[Medical Staff] Lifecycle of a [hospital employed] physician

1. [Medical Staff] Lifecycle of a [hospital employed] physician Nick Healey, Dray, Dyekman, Reed & Healey, PC

2. 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.

3. 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

4. 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.

5. 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.

6. 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.

7. Critical areas • Information flows between HR and Medical Staff • Particularly in applications and processing initial employment • Disciplinary issues • Termination procedures

8. Information flows • General principle: Information generated by medical staff processes is confidential and privileged and cannot be shared with other areas of the hospital.

9. 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…

10. 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

11. 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.

12. 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]

13. Do you… • Call HR to get as much information as they can give you, or • Tell the CEO its not your problem?

14. 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.

15. 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!"

16. 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?

17. 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.

18. 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.

19. 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?

20. 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.

21. 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?

22. 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.

23. 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.

24. 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?

25. 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.

26. 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.

27. 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?”

28. 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.

29. 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.”

30. 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.

31. 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.

32. Reference requests • Dr. Real’s medical staff membership and clinical privileges terminate with his hospital employment. • The Medical Staff Office gets areference 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.

33. 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?

34. 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.

35. Questions? Comments? • Nick Healey • Nick.healey@draylaw.com • 307-634-8891