Medical Staff Credentialing, Privileging And Peer Review

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Medical Staff Credentialing,Privileging and Peer ReviewPresented by:www.TheHealthLawFirm.com

Main Office:1101 Douglas AvenueAltamonte Springs, FL 32714Phone: (407) 331-6620Fax: (407) 331-3030Website: http://www.TheHealthLawFirm.com

Today’s Lecturer:Michael L. Smith, R.R.T., J.D.

Medical Staff Credentialing,Privileging and Peer Review The practice of allopathic medicine orosteopathic medicine is the practice of a learnedprofession. The difference between a profession and a tradeor craft is that professions are self-regulated.

Medical Staff Credentialing,Privileging and Peer Review (cont.) The hospital does not possess the education,training and experience necessary to regulatethe practice of allopathic medicine orosteopathic medicine. The self-regulation of the practice of allopathicmedicine and osteopathic medicine is theresponsibility of the organized medical staff.

Medical Staff Credentialing,Privileging and Peer Review (cont.) The organized medical staff is independent ofthe hospital governing body. The relationship between the medical staff andthe hospital governing body has existed sincethe late 1800s when the hospital industry beganexpanding based upon advances in treatmentand technology.

Medical Staff Credentialing,Privileging and Peer Review (cont.) The relationship between the medical staffand hospital governing body has beenfurther defined by federal and state lawsand regulations, which is the subject of ourdiscussion today.

Federal The Social Security Act - MedicareConditions of Participation Health Care Quality Improvement Act

State Section 395.0191 Section 395.0193 Section 766.101

Definitions Medical staff credentialing is the process throughwhich a physician is granted status as a memberof the medical staff. Basically, medical staff membership is based uponthe physician demonstrating the requirededucation, training and character references tomeet the minimum requirements for medical staffmembership.

Definitions (cont.) Hospitals may have different types of medicalstaff memberships that provide the physicianwith different rights and responsibilities. Forexample, a hospital may grant physiciansactive, courtesy, affiliated, honorary orinactive membership on the medical staff.

Medical Staff Privileges The process through which a physician isauthorized to perform specific procedures. The physician must demonstrate theeducation, training and experiencenecessary to perform the procedure.

Peer Review The process through which the quality of careprovided by a physician is evaluated. Peer Review is an ongoing process - privilegesare renewed every two years through a formalprocess. Peer Review may also be performed inresponse to a specific incident and may result ina formal hearing.

Medicare Conditions of Participation 42 C.F.R. Section 482.12(a) The governing body must determine inaccordance with state law, which categories ofpractitioners are eligible candidates forappointment to the medical staff. At the veryleast, the medical staff must be composed ofdoctors of medicine and doctors of osteopathy.

Medicare Conditions of Participation 42 C.F.R. Section 482.12(a) (cont.) The governing body must appoint members ofthe medical staff after considering therecommendations of the existing members of themedical staff. Only the hospital governing bodyhas the authority to grant medical staffmembership and privileges to provide care in thefacility.

Medicare Conditions of Participation 42 C.F.R. Section 482.12(a) (cont.) The governing body must assure that the medicalstaff has bylaws. The governing body must approve the medicalstaff bylaws and rules and regulations.

Medicare Conditions of Participation 42 C.F.R. Section 482.12(a) (cont.) The governing body must ensure that the medicalstaff is accountable to the governing body for thequality of care provided to the patients. IncidentReporting. The governing body must ensure that the criteriafor selection to the medical staff are individualcharacter, competence, training, experience andjudgment.

Medicare Conditions of Participation 42 C.F.R. Section 482.12(a) (cont.) The governing body must ensure that underno circumstances is the granting of medicalstaff membership or professional privilegesdependent solely upon certification,fellowship or membership in a specialty bodyor society.

Accrediting Organizations Medicare does not have the time ormanpower to inspect and regulate individualfacilities. Medicare has granted deeming authority toprivate organizations to accredit individualfacilities.

