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Although many medical staff leaders are simply grateful that any member of the medical staff is willing to serve on medical staff committees, good medical staff leaders try to appoint members to committees that will help the medical staff do its job effectively.
One of the key committees for many medical staffs is the peer review committee. This may either be a single committee for the entire medical staff whose members are appointed by the medical staff president, or several departmental committees whose members are appointed by either the medical staff president or department chair. When appointing committee members, leaders are typically guided by two main attributes: clinical credibility and willingness to serve. Both are important. Without clinical credibility, the findings of the peer review committee might be ill-received by the medical staff members it is evaluating. Without willingness to serve, committees face delays in case reviews because of inadequate attendance.
However, given the importance of peer review in assuring quality of patient care, there are three additional attributes for selecting peer review committee members that are also quite important:
Performance improvement focus
Respect for committee procedures and policies
Self-awareness for conflict of interest
Performance improvement focus means that although peer review will identify instances where physician care was less than appropriate, the primary focus is to help the physician improve the care in the future rather than determining the punishment for the past. This does not mean that peer review cannot lead to corrective action when warranted. But finding physicians for your committee whose first goal is to help physicians improve will create a receptive culture for the findings of the committee. In addition, it is easier for physicians to make determinations that the care is less than appropriate when they know that the outcome of that finding will be focused on improvement, not punishment.
Respect for committee policies and procedures means that the member is committed to perform his or her duties in the way that the medical staff has designed peer review. This is evidenced by:
Abiding by timelines for performing case reviews
Cooperating with the support staff
Being prepared to discuss cases
Maintaining confidentiality of discussions outside of the meeting
Following conflict of interest procedures
Self-awareness of conflict of interest goes beyond merely meeting the policies for conflict of interest; it means being aware of when potential conflicts may exist. Unfortunately, in many peer review committees, some members serve on the committee to preserve a group’s interests. When this occurs, the credibility of the committee’s findings is often suspect. It is the ethical obligation of the individual with a potential conflict to disclose that concern to the deliberative body. It is the responsibility of the deliberative body to determine if the conflict is substantial enough to preclude the individual's involvement. Having a good self-awareness of potential conflicts does not mean the individual must recluse him or herself from the case; it means giving the deliberative body the opportunity to assure that potential conflicts are handled well.
Finding members to serve on peer review committees can be a difficult task in this era where fewer physicians seem to have the time available to serve. As in any job search, finding the ideal person to meet the job description is not usually realistic. Still, keeping in mind the aforementioned attributes should help create a peer review committee that has a greater likelihood of success because its members already bring to the table most, if not all, of the attributes we desire for this important function.
A new study found that pay gaps between men and women are greater at physician practices that also have greater proportions of male physicians.
The study, from The BMJ, looked at salary data of 18,800 U.S. physicians from nearly 9,900 physician practices between 2014 and 2018.
Adjustments to salary were made based on physician specialty, years of experience, hours worked, measures of clinical workload, practice type, and geography.
“Outside of healthcare, increased workplace sex diversity, a reduction in occupational segregation, and an increase in the proportion of female managers has been associated with reduced sex differences in income and smaller sex-based wage gaps,” write the study authors.
The study results show that the same could be true in healthcare as well.
Among non-surgical specialists (about 11,500), the difference in annual income was $36,600 in practices with 50% or less of male physicians compared with $91,700 for practices with at least 90% of male physicians.
Similar findings were observed among surgical specialists, with a difference in annual income of $46,500 for practices with 50% or less of male physicians compared with $149,00 for practices with at least 90% of male physicians.
“If causal, our findings suggest that for specialist physicians, group composition could be an important determinant of differences in income between male and female physicians,” write the study authors.
Failure to craft clear, targeted, and meaningful questions is one of the top pitfalls in credentialing. Although it’s difficult to pose questions that cover any and all conceivable disclosure situations, organizations should be as thorough as possible.
For example, asking if an applicant has ever been the subject of “formal disciplinary action” at any healthcare institution is rather vague.
The applicant may not consider certain significant actions to be formal disciplinary action, and, therefore, based on the question’s wording, he or she may not disclose pertinent information.
Perhaps this applicant was under investigation or had numerous incident reports filed against him or her that were handled at the department level through collegial intervention.
Because these actions are not considered formal corrective or disciplinary action through the medical executive committee, the applicant may not feel that he or she needs to disclose the incidents.
