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Nick Healey
Hello and welcome to Beyond the Bylaws: The Medical Staff Show. This is Husch Blackwell LLP’s podcast covering the legal and regulatory aspects of hospital medical staffs. We’re focusing on the important but sometimes confusing world of medical staff legal issues. I’m Nick Healey, a health care regulatory partner at Husch Blackwell and I am in my third decade of working with hospital medical staffs.
00;00;23;29 - 00;00;37;26
Nick Healey
Before we dive in, I’d like to note that nothing in this podcast constitutes legal advice and the views expressed in this podcast are mine or those of our special guests and not those of Husch Blackwell.
00;00;37;29 - 00;01;08;12
Nick Healey
Welcome to Beyond the Bylaws the Husch Blackwell medical staff podcast. As I said in the intro, my name is Nick Healey. I’m a partner at Husch Blackwell and I have the distinct pleasure today of being joined by Tom O’Day, a partner in our Madison, Wisconsin office who has a significant amount of experience with respect to medical staff issues and particularly with the topic we are going to be talking about today through hearings and peer review process.
00;01;08;12 - 00;01;21;04
Nick Healey
So, Tom, I’m going to give you a couple seconds to introduce yourself. And I do want to extend my sincere gratitude for allowing your arm to be twisted to come on Beyond the Bylaws.
00;01;21;06 - 00;01;49;27
Tom O’Day
No, it’s an honor. I’m looking forward to the discussion. I am an employment attorney, but often work with medical staff issues and all the consequences that come from the, peer review process and working through these Health Care Quality Improvement Act due process hearings. So looking forward to having the discussion, talking about some of the nuances and then just putting this on everyone’s radar for purposes of their own internal audit of sorts with respect to the bylaws and their policies and processes
00;01;49;27 - 00;02;06;29
Tom O’Day
as we move through the next couple of years of, I just saw another article today about how the facilities are really struggling to find the MDs and DOs and other providers that they need in order to provide services. So no doubt these issues will continue to be important.
00;02;07;02 - 00;02;22;03
Nick Healey
Absolutely. Recruitment, I think all across the country for medical providers is a significant issue. So, hopefully, peer review processes won’t suffer as a result. Tom, you’re you’re in Madison. Did you go to the University of Wisconsin?
00;02;22;10 - 00;02;35;16
Tom O’Day
I did both undergrad and law school, a couple years in between working in our state capitol and, yeah, I have, practiced both in the Milwaukee and Madison areas, but work with clients across the country.
00;02;35;18 - 00;02;39;11
Nick Healey
My nephew just started at University of Wisconsin Medical School.
00;02;39;18 - 00;02;41;12
Tom O’Day
Very good. He wants to be.
00;02;41;12 - 00;03;06;14
Nick Healey
Yeah. I’m very hopeful that if he ever finds himself in a peer review situation, it is not the subject of the process, but instead, being asked to, review someone else’s care in case he’s listening, Ben, good luck with your first two weeks of medical school. I hope it’s going well. Okay, so, Tom, I just want to give a little intro into what we're going to be talking about today.
00;03;06;15 - 00;03;26;21
Nick Healey
We are going to be talking about the fair hearing process and peer review, processes themselves. We're not going to talk about the investigative process, which is probably a great joy to you simply because it is I mean, it could be the subject of its own podcast episode. It is. And investigations are a very, they can be complicated.
00;03;26;21 - 00;04;01;00
Nick Healey
They can be time consuming. There are separate rules that govern what you can or should do in an investigation. And so we're really going to be talking about what happens after the investigation is complete. And, you're essentially going through what people would traditionally recognize as a peer review process. Peer review, of course, being much more broad than just the fair hearing process or peer review, including, you know, traditionally includes things like quality improvement focus, professional practice evaluations, ongoing professional practice evaluations, outside reviews, etc., etc..
00;04;01;03 - 00;04;31;25
Nick Healey
This is episode is really focused on what what happens after all that is done and, you know, the medical executive committee or whoever it is has determined that there's an issue that will affect the individual practitioners, medical staff, membership or clinical privileges. And the individual is entitled under the bylaws and under teakwood to a hearing on the recommendation, that will affect their privileges.
