October 19, 2023

QUESTION:
Our hospital is in the process of refining our peer review process.  Our existing framework involves a multi-tiered review where cases are evaluated and assigned a level of complexity or concern, ranging from Level 1 to Level 4.  We are actively exploring enhancements to our current process.  Any suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
The peer review process is one of the most essential processes a hospital has in its toolbelt.  While a hospital’s peer review process should be tailored to fit its culture and needs, we do have some general guidelines that we suggest for everyone.

(1)        Ditch Numbering Systems
Reviewers should be assessing whether there was a concern with the care provided and how that concern could be addressed.  The problem with numbering is that no case ever fits neatly into one category.  So, more energy is put into deciding if a case is a 2 or 3 than what really matters in the review process (i.e., how to help a practitioner improve).

(2)        Incorporate Progressive Steps
Only rarely does peer review need to result in disciplinary action.  Some events can be addressed through a simple conversation or a letter educating the provider on what went wrong.  Other times, tools like performance improvement plans (for example, additional training) might do the trick.  Whatever you choose, your process should emphasize educational, collegial options with disciplinary action being the rare last resort.

(3)        Be Flexible
Do not create such a strict peer review policy that you box yourself in.  It’s not reasonable to create a rigid structure (i.e., first offenses will receive an educational letter, second offenses will receive a collegial conversation, etc.).  Make sure your process is constructed in a way that gives your peer review committee flexibility to identify the most effective performance improvement option under the circumstances.  A fundamental tenet should be to use the least restrictive option that will keep patients safe and help the practitioner to improve.  On the other hand, if a real red flag case comes through, you want to make sure your policy clearly states you can handle the case appropriately (by taking more significant action right away, if needed) instead of being required to work your way through each of the steps in the policy.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

September 28, 2023

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

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.

April 20, 2023

QUESTION:
Our peer review committee recently developed a plan for a physician that involved proctoring of a number of the physician’s cases.  It came up in our meeting as to whether patients had to be informed that their physician is being proctored.  Is this required?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Proctoring is part of the confidential peer review/professional practice evaluation process.  But, as a practical matter, patients may need to be made aware of the fact that another physician may be involved in their care.  Proctoring – whether in surgical or non-surgical situations – often includes not only review of the patient’s medical record but also an examination of the patient, which means that some explanation regarding that individual’s presence must be provided.  While not always the case, if proctors are instructed to intervene in a surgical procedure if necessary, the patient should be in­formed that the proctor may participate in the procedure and that information should be included in the patient’s written consent to the procedure.

While it is the proctored physician’s responsibility to inform his or her patients about the proctoring, the patient does not have to be informed of the reason for the proctoring.  A simple statement will suffice, such as:  “The hospital and our team are committed to providing appropriate care.  Dr. Proctor will also be [working with me/may examine you/review your medical record/scrub in and be ready to assist in your procedure if necessary].”

Finally, documentation completed by the proctor should not be included in the patient’s medical record.  We recommend that proctors be provided with “proctoring forms” that elicit information in as objective a format as possible about the issues that are being assessed, and that these forms be maintained as part of the hospital’s peer review/professional practice evaluation process – not as clinical records maintained in the medical record.

March 9, 2023

QUESTION:
A few weeks ago, an anesthesiologist resigned from our medical staff to take an opportunity out of state.  Recently, one of the anesthesiologist’s cases was flagged by a peer review specialist who sent me an email asking whether we should continue with our standard peer review process.  Do you have any guidance?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
This situation is more common than you’d think, but always tricky.  Because the anesthesiologist is no longer a member of your medical staff, we would advise that peer review of that anesthesiologist’s medical services provided at your hospital should be discontinued.  The purpose of peer reviewing a specific physician is to ensure and improve quality; this purpose can no longer be effectuated if the anesthesiologist has left the medical staff.  Among other things, many of the tools that could be used to improve care would no longer be available (such as asking the questions about the case, having the anesthesiologist complete additional training, or monitoring a few of the anesthesiologist’s cases at the hospital).

Also, depending on state law, a malpractice attorney may argue that the peer review privilege no longer applies to reviews conducted after the anesthesiologist has left the medical staff.  Finally, if the anesthesiologist turns around and sues the hospital for whatever reason, continuing peer review of the anesthesiologist after their departure may give an eager plaintiff’s attorney something to hang onto (e.g., allegations that the purpose of the review is to harm the physician).

