performance improvement plan

April 4, 2024

Posted on by Courtney Patterson

QUESTION:
We have a podiatrist who practiced at our hospital.  There were a number of serious complaints about her behavior and her ability to work well with others which we tried to address through our Professionalism Policy.  Ultimately, we developed a rigorous Performance Improvement Plan for Behavior, which she signed.  She resigned almost immediately thereafter.  Now, she wants to come back.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Many medical staffs have stringent threshold requirements that applicants must meet in order to be eligible for appointment.  While those criteria might render a physician ineligible if they resigned while under investigation, the criteria probably don’t include a resignation while under a Performance Improvement Plan.  You should check your threshold criteria just in case.

Remember, the burden is always on the applicant.  Even if your criteria do not render the podiatrist ineligible for appointment, that does not mean that, as part of your credentialing process, you should appoint her to your medical staff (of course, denial of appointment is always a last option).  You can require her to demonstrate that she meets your standards, including your standard to work harmoniously with others.  You can require her to address and resolve the questions that had been raised about her conduct before she resigned.

Furthermore, you could inquire about whether she completed the relevant elements of the Performance Improvement Plan.  For instance, if the Performance Improvement Plan included anger management, CME, and/or coaching elements, you could ask for confirmation (and evidence) that she satisfied those elements.  Additionally, you could ask about her practice history since she resigned, including whether she has ever been subject to any collegial efforts or progressive steps at any other facility since she resigned.

Just like with any problem applicant, you should tell her that no further action will be taken until she fully resolves the questions and concerns about her behavior.  It is usually a good idea to give an individual like this a set time frame to respond, as reflected in your bylaws documents and notice that “If you do not fully and completely respond to our questions in the next 60 days, we will deem your request to be withdrawn and no further action will be taken.”

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

September 21, 2023

Posted on by Courtney Patterson

QUESTION:
We recently received an NPDB report for one of our Medical Staff members.  The Adverse Action Code, used by the hospital in its NPDB report, was “Voluntary Surrender of Clinical Privilege(s), While Under, or to Avoid, Investigation Relating to Professional Competence or Conduct.”  However, the narrative section of the NPDB report reflected that the physician resigned during a “performance improvement plan” (PIP).  We don’t consider a PIP to be an investigation and ordinarily we would not report a physician who resigned during a PIP.

The problem is that the threshold criteria in our bylaws state that an individual is ineligible for appointment, reappointment or continued appointment if they “resign during an investigation or in exchange for not conducting an investigation.”  Our bylaws also provide that failing to satisfy threshold criteria at any time results in an automatic relinquishment of appointment and clinical privileges.

The physician is a longstanding member of our Medical Staff and we have never had any quality or behavior issues with him.  Based on the NPDB Report, he doesn’t seem to meet our threshold criteria and his appointment should be automatically relinquished, at least according to our bylaws.  What do we do?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Before you make any decisions, you are going to need additional information.  You can start with the physician and ask him to provide information regarding the underlying issues that led the other hospital to adopt the PIP.  You are also going to want a copy of the PIP itself.  Your bylaws should allow you to request this information from the physician.  You can also request the physician to sign an authorization so you can get information directly from the other hospital.  This will allow you to understand their side of the story.

Depending on what you learn, it may be appropriate to allow the physician to request a waiver for failing to satisfy one of the threshold criteria.  For instance, if you learn that the PIP was being carried out as part of initial collegial efforts and progressive steps activities, without any history of prior problems, and would not have risen to an investigation in your hospital, you may consider granting the physician a waiver.

The waiver process typically involves all the heavy hitters including input from the department chair and a recommendation from the Credentials Committee and Medical Executive Committee with final action by the Board.  Any grant of a waiver should expressly articulate the reasons supporting the decision.

Even if you decide to grant a waiver, that doesn’t mean you have to ignore the PIP.  If the PIP developed by the other hospital has useful conditions, you may want to adopt some or all of them to help you evaluate the physician’s performance and provide meaningful feedback to him.

The language in the Bylaws pertaining to automatic relinquishment if threshold criteria are not met should include a reference to the waiver process.  Therefore, the granting of a waiver should address and resolve the automatic relinquishment with no need for further action.

Both the threshold eligibility criteria and the automatic relinquishment language in the Bylaws are incredibly useful tools and are two of our “go to” favorites.  As we expand our list of robust threshold criteria and our list of events that trigger an automatic relinquishment, we should also strive to make sure that these are being applied in a way that is fair and reasonable.  Along these lines, it is important to make sure we have adequate information, especially from the involved physician, before making a final decision.  And if occasionally we bend to make sure the result is appropriate under the circumstances, that’s not a bad result either.

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

September 13, 2018

Posted on by hortyspringer

QUESTION:        We are reviewing an application from a new applicant who has excellent credentials with respect to his education, training, experience and current clinical competence.  However, the applicant has had trouble working with others and was even subject to a behavioral performance improvement plan at his last hospital.  The Credentials Committee is split over how important behavior really is when a candidate otherwise has excellent credentials.  How should we proceed?

