Medical Staff Challenges for Counsel: Latest...

Medical Staff Challenges for Counsel:

Latest Developments Best Practices for Addressing Peer Review, Medical Staff Bylaws,

Hospital Board Governance, and Other Complex Issues

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WEDNESDAY, NOVEMBER 7, 2012

Presenting a live 90-minute webinar with interactive Q&A

Elizabeth A. (Libby) Snelson, Esq., Legal Counsel for the Medical Staff, St. Paul, Minn.

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Effective Peer Review raison

detre for MS, OPPE FPPE=peer review

State Law protections HCQIA

Address Conflicts of Interest

Our AMA encourages peer review of the performance of

hospital medical staff physicians, which is objective and supervised by physicians.

Membership on peer review committees and hearing

panels should be open to all physicians on the medical

staff and should not be restricted to those physicians

who have an exclusive contract with the hospital,

salaried physicians, or those on the faculty.” External Review

Administrative personnel serving on/attending peer review committee meetings

There is nothing in law or the medical staff bylaws that

mandates that administrative personnel be named to or

attend the meetings of medical staff peer review

committees. Where the administrative personnel have

the ability to influence a physician’s income or

employment status, their participation or involvement

could well amount to a conflict of interest, or the

appearance of such a conflict. Avoiding such a potential conflict would require the

administrative personnel to be recused regularly, causing

interference and delay in the committee’s work. More

crippling would be the chilling effect of the administrative personnel’s involvement in the committee. Not only

would committee members be loathe to candidly discuss

issues in their presence, but the fact that the

administrative personnel could be involved could

prevent some concerns from being brought to the

committee in the first place. The effectiveness of the

committee would be seriously jeopardized. Presumably that

is not the intent of administrative involvement.

Further, peer review information cannot be used for any purpose other than

peer review. Using peer review protected information

to adjust compensation or determine bonuses for, or hire, fire, pay, promote or

award an employee are not the purposes for which the

information was requested or obtained. As you know,

Oregon law clearly protects peer review committee

information: All findings and conclusions, interviews, reports, studies,

communications and statements procured by or

furnished to the peer review committee in connection with a peer review are confidential

pursuant to ORS 192.501 (Public records conditionally exempt from disclosure) to

192.505 (Exempt and nonexempt public record to be separated) and 192.690

(Exceptions to ORS 192.610 to 192.690) and all data is privileged pursuant to ORS 41.675 (Inadmissibility of

certain data provided to peer review body of health care providers and health care

groups). ORS 441.055 Confidential, privileged information cannot be

repurposed without legal ramifications. 2. Information sharing between hospital as

employer and medical staff as peer reviewer

I understand that the hospital does not share information with the medical staff as to why it has fired a physician

medical staff member. The employment relationship

certainly differs, and there is no requirement of which I am

aware for the hospital to do so. Performance standards

for employees may be higher than those of the medical

staff, or address issues such as productivity or duties other

than clinical care, including marketing the hospital, that

are not within the medical staff’s purview.

Data Bank reporting issues actually bring the issue into

clearer view. If the hospital exercises its right to fire an at

will employee who is a member of the medical staff,

that firing will not be reportable. The Data Bank

requires reporting of certain peer review actions, and the hospital is not a peer review

body taking action again membership or privileges based on competence or

professional conduct after hearing rights have been

made available. Nor should the hospital be in

a position of taking action against a member or privileges holder for

professional competence or conduct reasons that are not

known to the medical staff, as any and all issues involving professional competence or conduct are the province of

the medical staff organization. There should be no quality of care information

that the hospital needs to provide to the medical staff about a hospital employed

physician, as the medical staff peer review structure should have all information, reports,

or concerns on competence or conduct already. Any

professional competence or conduct issue regarding any

privileges holder is subject to OPPE, consistent with the

medical staff bylaws and Joint Commission requirements. If there is a separate conduit for

concerns and reports of professional conduct and

competence to the hospital administrative personnel

rather than to the medical staff peer review system, the hospital is placing itself and the entire medical staff peer

review structure in real jeopardy of exposing quality data to discovery in litigation

for malpractice and other forms of negligence.