The applicant would be much likelier to share this information, however, if the question instead reads as follows:
“Have you ever been the subject of current, former, or pending complaints; the subject of a current or pending investigation or formal review; or placed on probation, suspended, reprimanded, or received any other type of disciplinary or corrective action?”
Education and collaboration are the two words to keep in mind when MSPs work with outside entities. Successful MSPs foster strong relationships by continually educating themselves on requirements for their offices and how their office communicates with regulatory agencies.
Many MSPs are often the liaison during a survey, providing welcome documents, escorting the surveyor around the facility, and sitting in on formal audits and interviews.
MSPs also provide any follow-up on issues or questions posed by the surveyor. This is where the MSP can shine as an important part of the administrative leadership.
MSPs need to know the regulatory standards that impact the credentialing and privileging process at their organizations. The best way to meet regulatory standards is to make them your regular practice.
Stay abreast of changes to regulations or requirements and innovations in your field. This will keep your organization in compliance, improve the quality of your credentialing and privileging process, and improve your ability to make recommendations for changes when needed.
Too many facilities spend a lot of time, resources, and energy to “get ready for a survey,” when in all reality they should always be ready. Consider the following tips to continuously prepare for a survey:
Familiarize yourself with the surveyor. Obtain surveyor information through the accrediting body. Also send a request for information about surveyors to your MSP colleagues via e-mail or listservs.
Strive to ensure that your files are in order at all times. However, realistically, some files may be in a state of transition (e.g., if you’re converting to a paperless process) or midcycle processing, which may affect some document filing. If you follow your processes and can clearly explain the situation, the surveyor will understand.
Ensure that your office is organized and professional looking. First impressions count, and this could influence the confidence the surveyor will have in your skills.
When a surveyor visits your office, approach the survey as an opportunity to learn. Be open to recommendations and show interest in what the surveyor is conveying.
Offer to act as a liaison between the surveyor and administration. This ensures that you find out about any potential issues or concerns before they get out of hand. As liaison, you will also expand your knowledge base and show value to your administration at the same time.
Additionally, if you are in the middle of a large project (e.g., converting paper files into electronic files), be prepared to address that and your plans to continue to adhere to your bylaws, rules and regulations, and policies and procedures as you move through your process.
In some form or another, almost every practitioner has either heard of or been involved in a privileging criteria dispute. Fortunately, there are ways to resolve the situation—or to avoid it altogether.
Adhere to two important principles when creating criteria that could potentially be disputed. First, ensure that all the concerned voices participate in the process.
Any specialties that have a stake in the establishment of a particular privilege must have a forum in which to put forth their perspective, as well as any supporting data or documentation that may help them establish or amend criteria for a privilege.
Most organizations encourage participation in one of two ways. In the first approach, representation from each involved specialty is a formal part of the criteria development group.
In the second approach, each specialty submits information to such a group either in writing or in person, sometimes both. To quell anxieties, it is usually better to allow an in-person presentation. Doing so gives groups the greatest assurance that they have been heard.
The second principle is that the decision should be mediated through a non-biased source. If a criteria committee includes representation from all specialties, then such representation should be equal and the majority of the committee should be practitioners in specialties that do not have a direct interest in this resolution.
If the committee does not have representation from the specialties, then all members should be free from direct interest, and the presentation opportunity should be equal for all the involved parties. Your organization’s policies and procedures should include language to this effect.
In addition, clinical privilege criteria can be very technical, and specialty training in a given procedure area may vary by provider.
Therefore, most organizations benefit from having the involved specialties equally represented and directly participating in the privilege criteria development group.
In short, when it comes to privileging criteria disputes and their resolution, remember that economics and politics must be excluded from such deliberations to the extent possible. Final decisions should always reflect the group’s sense of what will be best for the patient, rather than what is best for individual practitioners or for the organization.
The new guidance covers a number of areas related to how employees are to be paid.
Richard L. Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina, points out one notable part of the guidance covers how to track time if a nonexempt employee has to spend part of a workday to deal with children’s remote learning requirements.
The guidance states an employer can allow employees the flexibility to take time out of the normal workday to work with children whose schools are closed without having to pay them for that time.
The guidance explains that under normal conditions, all time between the performance of the first and last principal activities of a workday is compensable. But the guidance says the DOL recognized applying that practice to teleworking arrangements “would discourage needed flexibility during the COVID-19 emergency.” Therefore, the FFCRA rulemaking allows employers offering flexible hours to not count as hours worked all the time between an employee’s first and last principal activities during the workday.