Accrediting Organizations (cont.) Joint Commission (16,000 hospitals) Healthcare Facilities Accreditation Program (220hospitals) National Integrated Accreditation for HealthcareOrganizations -DNV (international)

Joint Commission StandardMS.01.01.01 The medical staff creates a written set ofdocuments that describe its organization andstructure. The medical staff bylaws, the medicalstaff rules and regulations, and the medical staffpolicies.

Joint Commission StandardMS.01.01.01 (cont.) The documents create a system of rights andresponsibilities, and accountabilities betweenthe organized medical staff and the governingbody. The documents must address self governanceand accountability to the governing body.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for:– The structure of the medical staff.– The qualifications for appointment to themedical staff.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The process for privileging and re-privileginglicensed independent practitioners, which mayinclude the process for privileging and reprivileging other practitioners (ARNPs andphysician assistants).

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– A statement of the duties and privilegesrelated to each category of the medical staff(for example, active, courtesy). Not clinicalprivileges.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The requirements for completing and documentingmedical histories and physical examinations. Themedical history and physical examination arecompleted and documented by a physician, anoralmaxillofacial surgeon, or other qualified licensedindividual in accordance with state law and hospitalpolicy.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– A description of those members of the medicalstaff who are eligible to vote (inactive andhonorary usually do not vote).

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The process, as determined by the organizedmedical staff and approved by the governingbody, by which the organized medical staffselects and/or elects and removes the medicalstaff officers.– A list of all the officer positions for the medicalstaff.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The medical executive committee’s function, size,and composition, as determined by the organizedmedical staff and approved by the governing body;the authority delegated to the medical executivecommittee by the organized medical staff to act onthe medical staff’s behalf; and how such authority isdelegated or removed.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The process, as determined by the organizedmedical staff and approved by the governingbody, for selecting and/or electing andremoving the medical executive committeemembers.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– That the medical executive committeeincludes physicians and may include otherpractitioners and any other individuals asdetermined by the organized medical staff.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– That the medical executive committee acts onthe behalf of the medical staff betweenmeetings of the organized medical staff, withinthe scope of its responsibilities as defined bythe organized medical staff.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for: (cont.)– The process for adopting and amending themedical staff bylaws.– The process for adopting and amending themedical staff rules and regulations, andpolicies.

Joint Commission StandardMS.01.01.01 (cont.) The medical staff bylaws must contain therequirements for:– The process for credentialing and recredentialing licensed independentpractitioners, which may include the processfor credentialing and re-credentialing otherpractitioners.

Peer Review Peer Review is an ongoing processconducted by the medical staff. Peer Review may also be conducted on anindividual basis and may become adversarial.

Peer Review (cont.) Self-Regulation requires members of the medicalstaff to examine the care provided by their peersand may require the medical staff to take adverseaction against a peer. This is the area wherelegislation in the last 20 years has further definedthe relations between the medical staff, thegoverning body and the individual practitioner.

Peer Review (cont.) Most individuals, including professionals,do not want to take action against theirpeers. Federal and Florida laws provideprotections for physicians participating inpeer review.

Peer Review - Federal Law Health Care Quality Improvement Act The Health Care Quality Improvement Act sets forthfour requirements to obtain immunity for physiciansand institutions participating in a peer review activity,which is called a “professional review action” in theHCQIA. The HCQIA provides immunity from moneydamages to participants in the peer review process.

Peer Review - Federal Law (cont.) HCQIA immunity applies to peer reviewaction that was taken:1. in the reasonable belief that the action is inthe furtherance of quality health care;2. after a reasonable effort to obtain the facts ofthe matter;

Peer Review - Federal Law (cont.) HCQIA immunity applies to peer review actionthat was taken: (cont.)3. after adequate notice and hearingprocedures are afforded to the physicianinvolved or after such other procedures areenacted as are fair to the physician under thecircumstances; and

Peer Review - Federal Law (cont.) HCQIA immunity applies to peer review actionthat was taken: (cont.)4. in the reasonable belief that the action waswarranted by the facts known after suchreasonable effort to obtain facts and aftermeeting the requirements of paragraph (3)above.