00;04;31;25 - 00;04;39;05
Nick Healey
So that's really what we're going to talk about. So if you Tom, we're hoping we're going to talk about the investigative process. You can you can hang up I understand.
00;04;39;05 - 00;04;41;28
Tom O’Day
Fair enough. That is enough for its own podcast.
00;04;41;28 - 00;05;07;29
Nick Healey
Yes, yes. So as we'll talk about required does require that the hospital make a reasonable effort to obtain the facts of the matter before it undertakes corrective action that would trigger a hearing. That's the investigative part, the part we're going to talk about the peer review or fair hearing process is essentially to provide a mechanism for the hospital medical staff to police, I guess is one way to put it, the quality of care provided by medical staff members.
00;05;07;29 - 00;05;36;05
Nick Healey
And a lot of what I had been planning to talk about really, was a hospital peer review processes. I know that there are other entities that can have their own peer review processes. Some of them actually do require, reporting to the National Practitioner Databank depending on the outcome of the process. Besides ambulatory surgery centers, I've never actually worked with entities, other entities besides hospitals that undergo kind of peer review, fair hearing processes.
00;05;36;08 - 00;05;37;11
Nick Healey
I'm curious, Tom, if.
00;05;37;11 - 00;05;59;29
Tom O’Day
You have no, I have not. Certain medical groups that are, comprised of physicians or other providers might set something similar up, but not necessarily driven by the health care quality Improvement Act. Oftentimes they're relying on the hospitals or facilities at which they are privileged. So outside of the hospital and an ambulatory surgery center, there's there's not much need for it.
00;05;59;29 - 00;06;11;10
Tom O’Day
I don't think clinics are covered by the Health Care Quality Improvement Act, and National Practitioner Databank reporting requirements. If they're standalone. So for the most part it's hospitals and ASCs.
00;06;11;11 - 00;06;39;03
Nick Healey
Yeah. One interesting thing I have seen a couple of times in various statutes, both at the state level and the federal level, is an indication that medical societies, including county and state medical societies, can be reported to the National Practitioner Databank. And I, I do work with several medical societies, but I've never seen any of them that have peer review processes that would require the outcome of those processes to be reported to the ndpb areas, if you have.
00;06;39;08 - 00;07;02;00
Tom O’Day
No. That's fascinating. I, too, am involved with our Wisconsin Medical Society and the Foundation and have not heard of that prospect. I wonder the extent to which that's a legacy of a time when county medical societies were much more active, where they were truly a kind of brotherhood of the profession and regulating internally their peers in that somewhat more informal way.
00;07;02;00 - 00;07;03;25
Tom O’Day
But I just don't see it happening now.
00;07;03;28 - 00;07;21;29
Nick Healey
Yeah. Brotherhood, sisterhood, personhood. Yeah. With changing times, I think they've taken on a much different, cast at this point. Yep, yep. Okay, so just a little history in the early 80s and this time I think you may be a little older than I am. You may remember the early 80s better than I do. Is that accurate or.
00;07;21;29 - 00;07;28;00
Tom O’Day
No, it is not accurate. I do not and was not practicing in the early 80s, nor do I recall much.
00;07;28;04 - 00;07;53;07
Nick Healey
Fair enough. My recollection of the early 80s mostly involves Saturday morning cartoons, which is again the subject of another podcast episode, so we won't have to go through that. So, you know, in the early 80s, the peer review process has been, as we've been talking about it, the fair hearing process has been around for a long time, and it was really intended to give opportunities or give them members of medical staffs, if their care was questioned.
00;07;53;10 - 00;08;19;15
Nick Healey
The opportunity to protect the reputation and potentially property rights they have in medical staff membership and clinical privileges, a hospital. The medical profession has long been a very self-policing, or self-regulating profession. And this was really an opportunity for a physician to explain why they made choices in the care of their patients to their peers, hence peer review.
00;08;19;15 - 00;08;51;25
Nick Healey
But in the early 80s, that process was breaking down. It was becoming very litigious. Physicians going through the peer review process were increasingly suing the hospitals and individually, the physicians serving on peer review panels on the basis that, particularly peer review processes were being used for anti-competitive purposes, essentially, that physicians were being subjected to the peer review process and being stripped of their clinical privileges by competitors who wanted to essentially protect their turf in a particular hospital.