On another topic, the guidance says exempt employees can perform nonexempt duties during the COVID-19 emergency without losing their exempt status. The guidance states that “during the period of a public health emergency declared by a Federal, State, or local authority with respect to COVID-19, otherwise-exempt employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption.” Such employees won’t lose the exemption as long as they continue to be paid on a salary basis of at least $684 a week.
Another question many employers and employees have had since the COVID-19 outbreaks began relates to whether essential workers have to be paid extra because of the risks they incur at work.
“While I didn’t think there was much controversy about this, the guidance confirms that the FLSA does not require any sort of hazard pay for workers exposed to COVID-19 risks,” Rainey says.
How the pandemic affects FMLA coverage is another area that’s been in question.
The new guidance sheds some light on that and other questions. For example, Rainey says that at least for this year, certain telemedicine visits will count as in-person visits for the purpose of determining if an employee has an FMLA serious health condition.
The guidance also covers such FMLA-related topics as whether an employer must grant leave to an employee who is sick or caring for a sick family member and whether employees can stay home on FMLA leave to avoid getting COVID-19.
The guidance says sick employees or those caring for sick family members are, under certain circumstances, entitled to FMLA leave. The guidance goes on to state that workers who are ill with COVID-19 or have family members sick with the virus are urged to stay home to minimize spread. “Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees,” the guidance says.
As for whether employees can stay home to avoid getting COVID-19, the guidance says that leave taken by an individual for the purpose of avoiding exposure to the virus isn’t protected under the FMLA. Also, the Act doesn’t apply to employees who take time off to care for healthy children out of school or day care.
The FFCRA requires private employers with fewer than 500 employees to provide paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave if the leave requirements would jeopardize their viability.
The law provides that employees of covered employers are eligible for up to 80 hours of paid sick leave at their regular rate of pay when they are unable to work because they are quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
The law also provides for up to 80 hours of paid sick leave at two-thirds the employee’s regular rate because she is unable to work because of a need to care for an individual subject to quarantine or for a child whose school or daycare provider is closed or unavailable because of COVID-19 and/or the employee is experiencing a substantially similar condition.
The FFCRA also provides for an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee who has been employed for at least 30 calendar days is unable to work because of a need to care for a child whose school or care provider is closed or unavailable for reasons related to COVID-19.
Rainey says when the law was first passed, his clients had numerous questions about how to implement emergency paid sick leave and extended FMLA. The initial regulations were helpful, but the new guidance provides more answers.
“I anticipate that depending on what happens with schools across the country there will be more questions regarding extended FMLA due to lack of child care,” Rainey says.
Credentialing and privileging regulations for advanced practice professionals (APP) are currently a loose patchwork of federal and state statutes. Given this variability, today’s discussion centers on strategies that MSPs and medical staff leaders can use to identify and apply relevant laws to their APP vetting processes.
The starting point is at the state level, where the applicable practice act specifies what an APP can or cannot do and sets forth any restrictions on where the APP can practice. In some states, statutory provisions will specifically permit hospitals and other health facilities to credential and privilege certain categories of APPs.
In general, state laws addressing credentialing and privileging of APPs tend to defer to an institution's governing body and medical staff to regulate APPs at the institution. Therefore, it becomes critical to have medical staff bylaws that adequately address the role of APPs and contemplate the various issues that may arise with respect to APPs' practice.
At the federal level, the Medicare Conditions of Participation acknowledge that a Medicare-participating hospital's "non-physician practitioners" may be members of the hospital's medical staff, as long as their membership is consistent with state law. So even for purpose of federal Medicare regulations, state law is important in establishing what an APP can and cannot do from a medical staff perspective.
Relatedly, note that The Joint Commission Hospital Accreditation Standards, which many hospitals follow in order to participate in Medicare, provide that all "licensed independent practitioners" (i.e., any individual who may provide services without direction or supervision) must be credentialed and privileged through a hospital's organized medical staff.
The standards go on to call out, in particular, physician assistants and advanced practice nurses who are not licensed independent practitioners as eligible for privileging through the medical staff process or a "procedure that is equivalent to the medical staff" and that meets the same criteria to which medical staffs are subject.