Abuse of peer review

HCQIA Summary Suspension Limited

Integrate Wellness Throughout

Negotiated Medical Staff Bylaws

Establish order of subrogation-MSB,RR, Policy Integrated documents-applications and attestation forms should be consistent

with medical staff bylaws. Training leaders/annual

Self governance/effective structure issues NO compacts, “physician advisory council” “leadership council”

Ready for Employed MDs, Hospitalists

Employed/unemployed distinctions Admitting privileges

Elective positions voting

Built-in Code of Conduct Disruptive vs “culture of safety

Dueling codes of conduct

Active Hospital Board

Relationship Medical staff membership

Officers Selected by ms

Trusted Representative

Excellent resource for board members CoP

Conflicts of Interest

Independent Medical Staff Counsel

Msb not intuitive Mention/ make slide of my Bylaws database

Appeal to in house counsel use phoebe example

Flexible Emergency Call Solutions

EMTALA 101 Specialty based Compensatory

Responsive to change in community need and resources

Working Conflict Management TJC reqs

Watch out for lopsidedness

Medical Staff Best Practices

Elizabeth Snelson Legal Counsel For the

Medical Staff PLLC

Key Issues for Today’s Medical Staffs

Effective Peer Review Negotiated Medical Staff Bylaws Ready for Employed MDs Built-in Code of Conduct Active Hospital Board Relationship Independent Medical Staff Counsel Flexible Emergency Call Solutions Working Conflict Management

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Best Practices for

Effective Peer Review

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Best Practices for Effective Peer Review

Maximize State Law

Protections

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Immunity Confidentiality

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Immunity “The members of a medical staff committee who conduct a retrospective medical review have absolute immunity from civil liability for the following: (1) Communications made in committee meetings. (2) Reports and recommendations made by the committee arising from deliberations by the committee to the governing board of the hospital or another duly authorized medical staff committee.”

IC 16-21-2-8

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Confidentiality

All findings and conclusions, interviews, reports, studies, communications and statements procured by or furnished to the peer review committee in connection with a peer review are confidential …

ORS 441.055

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Meet HCQIA

Notice & Hearing Standards

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Action notice The physician is to be given notice stating (i). That a professional review action has been proposed to be taken against the physician; (ii). Reasons for the proposed action; (i). That the physician has the right to request a hearing on the proposed action; (ii). Any time limit (of not less than 30 days) within which to request such a hearing, and a summary of rights in the hearing. Hearing notice If a hearing is requested, the physician must be given notice stating a. The place, time & date of the hearing, which date shall not be less than 30 days after the date of the notice; and b. A list of the witnesses (if any) expected to testify at the hearing on the part of the professional review body. Hearing body If a hearing is requested, the hearing shall be held (as determined by the hospital) i. Before an arbitrator mutually acceptable to the physician and the hospital; ii. Before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved; or iii. Before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician

involved.

Hearing rights In the hearing, the physician involved has the right i. To representation by an attorney or other person of the physician's choice, ii. To have a record made of the proceeding, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof, iii. To call, examine and cross-examine witnesses, iv. To present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and v. To submit a written statement at the close of the hearing. Hearing completion Upon completion of the hearing, the physician has the right i. To receive the written recommendation of the hearing body, including a statement of the basis for the recommendation, and ii. To receive the written decision of the hospital,

including a statement of the basis for the decision.

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COMMON OMISSIONS

Hearing body …Before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved.

Hearing rights In the hearing, the physician involved has the right i. To representation by an attorney or other person of the

physician's choice, ii. To submit a written statement at the close of the hearing.

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Minimize Conflicts

of Interest

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Screen Financial Affiliations With competitors With hospital

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CORRECTIVE ACTION

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Summary Suspension

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Summary Suspension

to prevent imminent danger to health only

imposed by clinicians only

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Screen For Wellness. Repeat. Repeat. Repeat. Repeat. Repeat.

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Best Practices for


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Best Practices for Negotiated Medical Staff Bylaws

Negotiated

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Best Practices for

Negotiated Medical Staff Bylaws Current Compliance?