Peer Review - Federal Law (cont.) Adversarial peer review must be conducted inaccordance with the medical staff bylaws, rulesand regulations and policies. HCQIA affords immunity from suit and frommonetary damages if due process is provided.Poliner v. Texas Health System, 537 F.3d 368 (5thCir. 2008). 33m judgment for physicianoverturned based upon HCQIA immunity.

Florida Laws Section 395.0191(7), Florida Statutes. There shall be no monetary liability on the part of,and no cause of action for injunctive relief ordamages shall arise against, any licensed facility,its governing board or governing board members,medical staff, or disciplinary board or against itsagents, investigators, witnesses, or employees, oragainst any other person, for any action arising outof or related to carrying out the provisions of thissection, absent intentional fraud.

Florida Laws (cont.) Section 395.0193(5), Florida Statutes. There shall be no monetary liability on the part of,and no cause of action for damages against, anylicensed facility, its governing board or governingboard members, peer review panel, medical staff, ordisciplinary body, or its agents, investigators,witnesses, or employees; a committee of a hospital;or any other person, for any action taken withoutintentional fraud in carrying out the provisions of thissection.

Florida Laws (cont.) Section 766.101, Florida Statutes (2) A medical review committee of a hospital orambulatory surgical center or health maintenanceorganization shall screen, evaluate, and review theprofessional and medical competence ofapplicants to, and members of, medical staff. As acondition of licensure, each health care providershall cooperate with a review of professionalcompetence performed by a medical reviewcommittee.

Florida Laws (cont.) (3)(a) There shall be no monetary liability on the part of,and no cause of action for damages shall arise against,any member of a duly appointed medical reviewcommittee, or any health care provider furnishing anyinformation, including information concerning theprescribing of substances listed in s. 893.03(2), to suchcommittee, or any person, including any person actingas a witness, incident reporter to, or investigator for, amedical review committee, for any act or proceedingundertaken or performed within the scope of thefunctions of any such committee if the committeemember or health care provider acts without intentionalfraud.

Florida Cases Cedars healthcare Group Ltd, et al. v.Mehta, M.D., 16 So. 3d 914 (Fla. 3d DCA2009). All physician's claims againsthospital and medical staff dismissed physician did not plead intentional fraudwith particularity.

Florida Cases (cont.) Lawnwood Medical Center, Inc. v. Sadow,M.D., 43 So. 3d 710 (Fla. 4th DCA 2010).Suit allowed because hospital did notfollow its own bylaws, 5m in punitivedamages for defamation upheld.

“Practical Matters the Physician MustKnow When Confronted by aPeer Review Proceeding”

“Peer Review Hearing” a/k/a Privileges Hearing Fair Hearing Medical ReviewHearing Credentials Hearing Medical StaffHearing Disciplinary Hearing CredentialsCommittee Hearing Ad Hoc CommitteeHearing

General Truths About Peer ReviewHearings1. The process is different at every hospital. Medical staff bylaws are different. Hearing procedures are different. Attorneys may not be able to participate.

General Truths About Peer ReviewHearings1. The process is different at every hospital.(cont.) Hearing may not be allowed for certain typesof adverse actions. Burden may be placed on the physician.

General Truths About Peer ReviewHearings1. The process is different at every hospital.(cont.) Physician my have to pay for certain part ofit. (Example: the court reporter)Investigation and appeals processes may bedifferent.

General Truths About Peer ReviewHearings2. The hospital’s resources are unlimited. Use of certain experienced companies andorganizations with hospital “leanings.” Use of certain law firms which specialize indoing nothing but hospital representation.

General Truths About Peer ReviewHearings2. The hospital’s resources are unlimited. (cont.) Hospital’s personnel and attorneys do all ofthe work and provide all of the support for themedical staff and the peer review committee.The hospital/medical staff has unlimitedaccess to hospital employees and documents.

General Truths About Peer ReviewHearings3. You need legal representation from the timeyou hear a complaint has been filed or that amatter is being investigated.Incorrect Attitudes: “I’m going to wait and see what happens.” “I’m going to wait and see if charges arefiled.”