The National Practitioner Data Bank (NPDB) is another area of federal regulation that is relevant to credentialing and privileging of APPs. The NPDB is the federal repository that collects information that may reflect poorly on a provider's competence and quality of care, such as malpractice awards and adverse peer review actions. In the medical staff context, hospitals and other providers must report to the NPDB adverse peer review actions against physicians, but they have discretion whether to report adverse peer review actions against APPs.
However, hospitals must query, or request, information regarding APPs from the NPDB during the credentialing process; there is no discretion.
Thus, as pertains to APPs, reporting adverse peer review actions to the NPDB is optional, but querying that same information is not. With respect to reporting, providers should bear in mind that even though federal law does not mandate reporting of adverse peer review actions to the NPDB, state law may require reporting these actions to a state agency or database.
If the burden of medical staff leadership was shared equally by all medical staff members, each member would spend a reasonable amount of time on their leadership duties. As a result, medical staff members would be less likely to consider these duties an additional burden worthy of monetary compensation. But the reality is that a handful of the members do the bulk of the work while the remaining wouldn’t touch leadership responsibilities with a 10-foot pole.
In the past, medical staff members gave their time more freely and without the expectation of being paid. However, in today’s economic environment, physicians are watching their salaries dwindle, and they resist giving their time and expertise away for free.
This trend begs several questions:
Should we pay medical staff leaders? More often than not, medical staffs are offering leaders some form of compensation. Some medical staffs are unable to get leaders on board unless they offer compensation in the form of a yearly salary, stipend, or hourly rate. So, if you’re not offering compensation but want to keep experienced leaders on board, consider it seriously.
Which medical staff leaders should we pay? The answer to this question varies widely from hospital to hospital. Some pay only the president of the medical staff, some pay the president and department chairs, and some pay everyone on the medical executive committee. I suggest that you analyze the amount of time these individuals spend on their leadership duties to determine which positions warrant compensation.
How much should medical staff leaders be paid? The answer to this question also varies from hospital to hospital, and we see huge differences based on the size of the institution. Unfortunately, we can offer no magic numbers. It depends on the need to pay leaders, how much time leaders spend performing their duties, and how much the organization can afford. Most medical staff leaders know that the compensation they receive will not reimburse them fully for the time they spend on their leadership responsibilities, so for most institutions, payment is best approached as a token of appreciation.
Who should pay medical staff leaders? Historically, the hospital has been responsible for paying medical staff leaders because they perform the duties designated to them by the board. But some medical staffs feel that if the full payment comes from the hospital, the hospital will have the leaders in its pocket. As a result, more medical staffs are sharing the cost of paying leaders with the hospital, usually dipping into the monies generated from medical staff dues. Some medical staffs across the country are so opposed to the hospital reimbursing medical staff leadership (and a potential conflict of interest) that they fully fund the cost themselves.
In these economic times, we understand that it is difficult to find the monetary sources to fund these positions. Start thinking creatively – is there something else that the medical staff leader would value that could be used instead of a monetary award? How about reducing or eliminating unassigned call for certain medical staff? Medical staff leaders want to feel appreciated for the hard work that they do, so another reward might include public recognition of a leader’s efforts. Money is nice, but other forms of recognition may work as well, and in some cases, better.
Dealing with a disruptive physician is difficult enough when you have time to plan for an intervention and have others to help you. But, what can you do when you are confronted by a disruptive physician during a committee meeting?
First, we have to give up the idea that this issue is the chair’s problem. When a physician is disrupting a meeting by turning the agenda to his or her own purposes, the entire committee suffers. Rather than committee members waiting for the chair to fix the problem, it is necessary for members to support the chair’s efforts and work together to keep the unwanted behavior in check.
Typically, a physician becomes disruptive when the committee or its members advocate a position or action that does not fit the physician’s personal philosophies or goals. Many physicians have been able to get what they want through disorderly behavior, so they continue to display it. Individuals who are intimidated by the physician’s behavior and give in to it inadvertently reinforce it.
It is necessary to take the time to deal with the behavior in order to stop it. In all cases, it is important to speak in a calm voice, make eye contact, listen without interrupting, and keep emotions in check. It may be necessary to limit the time any one physician speaks to one or two minutes at a time. Here are some other steps committee chairs can try:
If the committee does not agree with the disruptive physician’s idea or position, point it out. Ask the disruptive physician if he or she believes everybody on the committee should go along with the idea or position even though they do not agree with it. If the physician says yes, ask if he or she would do the same if roles were reversed.