This does not mean the case should completely fall out of review; system-issues that were identified outside of the care being provided by the anesthesiologist are still relevant and should be addressed.  We would just advise that any issues related to the anesthesiologist’s practice at the hospital be put aside.

February 2, 2023

QUESTION:
We have a physician who has been working his way through our peer review process with very little sustained success.  Recently, there were several significant clinical events that caused Medical Staff Leaders to escalate the matter to the Medical Executive Committee which decided to commence an investigation.

Our question is “do we have to re-do all the great work done by our Peer Review Committee, or can we use that as part of our investigation?”

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is an excellent question and one that we hear quite frequently.  We know from experience Medical Staff Leaders will be able to address and resolve most issues that come to their attention, whether they are of a clinical or behavioral nature, using collegial and progressive steps.  However, every once in a while, a practitioner can’t or won’t change and Medical Staff Leaders will need to escalate concerns to the Medical Executive Committee for a formal, capital “I” investigation.

The procedure for conducting an investigation is laid out in your credentials policy, bylaws or investigation manual.  Once you get to an investigation, the stakes are high for everyone, so it is very important to follow the procedures outlined in your documents.

It is also important that the investigation is thorough, fair, and objective.  However, that does not mean that you have to re-do all the work done by the Peer Review Committee.  That would simply make no sense.  The Medical Executive Committee, or more likely an investigating committee appointed by the Medical Executive Committee, should have access to any documents that it deems relevant, including documents from the practitioner’s credentials file and quality file.  The investigating committee can and should review and rely on informational and educational letters along with letters of awareness, and letters of counsel or guidance.  It can and should review and rely on prior performance improvement plans (aka voluntary enhancement plans).  The investigating committee can and should rely on case reviews and reports from external experts.

If you have worked your professional practice evaluation process, once you get to the investigation phase, you may have already done most of the heavy lifting.  The role of the investigating committee may be primarily to pull together all prior progressive actions that had been taken and consider potential patterns and trends.  Additionally, the investigating committee may want to conduct interviews of individuals with relevant information including staff, the department chair and members of the Peer Review Committee.  Critically, even if your governing documents don’t expressly require it, the investigating committee will want to provide the subject physician with notice of the concerns that have been identified and an opportunity to discuss, explain or refute those concerns.

So, the bottom line is you can and should consider information reviewed by and generated for the Peer Review Committee at part of an investigation.  But you should also use the investigation to answer any outstanding questions and to meet with the subject physician.

October 13, 2022

QUESTION:
As part of our peer review process, we want to develop a plan requiring a physician to obtain 15 hours of CME (to improve performance in a couple of identified areas).  Our peer review committee has always forwarded these types of recommendations to the MEC and Board for approval prior to implementing them.  I recently heard that this is no longer recommended.  Can you explain why?  Did something change about MEC and Board oversight of Medical Staff activities?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Medical Staffs have come a long way in the past 20 years.  As the roles and responsibilities of Medical Staff leaders have multiplied, many Medical Staffs have decided to dedicate the MEC to matters of oversight and strategy, while delegating the detailed, day-to-day work of the Medical Staff to other committees.  This is how the Credentials Committee first came into fashion.  More recently, the Leadership Council and Multispecialty Peer Review Committee have begun to assume greater roles within the Medical Staff.  This means not limiting the work of the committee to conducting clinical case reviews and reporting those results to the MEC.  Most modern peer review committees are responsible for so much more.

For example, multispecialty peer review committees are commonly responsible for all of the following:

  • Taking full responsibility for implementing the Medical Staff peer review policy
  • Recommending revisions to the peer review policy and process
  • Reviewing and approving the OPPE and FPPE indicators recommended by the departments for each specialty
  • Keeping track of system issues that are identified through the peer review process, to ensure that they are addressed and do not fall through the cracks
  • Reviewing cases referred to the committee for peer review (which includes developing performance improvement plans for practitioners, where appropriate)

Any peer review committee that is performing all of the above functions must be engaged, educated, and savvy about peer review (so it’s important to make good choices about committee composition and to provide periodic training).  So, it only makes sense a hospital and medical staff would honor the commitment of the committee’s members by letting go of micromanagement and embracing a pure oversight role.