General Truths About Peer ReviewHearings3. You need legal representation. (cont.)Incorrect Attitudes: “My friend is president of the medical staff andhe told me he would make this all go away.”“I was one of the first physicians at that hospital.They’re not going to do anything to me.”

General Truths About Peer ReviewHearings4. You must be represented by an experienced,knowledgeable healthcare attorney. Thehospital will be represented by an attorneyexperienced in peer review.

General Truths About Peer ReviewHearings5. The “nonconformist” or “trouble maker” will beforced into a hearing situation. The guyeveryone likes won’t be.

General Truths About Peer ReviewHearings6. If hospital administration (including nursingstaff) is out to get you, you will be gotten. If the hospital administration identifies you as a“bad physician,” “trouble maker” or “disruptivephysician” you are dead.Your prior cases may be reviewed andscrutinized retrospectively for problems thatwere “overlooked.”

General Truths About Peer ReviewHearings6. If hospital administration (including nursing staff)is out to get you, you will be gotten. (cont.) Every poor result or outcome will be scrutinized.You will be written up for everything thathappens.You will be written up for incidents that othersare never written up for.

General Truths About Peer ReviewHearings6. If hospital administration (including nursing staff)is out to get you, you will be gotten. (cont.) You will be written up for violations of hospitalpolicies that others are not written up for.Incidents where you were just “joking around”will be written up as “sexual harassment.”

General Truths About Peer ReviewHearings6. If hospital administration (including nursing staff)is out to get you, you will be gotten. (cont.) Any patient complaints over insignificantmatters that would previously have beenhandled in a routine way, will now be treatedas significant events.

General Truths About Peer ReviewHearings7. You may be offered an opportunity to resignprior to the commencement of theinvestigation.

General Truths About Peer ReviewHearings8. You probably will reject the offer to resigninstead of hiring an experienced healthcareattorney to help you assess the situation.

General Truths About Peer ReviewHearings9. There are many options and alternativesavailable early in the process, but only anexperienced healthcare attorney will knowthem.

General Truths About Peer ReviewHearings9. Options & alternatives may include: (cont.) Agreement not to admit, treat, or performcertain procedures Taking a leave of absence (LOA) Assessment by independent organization

General Truths About Peer ReviewHearings9. Options & alternatives may include: (cont.) Agreement to undertake additional training. Resignation (prior to any proceedings beingcommenced). Note: Resignation while an investigation ispending is always bad.

General Truths About Peer ReviewHearings10. A “fair hearing” is not equal. The resources are stacked in favor of thehospital/administration. Peer review proceedings are very expensive (forall parties).

General Truths About Peer ReviewHearings10. A “fair hearing” is not equal. (cont.) There may be external motivations, other thanquality (especially in cases of tenuredprofessors senior physicians and minorities). The burden can be and may be placed on youto prove you are currently clinically skilled andcompetent.

General Truths About Peer ReviewHearings10. A “fair hearing” is not equal. (cont.) Economics & economic motivation– Proceedings initiated by your competitors.– Complaints made by your competitors. Note: Poliner tried this unsuccessfully.

General Truths About Peer ReviewHearings10. A “fair hearing” is not equal. (cont.) Economics & economic motivation (cont.)– You allegedly bring in too many cases (e.g., yourcases monopolize the operating room or primeO.R. time).– You bring in the wrong cases (e.g., too manyMedicaid, indigent).

General Truths About Peer ReviewHearings10. A “fair hearing” is not equal. (cont.) Economics & economic motivation (cont.)– One medical group is allowed to control an entiredepartment (in absence of an exclusive contract).– You are an “overutilizer” (you use too manyresources, overtime fo

Peer Review - Federal Law (cont.) Adversarial peer review must be conducted in accordance with the medical staff bylaws, rules and regulations and policies. HCQIA affords immunity from suit and from monetary damages if due process is provided. Poliner v. Texas Health System, 537 F.3d 368 (5th Cir. 2008). 33m judgment for physician

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