If the committee has time, principle-based negotiation may be effective. This approach is most appropriate when two individuals in a long-term working relationship are in conflict. Ask each person to talk about his or her own principles and uses those principles to find a common ground.
Acknowledge the disruptive physician’s position, repeat it back, and ask if you have said it correctly. Continue to ask for clarification until you have repeated it back correctly. Then ask others how they feel about that position or idea and if they could live with it. If they do not agree with the idea, see the first tip.
Point out to the physician that others on the committee are not in agreement with his/her ideas and ask the physician for a suggestion as to how his/her position might be communicated to medical staff leaders.
If the physician is truly offensive (name calling or threatening behavior), tell the physician that the behavior is unacceptable, and if it continues, you will ask him or her to leave and you will file a formal complaint. If the physician continues to behave unprofessionally, follow through with these actions. In extreme cases, you may need to adjourn the committee and handle the behavioral issue through medical staff disciplinary channels.
When dealing with a disruptive physician, the primary role of the committee member is to speak up, validate the chair’s actions, and follow his or her lead. This can even be done through non-verbal nodding. Failing to support the chair in some way could give the disruptive physician the impression that committee members support him or her.
Committee members can speak up if they do not feel comfortable with the position or idea presented by the disruptive physician and discuss why in a non-emotional manner. They should, however, be sure to listen to the disruptive member’s point of view without interrupting. If the chair does not intervene, a committee member may need to take one or more of the actions above.
The traditional arrangement when a physician applies for clinical privileges at a health system is that the medical staff services department collects information from multiple sources to verify the physician’s current competence specifically related to the privileges requested.
Then the medical staff, through its defined processes (be it a credentials committee, a medical executive committee, or both), ultimately makes recommendations about those privilege requests to the governing board, which approves, modifies, or rejects the medical staff recommendations. With employed physicians, the process is basically the same but with a few little twists and turns that medical staff leaders should understand.
Privileges Contingent on Time Frame Completion
A best practice for both medical staff bylaws and for an employment offer letter or agreement is to have language to the effect that any application for medical staff membership/privileges that is not completed in 180 days is considered incomplete, at which point processing of that application will cease and the applicant is not entitled to due process under the medical staff bylaws.
Although this may sound harsh initially, the reality is that it can be very helpful. Almost any clean application can be easily processed within 180 days.
Imagine that despite everyone’s best effort an applicant slips through your screening cracks and you discover a huge red flag halfway through the credentialing and privileging process. You need additional time to put the burden on the applicant to produce further information to answer all your concerns. You want to avoid a negative decision on privileges since this opens up a Pandora’s box of litigation, due process, and National Practitioner Data Bank reporting.
By having this language in your documents, the medical staff can end the ordeal after 180 days without opening the door to a fair hearing and the employer can declare the employment offer null and void without high risk of lawsuit for broken agreement. Quite simply, the clock can run out and you are done. Of course, anybody can engage an attorney for any reason, but done properly, this safety valve can help minimize or deflect the possibility of legal action.
Another very common clause in a physician employment agreement is “co-terminus” language, which addresses whether clinical privileges are tied to the employment contract. If they are, then physicians automatically lose their clinical privileges if the employment contract is terminated. This agreement is between the physician and the employer. As such, it is a clear example of the fact that when an employment agreement with the physician exists, that agreement trumps the medical staff bylaws, which generally state that privileges exist until they are either voluntarily resigned or involuntarily removed.
Co-terminus language can keep the physician from retaining privileges and treating patients after his or her contract has been terminated.
Non-Compete Restrictive Covenants
Many employment agreements contain “non-compete” language, often referred to as a restrictive covenant. Non-compete clauses recognize that physicians who are no longer employed by the health system are prohibited from competing with that health system in the event that their employment contract is terminated. Generally, the non-competes are based on a specific geography (“x” mile radius from a defined site) and/or a period of time (generally 12 to 24 months). It is important to know how the courts in your state or your region view non-competes.
Some are rigorously upheld as long as they are “reasonable”; other jurisdictions rule routinely against even a reasonable non-compete. Again, medical staff leaders should be aware of such clauses. The terminated physician will often appeal to a medical staff leader to intervene on their behalf, but the medical staff leader really has no standing to do so in these kinds of contractual matters.