00;08;51;25 - 00;09;19;03
Nick Healey
And because physicians who were serving on these panels were getting sued, it was becoming increasingly more difficult to find physicians to participate, and hospitals were getting skittish about requiring physicians to go through peer review because they didn't want to be the subject of a lawsuit. So kind of mid 80s, Congress established the Health Care Quality Improvement Act, which, I've already mentioned, that is how at least how I'm I've always heard the abbreviation Aqua.
00;09;19;05 - 00;09;44;06
Nick Healey
I guess you could say. Yeah, I have heard actually that a couple times. So in the mid 80s Congress established, and the stated need was to protect effective professional peer review on a national basis to, you know, essentially improve the quality of medical care being provided and incentivize physician engagement in that process by conferring immunity from liability for any actions arising from participating in peer review.
00;09;44;07 - 00;10;02;21
Nick Healey
There are a lot of state analogs to aqua. There's generally a peer review protection, liability protection for physicians at the state level who participate in those processes at the hospital. I'm sure Wisconsin has one, but, I haven't actually encountered it. But it does. Tom.
00;10;02;21 - 00;10;10;14
Tom O’Day
Yes they do. There is an equivalent state law with those protections and peer review protections and then, immunity protections for individuals in the process.
00;10;10;15 - 00;10;29;05
Nick Healey
Go, okay. And so essentially today we're going to talk about the outcome of request that really does serve as the basis for a lot of the practices that hospitals have put in place to govern their fair hearing processes. So we're going to talk about some of the best practices that we've both seen in peer review and corrective action processes.
00;10;29;07 - 00;10;54;15
Nick Healey
Some of the trends we're seeing in the peer review arena, including how courts are treating peer review, confidentiality and privilege, and equal state law based immunities. For, as we just talked about, the participants in those processes and then talk about some guidance, issues to consider when it comes to essentially medical staff members who challenge peer review outcomes or the process these and processes themselves.
00;10;54;15 - 00;11;22;27
Nick Healey
So jumping into the corrective action kind of hearing idea, just laying the groundwork here. So require generally only applies to a professional review action. And it has a very specific definition of what can be considered a professional review. Action requires that the hospital be acting in the reasonable belief that it was furthering quality health care. You have to go through a reasonable effort to obtain the facts of the matter, which is essentially the investigation we've been talking about.
00;11;22;27 - 00;12;02;09
Nick Healey
And then you have to give physicians adequate notice and hearing procedures or other procedures, as are fair to the physician under the circumstances. And I want to actually just key in on that part. Right now, most hospitals that I'm familiar with and have worked with have a kind of trial type proceeding that is their fair hearing process. I have only ever seen the second part of require the other such procedures as are fair to the physician of the circumstances, be used as a defense essentially, that we may not have, you know, followed, what you know, what have been thought of as adequate notice and hearing procedures.
00;12;02;11 - 00;12;23;17
Nick Healey
But these were what we did was fair to the physician under the circumstances. So kind of used to excuse minor defects in the proceeding. So tell I'm curious about your experiences with anyone who has ever designed a process other than a fair hearing process that has been justified under this. Such other procedures as are fair to the physician under the circumstances.
00;12;23;17 - 00;12;49;02
Tom O’Day
Similar to you, I have not seen that proactively used as the process as an alternative to a setting where you've got witnesses and the ability to cross-examine in front of an independent decision maker. I suppose another such procedure that's fair to the physician, under the circumstances, could look something like an arbitration process where there might not be some level of discovery that would otherwise be available.
00;12;49;02 - 00;13;15;12
Tom O’Day
And certainly litigation, but even that a peer review hearing under require. But I too, have only seen that aspect of the law used in defense of things like we were outside of our timeline to provide you notice, or we were outside of our timeline to get you a decision, or our panel didn't have five people like it required in the bylaws, and only had three people because of the difficulty of finding people for that peer review process.
00;13;15;14 - 00;13;39;03
Nick Healey
And I'm curious too, in my experience, a lot of the hospitals I've worked with have been, public entities, county hospitals, hospital districts, special districts, those kind of entities at the state level. And there's a far better argument on behalf of the physician going through the peer review process, that there are due process elements to the peer, the fair hearing processes, when it's a governmental entity that's running it.
