges.  This option may be used because of community need, coverage requirements, the rare nature of a given procedure or treatment, or other relevant factors.  We believe this is a reasonable interpretation of the relevant standards based on the needs of hospitals during the COVID-19 pandemic.

October 21, 2021

Posted on by Courtney Patterson

QUESTION:
We are trying to implement care guidelines for hip and knee replacements across the system.  The leadership has agreed on the guidelines generally and is now discussing implementation and enforcement.  They want to monitor the established metrics through the OPPE process and, if a practitioner is outside the metrics, have them automatically referred for FPPE (the matter would be referred to the Medical Staff peer review committee for further review and a determination of what collegial measures, if any, could be taken to get the practitioner into compliance).  If the practitioner remains outside the metrics cutoff after 90 days, the leadership has recommended that the practitioner’s joint replacement privileges be deemed automatically relinquished for failure to comply.  This method of enforcement does seem a whole lot easier than conducting an investigation and going through all of the procedures that are necessary to revoke privileges.  What do you think?

ANSWER:
While it is true that implementing an automatic relinquishment is easier than conducting an investigation, making an adverse professional review recommendation, and/or conducting a hearing and appeal process, not every situation is well suited to automatic relinquishment.

The situations where automatic relinquishment is most appropriate are those that are objectively assessed, require little to no evaluation of the practitioner’s competence or conduct, and tend to be focused on administrative requirements.  For example, failure to comply with documentation requirements, failure to attend a meeting when requested by the Medical Staff leadership, or loss of licensure are all matters that routinely lead to automatic relinquishment within hospitals/medical staffs all across the country.

There are some situations where failure to follow a protocol or guideline could appropriately lead to implementation of automatic relinquishment.  For example, consider the scenario where a hospital and medical staff establish a clinical protocol requiring a practitioner to either comply with the protocol or, alternatively, document contemporaneously in the file the reason why he or she is not following the protocol.  Automatic relinquishment of privileges for failure to comply with the administrative requirement of documenting the reasons for non-compliance would be acceptable, since the evaluation of the matter would be objective (e.g. did the practitioner comply?  If not, was there documentation of why in the chart?).  Further, the relinquishment would be related to an administrative matter (failure to comply with a documentation requirement applicable when not complying with a protocol).

However, if the practitioner were being reviewed because, although he or she was documenting the reasons for not following the protocol, the Medical Staff leadership felt those reasons were not good – that would be a different matter.  That would involve evaluation of the practitioner’s clinical judgment (e.g., the explanations for why the protocol was not followed), which would require subjective evaluation, clinical expertise, and a judgment about the practitioner’s clinical competence and/or conduct. Because of that, the consideration of whether the practitioner was justified in not following the protocol would better lend itself to review under the Medical Staff professional practice evaluation process (which is specifically designed to evaluate performance issues utilizing the expertise of the Medical Staff leaders and, afterwards, implement collegial solutions to help practitioners improve).

The situation you describe sounds like it may be more akin to the latter situation described above, in which case automatic relinquishment would not be the best solution.  It’s true that words like “guidelines” and “metrics” give the initial impression that a matter is being objectively evaluated – and that can lead many to believe that automatic relinquishment is a viable option for all situations involving failure to comply.  Our suggestion is to focus more on the actual metrics that are under consideration.  Is non-compliance with those metrics measured objectively, without the need to consider the explanation of the practitioner (e.g. H&P was on the chart prior to surgery, surgical note was on the chart prior to surgeon leaving the OR)?  If the metrics are “administrative” in nature, like these, then automatic relinquishment may be the right enforcement method.

But, if non-compliance with metrics is measured objectively at first –and then requires subjective evaluation to verify whether non-compliance was justified (e.g. patient was an appropriate candidate for the procedure, diagnostic tests were appropriate, appropriate medications were given), then review through the peer review process may be a better option than resorting to automatic relinquishment.  In your scenario, since the original plan is to refer matters of non-compliance into the FPPE process, it sounds like your guidelines may require subjective evaluation and be less “administrative” and, in turn, less suited to automatic relinquishment.

Of course, as always, the best option is to consult with your in-house or Medical Staff counsel, as the best answer depends on the specific protocols/guidelines you are looking to implement and enforce, as well as the language of your Medical Staff Bylaws and related governance documents.

January 23, 2020

Posted on by hortyspringer

QUESTION:  Our hospital is part of a health system. Is there any way we can take advantage of our size and resources to improve our peer review process?

ANSWER:  Yes! Health systems have many options for improving their professional practice evaluation (“PPE”)/peer review processes that aren’t available to individual hospitals. Here are a few examples.

1.  System PPEC

Health systems can create a system Professional Practice Evaluation Committee (“System PPEC”) with representatives from each hospital in the system. The System PPEC could:

(a) serve as a resource for the PPECs of individual system hospitals;

(b) compile triggers for PPE/peer review, OPPE data indicators, and criteria for Informational Letters, and share those with local PPECs for their approval; and

(c) compile and disseminate best practices and lessons learned from each system hospital.

The System PPEC would assist local PPECs, but the local PPEC would remain responsible for all decisions regarding a review.

2.  System Specialty Review Committees

System Specialty Review Committees comprised of specialists from system hospitals could be appointed to review cases upon the request of a system hospital. The PPEC at the entity requesting the review would retain full responsibility for deciding what to do with each case. The System Specialty Review Committee would simply serve as another source of expertise for that PPEC.

System Specialty Review Committees could also monitor aggregate data related to system practitioners and facilities in their specialties and disseminate best practices and lessons learned through the review process.

3.  PPE/Peer Review Clearinghouse Policy

Systems could develop a policy by which central administrative personnel serve as a “clearinghouse” for case review services. System hospitals would notify the clearinghouse of practitioners who have agreed to provide case review services for other system hospitals. A hospital that requires a case review would contact the clearinghouse, which would identify a practitioner who has agreed to provide such services.

4.  PPE/Peer Review Services Agreement Between Facilities

Under this option, one system hospital (the “PPE Services Provider”) could provide PPE/peer review services to another system hospital (the “Requesting Hospital”). The PPE Services Provider and the Requesting Hospital would execute an agreement to describe their respective obligations. The services to be provided by the PPE Services Provider might include case review services, regular participation in meetings of a PPE/peer review committee, and assistance with the FPPE process to confirm practitioner competence.

5.  PPE/Peer Review Services Agreement For Individual Reviewer

Under this option, an individual practitioner who has privileges at one system entity would
provide PPE/peer review services directly to another system entity. Essentially, the practitioner would be serving as an external reviewer for the facility requesting services. The system could develop a template agreement by which these services are provided.