[MEDICAL STAFF] LIFECYCLE

OF A [HOSPITAL EMPLOYED]

PHYSICIAN

Nick Healey, Dray, Dyekman, Reed & Healey, PC

Health care integration is being driven

by reform, economics and culture.

The Hospital Side:

Transformation of Medicare/Medicaid and

third party payors from "passive payers" to

"active purchasers".

Decline in reimbursement and perceived need

to control providers’ practice to achieve

efficiencies and conserve scarce resources.

Uncertainty about the future.

Health care integration is being driven

by reform, economics and culture.

The Provider Side:

Rising overhead costs (such as

EHR's)/(perceived) declining reimbursement

Lifestyle desires (decline of the "work

devotion ideal")

Concern about the future/desire for security

The result (in Wyoming) is more

hospital-physician integration.

Traditional Wyoming model: Hospital + independent medical staff.

This is reflected in the Medicare COP’s, Wyoming’s licensing regulations and Joint Commission standards.

Also reflected in Wyoming ‘peer review’ and ‘PSRO’ statutes.

But in response to reform and economics, hospitals are(again) absorbing primary care practices, and increasingly subspecialists.

The result is a blurred line between the medical staff and hospital employees.

Wyoming's primary integration models

are straightforward

Most Wyoming hospital-physician integration efforts

are either:

Hospital-employed physicians;

Hospital directly employs the physicians, all staff, to provide

services in either in the hospital or in hospital-owned space.

Hospital-sponsored medical groups.

Physicians and staff are employed by a wholly-owned

subsidiary (often an LLC) of the hospital, but don’t own the

group.

HR and MS are not the same thing.

Wyoming’s licensing regulations, Joint Commission standards and COP’s still require the hospital to have a medical staff that fulfills certain functions.

In most Wyoming hospitals, there are still independent physicians as well as hospital-employed physicians.

Different legal requirements apply to HR and medical staff.

Hospital administration may not appreciate this distinction.

Critical areas

Information flows between HR and Medical Staff

Particularly in applications and processing initial

employment

Disciplinary issues

Termination procedures

Information flows

General principle: Information generated by

medical staff processes is confidential and

privileged and cannot be shared with other areas

of the hospital.

Wyoming’s Peer Review Statute

Wyo. Stat. §35-2-609(d): "Reports, findings,

proceedings and data" of "medical staff

committees” which relate to:

supervision, discipline, admission, privileges

or control of members of the hospital's

medical staff, evaluation and review of

medical care, utilization of the hospital

facilities or professional training…

The Credentialing Process is a Medical

Staff process

Medical Staff applications, and credentialing,

generally take place under the auspices of a

medical staff committee.

Joint Commission Standard

Medicare COP

Wyoming licensing regulation

Information generated in credentialing

is confidential and privileged

Information gathered by the medical staff in the

process of evaluating a candidate for admission is

therefore subject to these statutes.

Information that can be obtained from original

sources is not confidential simply because its been

reported to a medical staff committee, but it can’t

be obtained from the committee.

How would this come up?

The CEO comes to you and says, "We're hiring Dr. B.

Real. He'll be applying for medical staff membership

and clinical privileges. HR is processing him too.”

60 days go by.

You get a panicked call from the CEO, "Dr. Real has

been hired and processed by HR. He has a full day of

surgeries scheduled on Monday, but he says he hasn't

been approved for medical staff membership or

privileges!" [It's Friday, and you haven't seen an

application]

Do you…

Call HR to get as much information as they can give

you, or

Tell the CEO its not your problem?

Call HR!

HR can disclose information gathered in the HR

process for use in the Medical Staff Office.

Best practice: The hospital's (or hospital-sponsored

medical group's) physician employment agreements

should explicitly authorize this information-sharing.

Or, if a hospital-sponsored medical group, have an

information sharing agreement with the hospital

allowing this information to flow from the group to the

hospital.

The shoe is on the other foot…

You got an application from Dr. Real, and processed

it and he was appointed to the medical staff and

received clinical privileges.

BUT...the CEO calls on Friday and says, "Dr. Real has

a full day of patients scheduled on Monday and we

don't have him processed through HR!"

Do you…

Provide HR with the information Dr. Real submitted

in his medical staff application; or

Politely tell the CEO that state law prohibits you

from disclosing or using information gathered in the

medical staff credentialing process for other

purposes, even other hospital purposes?

Unfortunately,

The information can only flow one way.

Under Wyoming's 'peer review' statute information

gathered on behalf of a medical staff committee (the

credentialing committee) is confidential and privileged

and should not be disclosed outside that process.

Plus, the 'peer review' statute is part of Wyoming's

Hospital Records Information Act, and it's a

misdemeanor to violate the WHRIA.

If HR checks his references, do you still

have to do primary source verification?

You should.

The Joint Commission standard requires primary source verification through the medical staff process.

There’s no explicit exception for performing some portions of the medical staff credentialing process through another hospital process.

There are different Joint Commission standards for each process; the JC will want to see evidence in your file that you’ve conducted this verification according to the medical staff process.

Disciplinary actions

Dr. Real begins practice. All goes well for months, months turn into years....

But then you get a call from HR - "We think that Dr. Real has violated his employment agreement by breaching the Code of Conduct. We need copies of all the complaints that you've received about him to determine if we should terminate his employment.”

Do you –

Give HR copies of all the complaints that the MSO has received about Dr. Real?