00;13;39;07 - 00;14;12;12
Nick Healey
I'm curious about your experiences, both with governmental entities and with non-governmental entities and and how, I mean, it was seems to pretty much encapsulate the requirements of due process. So if you're a governmental entity hospital, then if you follow require and it's fair hearing procedures that it outlines, then you are, you know, probably satisfying due process. I'm curious how much leeway you've seen non-governmental entities take with the hearing procedures that may not constitute due process from a state law perspective, right.
00;14;12;13 - 00;14;37;00
Tom O’Day
My experience is mostly on the private sector side, and I rarely, if at all in the medical staff space for per year peer review hearings. I have not worked with a governmental entity, and that latitude for a due process argument is less in the private setting. When you've got the government actor involved, that it is more valid argument to make that due process wasn't present.
00;14;37;00 - 00;15;15;08
Tom O’Day
But when it is in the private sector, if you're following the Health Care Quality Improvement Act, you're relying on things like those other procedures, as are fair to the physician, under the circumstances, there's a lot more leeway for the facilities. And in the private sector, they've got a pretty significant leg up on the process. It's a presumption that the facility and their process are fair, and as long as the facility follows the process that they've laid out or doesn't vary from it too much, I think there's a pretty strong presumption that that is acceptable in courts would be leery to disrupt whatever decisions come from that process.
00;15;15;11 - 00;15;43;06
Nick Healey
And that's an interesting point, because, I mean, on the governmental side, you know, there's case law, which the standard is generally it's considered agency action when the governmental entity takes action that affects someone's property interest in their medical staff membership or clinical privileges. And the standard for whether agency action is valid or not tends to be whether it's, arbitrary, capricious, unsupported by facts or otherwise contrary to law.
00;15;43;06 - 00;16;08;20
Nick Healey
And there's case law out there which says if a governmental entity doesn't follow its procedure, that it is per se arbitrary and capricious. So you don't, you know, you don't get much latitude, I guess, is the best way to put it on the governmental side, if you don't follow the processes that are outlined in the bylaws. But from what you're saying, it sounds like there's a little more latitude as long as you are following require, on the nongovernmental side, exactly.
00;16;08;20 - 00;16;41;18
Tom O’Day
Arbitrary and capricious standard sometimes is worked into the medical staff bylaws as the standard with which the appellate levels are reviewing a decision by a hearing panel. And I would argue that that arbitrary and capricious standard is something that is set by bylaws, not necessarily by common law, but by courts or by even necessarily, the statute. But if a medical staff decided to set a standard that's different than arbitrary and capricious, I think there might be room for that in the medical staff bylaws of a private facility.
00;16;41;25 - 00;16;59;29
Nick Healey
My recollection is that I'm not. I'm only licensed in a couple of states, and none of them have statutes that direct me, regulate peer review hearings or the content of peer review hearings. Do you have experience in other states where they regulate peer review hearings in private hospitals at all?
00;17;00;04 - 00;17;02;04
Tom O’Day
Not at the state level that I'm aware of.
00;17;02;07 - 00;17;04;01
Nick Healey
Okay. So it's like we're nothing.
00;17;04;03 - 00;17;04;21
Tom O’Day
Right?
00;17;04;23 - 00;17;05;27
Nick Healey
Okay. Interesting.
00;17;05;28 - 00;17;31;25
Tom O’Day
There may be not a anything about, you know, there there may be cases in that jurisdiction. So Arizona as an example where I know there is a there is an accepted kind of standard that is set both in the practice of the attorneys that are in that jurisdiction, but also set by cases that have previously been decided with respect to due process hearings and the practicing attorneys.
00;17;31;25 - 00;17;48;02
Tom O’Day
And the generally accepted process comes from some about case law. But I don't believe that I'm aware of any individual states with statutes similar to the Health Care Quality Improvement Act that govern the process itself.
00;17;48;05 - 00;18;26;01
Nick Healey
Okay. Interesting. And I don't remember which they are. I just I remember that there are some. So I think that maybe, maybe that's something we can turn a young associate on to. There you go. So in your I guess the other question here is, is who gets a hearing? Because, you know, it's a very intensive, expensive process to go through a medical staff hearing, as we talked about, it's a trial type hearing in which the physician has certain, notice and, rates to confront the witnesses that are providing evidence about their quality of care, professional behavior.