ANSWER:            This is a question we hear often.  You finally find a physician who has excellent credentials, but acts out a little.  While everyone has a “bad hair day” once in a while, it is a mistake to bring someone into your organization whose behavior will undermine your culture of safety.

This is the terminology used by The Joint Commission when it issued its 2008 Sentinel Event Alert.  According to the Sentinel Event Alert:

“Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and managers to seek new positions….All intimidating and disruptive behaviors are unprofessional and should not be tolerated.”

The Sentinel Event Alert was followed by the adoption of a leadership standard that required hospitals to adopt a code of conduct or professionalism policy.

Recognizing the importance of working professionally and respectfully with others, most credentials policies require applicants to demonstrate an “ability to work harmoniously with others, including interpersonal and communication skills sufficient to enable them to maintain professional relationships with patients, families, and other members of health care teams.” The bottom line is that behavior matters in the quality of care you provide in your hospital.

So in credentialing the applicant, get as much information from previous hospitals and past employers about his or her ability to work with others.  Ask for a copy of the behavioral performance improvement plan.  Ask for a copy of the underlying concerns that led to the adoption of the performance improvement plan.  Request a copy of any correspondence that relates to behavioral concerns.  And don’t forget to make follow-up phone calls to references and to others who may have worked with the applicant in the past to get a candid evaluation of any problems.

A physician who experienced a problem period because of personal issues, but then improved should not be problematic.  A physician with a longstanding pattern of inappropriate and unprofessional behavior is not likely to change when he or she lands at your hospital.  Don’t forget the middle option of conditional appointment which can also be useful in laying out expectations and consequences should the inappropriate behavior reoccur.

Please join us in our national program – Credentialing for Excellence – where we discuss this and other credentialing challenges.

July 20, 2017

Posted on by hortyspringer

QUESTION:        Our Leadership Council is developing a Performance Improvement Plan (“PIP”) for a practitioner at our hospital who does not play well with others.  One member of our leadership team suggested that we send the practitioner out for a psychiatric evaluation before finalizing the PIP.  Does this make sense?

ANSWER:            As a rule of thumb, we recommend that you stay away from requesting psychiatric evaluations from practitioners who have failed to meet your Medical Staff’s standards regarding professionalism.  In our experience, such an evaluation only tends to cloud the Leadership Council’s thinking on how best to address the inappropriate behavior that has been identified. Additionally, a request for an evaluation might give the practitioner a basis for claiming that he or she was discriminated against under the ADA if disciplinary action is ultimately taken.  That is why we believe it is better to focus on the behavior at issue rather than spending too much time and energy trying to identify its cause.

Of course, impairment and “burnout” are real concerns.  So, if there is compelling evidence that suggests that the practitioner is dealing with a legitimate health issue, then an evaluation may be appropriate.  But that should be managed through your process on practitioner impairment, not your Professionalism Policy.

To make sure you have the tools you need to manage difficult scenarios like this, please join Barbara Blackmond and Rachel Remaley on August 1, 2017 for a special audio conference on “best practices” for your Professionalism Policy.  More information can be found here.

November 5, 2015

Posted on by hortyspringer

QUESTION:        In response to a credentials verification inquiry about a former staff member, one of our newest department chiefs disclosed that this former staff member had been subject to a performance improvement plan. Now a lawyer for that former staff member has demanded a retraction and threatened to sue for defamation. What should we do?

 

ANSWER:           Refer the letter to counsel, who can send a response educating the lawyer about custom and practice in credentialing and about the immunity for provision of accurate information. There is nothing to retract if the response was true, nor would a defamation claim succeed. (More importantly, such a letter can help with other potential audiences, in case a suit is filed.) Credentialing would break down if no one responded truthfully to verification inquiries. The Health Care Quality Improvement Act provides for immunity in favor of those who provide information to other hospitals. 42 U.S.C. Section 11111(a)(2). However, even meritless suits are a drain on resources and may have a chilling effect on future leaders.

Immunity helps if there is a suit, but are there ways to minimize the likelihood of a suit? If there were issues with a former staff member, it may be prudent for all inquiries to be referred to a central place, such as a VPMA/CMO, who can guide a new Chief. Your Medical Staff Services Professional can also be a great help in fielding such inquiries and helping new leaders who have never faced such an issue. In the future, you might consider, as a policy matter, developing a standard communication for use when inquiries relate to a practitioner who experienced concerns, advising inquiring hospitals that no response to any credentialing inquiry will be provided without a signed specific release. That will send a message without revealing anything.

Be sure you have excellent and strong release and immunity language in your Bylaws or Credentials Policy. And – be sure your new Chiefs attend our Credentialing Clinic or Complete Course for Medical Staff Leaders! The first step to an excellent medical staff is careful credentialing!