Check these Revisions Joint Commission MS

01.01.01—2011

Medicare Conditions of

Participation - 2012

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Best Practices for


No “Organization and Functions” Manual

No “Fair Hearing Plan”

No “Credentialing Manual”

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NO “COMPACTS” NO “PHYSICIAN ADVISORY GROUP” NO “SYSTEM LEADERSHIP COUNCIL” NO GIMMICKS

Best Practices for


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Best Practices for


Medical Staff Documents Inventory 1. Bylaws 2. Rules & Regulations 3. Medical Staff Policy

Establish order of subrogation

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Best Practices for


Medical Staff Documents Adjuncts 1. Applications 2. Attestations 3. Agreements Coordinate with Medical Staff Documents

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Ready for Employed Physicians

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Best Practices


Uniform Qualifications Uniform Standards Eligible for Medical Staff Office Eligible to Vote Hearing/Appeals for Reportable Actions Job Protection against Retaliation

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Best Practices


Uniform Qualifications Uniform Standards Eligible for Medical Staff Office Eligible to Vote Hearing/Appeals for Reportable Actions Job Protection against Retaliation

MEDICAL STAFF BYLAWS

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Built-in Code of Conduct

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Best Practices Built-in Code of Conduct

RECURRING PROBLEMS in CODES “Hospital Operations” “In or Outside of the Hospital” Defining Disruptive Behavior •“lying” •“immorality” •“actions that add to the work of the staff”

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Best Practices

Built–in Code of Conduct

Current Compliance? Check these Revisions

Joint Commission

LD 03.01.01 July 1, 2012

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Best Practices


“The Joint Commission decided to use the term disruptive behavior because it was commonly used in the literature and recognized by most individuals in the workplace. However, Joint Commission staff have since learned that the term disruptive behavior is not viewed favorably by some health care practitioners and is even considered ambiguous for some audiences. For example, some physicians have expressed that strong advocacy for improvements in patient care can be characterized as disruptive behavior. Also, the phrase disruptive behavior may be used in the context of a care environment that has become temporarily unsettled by the behavior of a patient, a resident, or an individual served.”

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Best Practices


•Convert to “Climate of Safety” Eliminate

“Disruptive”

•Coordinate with Corrective

Action

Build In To

Bylaws

•Medical Staff members under

Medical Staff Bylaws

Eliminate

Dueling Codes

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Best Practices Built–in Code of Conduct

Screen For Wellness. Repeat. Repeat. Repeat. Repeat. Repeat.

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Flexible Emergency Call Solutions

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Best Practices Flexible Emergency Call Solutions

Hospitals must maintain a list of physicians, including specialists and sub-specialists, who are on call to evaluate and treat patients in the emergency department.

HOWEVER… EMTALA does not

require physicians to serve on call.

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Best Practices Flexible Emergency Call Solutions

SOLVING THE HOSPITAL‘S EMTALA OBLIGATIONS

Voluntary –Entire Staff Voluntary-Departmental Compensated Coverage Contracted Coverage Employed Coverage Coverage Category Mandatory Coverage Mandatory Coverage for Some Categories Department-Determined Coverage Years of Service/Age Exemption from Coverage Combination of One or More of The Above or Others

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Active Hospital Board Relationship

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Best Practices Active Hospital Board Relationship

Standard for the Industry Element of Performance 8. The governing body provides

the organized medical staff with the opportunity to participate in governance.

Element of Performance 9. The governing body provides

the organized medical staff with the opportunity to be represented at governing body meetings (through attendance and voice) by one or more of its members, as selected by the organized medical staff.

Element of Performance 10. Organized medical staff

members are eligible for full membership in the hospital’s governance, unless legally prohibited.

JC Standard LD 01.03.01

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Maintain Independent Majority

Apply Conflict of Interest Policy

Single Policy

Uniformly Applied

Medical Staff Selects

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Condition of Participation

Mandate Each Board include 1 Medical Staff

Member

WITHDRAWN

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Best Practices Independent Medical Staff Counsel

The medical staff’s right of self-governance includes “the ability to retain and be represented by independent legal counsel at the expense of the medical staff.”

California Business &

Professions Code §2282.5(a)(5)

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Best Practices


BYLAWS

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Working Conflict Management

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Best Practices Working Conflict Management

MS//MEC CONFLICT MS// BOARD CONFLICT

“The organized medical staff has a process which is implemented to manage conflict between the medical staff and the medical executive committee on issues including, but not limited to, proposals to adopt a rule, regulation, or policy or an amendment thereto. …”

Joint Commission standard MS 01.01.01, Element of Performance 10

“Senior managers and leaders of the organized medical staff work with the governing body to develop an ongoing process for managing conflict among leadership groups.” Joint Commission standard LD.02.04.01, Element of Performance 1

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Best Practices Working Conflict Management

Place process in medical staff bylaws

No Board Default

Cannot supplant mandatory process of bylaws adoption & approval

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Elizabeth A. Snelson

Legal Counsel for the Medical Staff PLLC

[email protected]

Medical Staff Challenges for Counsel: Latest...

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