Oversight does not mean abdication of all responsibility.  But oversight does not require detailed information.  All the MEC and governing board need is enough information to be sure that good policies are in place and that the responsible individuals are following them.  This means summary/aggregate data reports work well.  For example, it should suffice if reports to the MEC and Board list the total number of cases reviewed through the peer review process within a specified period of time, with that data then broken down by department or specialty, with information about how those cases were addressed – e.g., through a letter to the practitioner, a collegial intervention, a performance improvement plan, or otherwise).

Empowering the multispecialty peer review committee to implement the peer review process has other benefits, in addition to demonstrating honor and respect for the committee’s members.  For one, by giving primary authority over the peer review process to a non-disciplinary committee, the Medical Staff promotes a peer review process grounded in collegial, progressive steps – rather than a punitive, threatening process.

Further, if collegial steps are unsuccessful in managing a practitioner’s performance issues, the MEC and/or Board may eventually need to get involved.  By keeping those bodies out of the initial collegial efforts of the Medical Staff peer review process, the hospital and Medical Staff preserve the members as disinterested individuals, allowing the MEC and/or Board to review matters with a fresh set of eyes when a practitioner comes before them.  This promotes fairness in the process, since practitioners who are subject to review can rest assured that there will be multiple layers of review – before committees/bodies that are for the most part disinterested – before any “disciplinary” action were to be imposed.

To conclude – we absolutely do recommend that hospitals and Medical Staffs empower their peer review committees to implement CME requirements, as well as other performance improvement measures, without first having those measures taken to the MEC or Board for approval.  It’s efficient, it shows trust in those leaders doing the legwork on peer review, and it is an important part of a collegial, fair process.

June 23, 2022

QUESTION:
We’re updating our process for peer review of clinical concerns. We want it to be more effective and less feared by Medical Staff members. Any tips?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  Here are a few:

  1. Create a Multi-Specialty Committee. Create a multi-specialty committee that works with practitioners on a voluntary basis to address clinical concerns.  If the multi-specialty committee believes there’s an opportunity for improvement with the care provided by a practitioner, the committee presents an improvement plan to the practitioner and asks the individual to voluntarily participate.  If the practitioner disagrees with the need for the improvement plan, the matter would be referred to the Medical Executive Committee for its independent review under the Medical Staff Bylaws/Credentials Policy.  This approach allows the multi-specialty committee to remain a supportive committee with no disciplinary authority, while the MEC is a second layer of review when needed.
  1. Obtain Specialty Expertise. Identify small committees or individuals (depending on state law) for each specialty that provide the specialty expertise that informs the decisions of the multi-specialty committee.  In larger hospitals with more volume, these committees/individuals can be authorized to take certain performance improvement actions (such as sending educational letters or engaging in collegial counseling discussions) while more significant concerns are sent to the multi-specialty committee for its review.
  1. Get Input from the Practitioner. A process will be perceived as more fair and credible if the practitioner under review has been provided notice of any concerns and an opportunity to provide input about those issues.  No performance improvement action should occur until the practitioner’s input has been obtained.
  1. Adopt Mechanisms to Identify “Lessons Learned” and “System/Process Issues.” Peer review should help everyone get better.  Case review forms and committee minutes should specifically ask if a review identified a lesson that would be of value to others in the specialty, or a system/process issue that needs to be fixed.  There should be mechanisms to ensure that such lessons learned or system/process issues are shared with the appropriate individuals or committees for follow-up action, and the multi-specialty committee should keep these items on its agenda until it receives word that they have been addressed.
  1. Stop Scoring. Rather than asking reviewers to assign a numerical value or category to a case, the reviewer should simply assess whether there was a concern with the care provided.  If so, how could that concern be addressed?  Scoring causes practitioners to be defensive and diverts energy away from what really matters in the review process (i.e., how to help a practitioner improve).
  1. Words Matter! The term “peer review” is viewed negatively by most practitioners.  Using new terminology will help to emphasize that a new process has been created that is educational and not focused on restrictions of privileges.  Consider creating a “Committee for Professional Enhancement” or “Performance Improvement Committee” rather than a more traditional “Peer Review Committee.”  Similarly, refer to the process as the “professional practice evaluation” process rather than “peer review” process.