Depends how your complaint system

works

If the complaints were received in the course of a

medical staff investigation, and don’t exist anywhere

else, then they are subject to the ‘peer review’ statutes

protections (and Wyoming’s professional standard

review organization’ statute)

But, if the complaints were made through administrative

channels, and simply provided to the medical staff

office, they may not be confidential and privileged.

Original source Information exception – simply because it is

reported to the medical staff office does not make it subject

to the statute’s protections.

Termination procedures

The complaints continue.

The hospital wants to terminate Dr. Real's

employment, and gives Dr. Real 90 days notice of

termination.

Dr. Real writes you a letter asking for a hearing

under the Medical Staff Bylaws.

Is he:

Entitled to a hearing

Under the Medical Staff Bylaws?

It depends!

It's unlikely that he's entitled to a hearing under the

Medical Staff Bylaws, but not impossible.

Usually Bylaws exclude “termination of hospital

employment” as corrective action triggering a hearing.

But check the Bylaws, because they may be unclear, or

may state that a hearing is required in that situation.

The Medical Staff may have inserted it in past revisions.

If this is in your Bylaws, it’s probably something you want to

remove.

However…

Dr. Real may be entitled to a pre-termination hearing under the Hospital's employment policies, or his contract (if he negotiated it).

If the hospital is a governmental entity, under certain circumstances government employees (even physicians) can have a property interest in continued employment that can't be taken away without a hearing, particularly if public statements have been that injure his/her reputation.

But those hearing rights don’t arise under the Medical Staff Bylaws.

Termination procedures

Dr. Real’s employment is terminated on Friday, but

has a surgery scheduled on Monday.

Monday morning, the Director of Surgical Services

calls and asks, “Does he still have clinical privileges

to operate?”

Monday afternoon, the clinic manager of Dr. Real’s

hospital clinic calls and asks if Dr. Real can still see

patients in his clinic.

Can he do both, either, or none of these?

It depends!

Surgery: Check the Bylaws and/or his contract

Often, the Medical Staff Bylaws and/or the physician’s

contract will provide that termination of hospital

employment automatically terminates the physician’s

medical staff membership and/or clinical privileges.

If not, Dr. Real’s clinical privileges are probably still

intact and he probably can perform the surgery.

Medical staff membership and employment are not

automatically co-extensive unless they are linked by contract

or the Bylaws.

It depends!

Clinic: Where is it?

Owned and operated by a hospital-sponsored medical

group? Dr. Real can’t use it.

Owned by the hospital, but not licensed as an

outpatient department: Dr. Real probably can’t use it.

Owned by the hospital, licensed as a hospital

outpatient department (ie. Wound care clinic): Dr. Real

may be able to use it if he retains appropriate clinical

privileges.

A twist…

Dr. Real’s hospital employment was terminated for

poor clinical performance.

The CEO calls and asks, “Do we have to file a

report with the NPDB?”

National Practitioner Data Bank

No, adverse employment action by itself is usually not an “adverse action” that has to be reported to the NPDB.

NPDB Guidebook, p. F-9

Hospital-employed physician’s employment and clinical privileges terminated under Hospital’s “employment termination procedure”. Hospital also had a peer review process, but that wasn’t used. Hospital filed an NPDB report, which physician disputed.

The report was inappropriate because it did not result from peer review process.

But do you have to report to the

Wyoming Board of Medicine?

It depends!

Wyoming’s Medical Practice Act (Wyo. Stat 33-26-409(a)) requires a “health care entity” to report any action it takes against a licensee on the basis that the licensee is impaired, or has engaged in conduct that are grounds for disciplinary action under the Act.

“Health care entity” includes a hospital or a clinic, that follows a “peer review process for the purpose of furthering quality health care.”

Wyoming Board of Medicine Reporting

There’s no requirement that the action be the

product of the peer review process to be

reportable, unlike the NPDB.

If Dr. Real’s “poor clinical performance” conduct

below the standard of care, it may be reportable.

Likewise, if Dr. Real was terminated because he was

impaired, it may be reportable.

Wyoming Board of Medicine Reporting

What if Dr. Real was employed by a hospital-

sponsored medical group?

If the group has a peer review process, you probably

have to report.

The Wyoming Board of Medicine accepts that without a

peer review process, you don’t fall within the statute,

but they don’t like it.

Further integration will likely result in the Board

changing the Act to require more reporting of

employment terminations.

Reference requests

Dr. Real’s medical staff membership and clinical

privileges terminate with his hospital employment.

The Medical Staff Office gets a reference request from

another hospital for Dr. Real, asking specifically for

clinical performance information, and any other

information in your possession you believe relevant.

Included is a release from Dr. Real, authorizing you to

disclose any and all information in his medical staff file

requested by another hospital in connection with a

medical staff application.

Reference requests

No action was taken against his medical staff

membership or clinical privileges because they

terminated automatically when his hospital

employment terminated.

His HR file is replete with documentation of poor

clinical performance.

Do you provide that?

Probably not.

HR and Medical Staff are separate.

If the hospital’s request, and Dr. Real’s authorization, was directed to the Medical Staff Office, and was for information in his medical staff file, it’s safer to read that narrowly.

Your response should be specific: “We’ve reviewed our medical staff file and found no instances of corrective action on the basis of poor clinical performance.”

If the request was to the hospital generally, you have a judgment to make.

But also consider that his personnel (HR) file may also be protected by the Public Records Act.

Questions? Comments?

Nick Healey

Nick.healey@draylaw.com

307-634-8891