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Medical Staff Challenges for Counsel:
Latest Developments Best Practices for Addressing Peer Review, Medical Staff Bylaws,
Hospital Board Governance, and Other Complex Issues
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
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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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FOR LIVE EVENT ONLY
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
5
Best Practices for
Effective Peer Review
6
Best Practices for Effective Peer Review
Maximize State Law
Protections
7
Best Practices for Effective Peer Review
Immunity Confidentiality
8
Best Practices for Effective Peer Review
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
9
Best Practices for Effective Peer Review
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
10
Best Practices for Effective Peer Review
Meet HCQIA
Notice & Hearing Standards
11
Best Practices for Effective Peer Review
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.
12
Best Practices for Effective Peer Review
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.
13
Best Practices for Effective Peer Review
Minimize Conflicts
of Interest
14
Best Practices for Effective Peer Review
Screen Financial Affiliations With competitors With hospital
15
Best Practices for Effective Peer Review
CORRECTIVE ACTION
16
Best Practices for Effective Peer Review
Summary Suspension
17
Best Practices for Effective Peer Review
Summary Suspension
to prevent imminent danger to health only
imposed by clinicians only
18
Best Practices for Effective Peer Review
Screen For Wellness. Repeat. Repeat. Repeat. Repeat. Repeat.
19
Best Practices for Effective Peer Review
20
Best Practices for
Negotiated Medical Staff Bylaws
21
Best Practices for Negotiated Medical Staff Bylaws
Negotiated
22
Best Practices for
Negotiated Medical Staff Bylaws Current Compliance?
Check these Revisions Joint Commission MS
01.01.01—2011
Medicare Conditions of
Participation - 2012
23
Best Practices for
Negotiated Medical Staff Bylaws
No “Organization and Functions” Manual
No “Fair Hearing Plan”
No “Credentialing Manual”
24
NO “COMPACTS” NO “PHYSICIAN ADVISORY GROUP” NO “SYSTEM LEADERSHIP COUNCIL” NO GIMMICKS
Best Practices for
Negotiated Medical Staff Bylaws
25
Best Practices for
Negotiated Medical Staff Bylaws
Medical Staff Documents Inventory 1. Bylaws 2. Rules & Regulations 3. Medical Staff Policy
Establish order of subrogation
26
Best Practices for
Negotiated Medical Staff Bylaws
Medical Staff Documents Adjuncts 1. Applications 2. Attestations 3. Agreements Coordinate with Medical Staff Documents
27
Ready for Employed Physicians
28
Best Practices
Ready for Employed Physicians
Uniform Qualifications Uniform Standards Eligible for Medical Staff Office Eligible to Vote Hearing/Appeals for Reportable Actions Job Protection against Retaliation
29
Best Practices
Ready for Employed Physicians
Uniform Qualifications Uniform Standards Eligible for Medical Staff Office Eligible to Vote Hearing/Appeals for Reportable Actions Job Protection against Retaliation
MEDICAL STAFF BYLAWS
30
Built-in Code of Conduct
31
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”
32
Best Practices
Built–in Code of Conduct
Current Compliance? Check these Revisions
Joint Commission
LD 03.01.01 July 1, 2012
33
Best Practices
Built–in Code of Conduct
“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.”
34
35
Best Practices
Built–in Code of Conduct
•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
36
Best Practices Built–in Code of Conduct
Screen For Wellness. Repeat. Repeat. Repeat. Repeat. Repeat.
37
Flexible Emergency Call Solutions
38
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.
39
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
40
Active Hospital Board Relationship
41
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
42
Best Practices Active Hospital Board Relationship
Maintain Independent Majority
Apply Conflict of Interest Policy
Single Policy
Uniformly Applied
Medical Staff Selects
43
Best Practices Active Hospital Board Relationship
Condition of Participation
Mandate Each Board include 1 Medical Staff
Member
WITHDRAWN
44
Independent Medical Staff Counsel
45
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)
46
Best Practices
Independent Medical Staff Counsel
BYLAWS
47
Working Conflict Management
48
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
49
Best Practices Working Conflict Management
Place process in medical staff bylaws
No Board Default
Cannot supplant mandatory process of bylaws adoption & approval
50