For more information about creating an effective peer review process for clinical concerns, please join us this season at The Peer Review Clinic in Las Vegas, Orlando, or Nashville!

June 9, 2022

QUESTION:
This past weekend, a patient presented to the emergency room with an injury that required immediate surgery.  Our hospital was out of the patient’s network, so when it was determined that the patient was stable, we offered them the option to be safely transferred by ambulance (per doctor’s orders) to a hospital that is down the street and in-network.  However, the patient declined this offer and chose to remain at our hospital for the duration of their care.  Can we give the patient a written notice and get them to consent to waive their protection under the No Surprises Act, which would allow us to balance bill them for any subsequent post-stabilization services during their stay?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
At this point, the answer is no.  Under the No Surprises Act (“NSA”), the hospital is prohibited from balance billing patients for emergency services even if the patient signs a consent waiving their protections under the NSA for such services.  Generally, post-stabilization services are also considered emergency services under these new rules.

However, in certain circumstances, an out-of-network provider or facility may provide notice to and get written consent from a patient that would waive their balance billing protections for post-stabilization services.  For this to occur, the following requirements must be met:

(1)        the patient is stable enough to travel using nonemergency medical transport to an available in-network provider/facility and that provider/facility is within reasonable traveling distance considering the patient’s condition;

(2)        the patient or their representative is in a condition where they can receive information and provide informed consent;

(3)        the hospital provides written notice and obtains written consent from the patient to waive their balance billing protections; and

(4)        the hospital is in compliance with all relevant state laws.

At this point, the patient requires medical transportation via ambulance in order to travel.  As such, the patient cannot receive notice or give consent to waive their balance billing protections under the NSA.  The hospital is prohibited from balance billing the patient for any post-stabilization services provided to the patient during their stay so long as that requirement is not met.  If, however, there comes a time when the patient can be safely transferred to another hospital through means other than medical transport, but the patient wishes to remain at your hospital, then you may consider providing notice and getting written consent from the patient to waive their protections so long all other notice and consent requirements mentioned above are met.

May 5, 2022

QUESTION:
We’ve got a debate going on at the MEC.  Does the Chief of Staff vote, not vote, or vote only when needed as a tie-breaker?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:

No need to debate any longer!  The good news is that, for the most part, Medical Staffs and their leaders are free to conduct their meetings however they wish.  You are not bound by any sort of formal parliamentary procedure (e.g. “Robert’s Rules of Order”) and, in turn, can set your own rules.  So – the answer to your question is that your Chief of Staff, who chairs the MEC, can vote if your Bylaws and related Medical Staff documents say so.  If the documents are silent, as a general rule, the chair decides procedural matters for the committee.  Since the chair, in this case, has a bit of a conflict of interest, the committee itself may wish to weigh in and make a determination (or develop a policy/guideline for how it will conduct meetings/voting).

If you are wondering how other organizations do it, note that there is not one, “right” position on this matter.  We see some Medical Staff committees that lean toward inclusivity and let all members of the committee vote, whether or not they are the chair, whether or not they are an administrator (e.g. CMO, Medical Director, Service Line Director), and whether or not they are physicians.  I tend to prefer this type of organizational structuring, since I believe providing voting rights to each member of the committee honors the time and energy that they commit to the committee’s work.

We also see Medical Staff committees that only allow physician members to vote (including any chairs, employed physicians, administrators).

Finally, we sometimes see Medical Staff committees that only allow voting by specified, physician members (sometimes limited to physicians who are members of the Active Staff category).

Again, as a general rule, it is up to each organization to establish its own culture and rules regarding meetings and voting.  Note, however, that you should always check with your medical staff counsel before making changes to committee membership and/or voting, since counsel can verify that any changes are consistent with the statutes and other laws in your state that exist to protect (through immunities and privileges) the peer review activities that your Medical Staff conducts through its committees.  Some states have a more narrow definition of a “peer review committee” or “quality assurance committee” that requires membership to be all or mostly physicians, etc.  Counsel can help to make sure you stay within the confines of applicable law and maximize your protections.