00;18;26;03 - 00;18;48;09
Nick Healey
And so it's something that a lot of hospitals would like to avoid if they can. But in your experience, you know what my experience, physicians are generally the only ones entitled to they full due process style hearing. Although, you know, nurse practitioners and Pas are making inroads into that. But I'm curious, in your experience, who gets a hearing with the medical staff you work with?
00;18;48;12 - 00;19;25;05
Tom O’Day
In my experience, it has been those MDS and Bios. There is a definition of the term physician that's in the law itself, which is more broad than just MDS and doctors. It includes, doctors or dental surgery or medical dentistry. And I have seen instances where some of the, podiatrists, chiropractors and some of the clinical psychologists and other similar professionally credentialed individuals have those rights under bylaws at the medical staff level that, that are included in some of the peer review and the the fair hearing processes.
00;19;25;12 - 00;19;55;25
Nick Healey
Yeah. What's your experience with nurse practitioners? And perhaps from a whether they get the full trial type hearing or do they get an abbreviated process? Because I've been going through a, medical staff bylaws revision process right now where, the question is come up, given that the DMV and the Joint Commission require that MPs and peers be given, they don't have to be given the same process, but they have to be given a process before corrective action is taken.
00;19;55;25 - 00;20;10;23
Nick Healey
The question is how much process to give them. And so I'm curious if, you know, have you seen an abbreviated process as people just said, we'll do the same thing for them as we do for everybody else? And what I guess, what could you take out that you would feel comfortable with?
00;20;10;25 - 00;20;43;12
Tom O’Day
Right. I have not seen any advanced practice providers, nurse practitioners, physician assistants or other similar levels with the same level of due process protections or the same level of fair hearing rights. Okay, the employment attorney and me, the management side employment attorney, and methinks that's not something you would want to do. Those individuals might have an employment agreement that governs the employment relationship to the extent that they're an employed individual.
00;20;43;14 - 00;21;14;02
Tom O’Day
But on medical staff, I because the process of a fair hearing is so detailed and costly, both from a pure monetary cost as well as economic cost of all of these people tied up in the process. And then the employment relations or human relations aspect of how difficult these hearings are for people, I would not generally offer it to people that are not required under the Health Care Quality Improvement Act, and they're not even required under the Health Care Improvement Act.
00;21;14;02 - 00;21;27;02
Tom O’Day
It's more you're not going to get immunity from giving a nurse practitioner or an AP the the fair hearing process, and I don't think it would be worth the time and effort it would take to put that in place.
00;21;27;08 - 00;21;50;23
Nick Healey
So one one interesting facet of that, that I've recently, over the last couple of years, kind of encountered and become a lot more aware of is there's a growing sense among nurse practitioners and Pas is that physicians are using the medical staff to exclude them. Similar to how, you know, physicians were accused of using the peer review process to exclude competitors.
00;21;50;23 - 00;22;21;15
Nick Healey
The basically physicians who are on the medical staff and make up the medical staff that hospitals are using, non they're basically using this non rule based peer review process to to impose requirements on peers and MPs like supervision or, you know, strip them of the authority to work in the hospital on competitive grounds and basically for the lack of peer, the lack of a peer review process or, yeah, a lack of a peer review process for nurse practitioners.
00;22;21;15 - 00;22;38;23
Nick Healey
And Pas is has sort of become a front in the I don't want to say war, but war between Pas and MPs and physicians on who gets to do what in a hospital. And I've heard rumblings of claims that, you know, physicians are doing this on an anti-competitive basis. Have you encountered that at all?
00;22;38;25 - 00;23;30;10
Tom O’Day
I've not encountered a myself, but that makes sense. But of course, what is one person's anti-competitive animus? Is another MD or Dios quality of care, medical quality kind of concern. So that's an interesting concept. And I can see how the the advanced practice providers, the NPS and physician assistants would be making that argument. But I've not seen in practice where those levels of provider have the same kinds of due process protections and as, as a management side hospital advising attorney, I would suggest that hospitals don't provide it because they're not going to get the level of immunity that they get for going through the entire Health Care Quality Improvement Act process for physicians and
00;23;30;10 - 00;23;32;16
Tom O’Day
other similar credentialed individuals.
00;23;32;18 - 00;23;42;13
Nick Healey
So you've said a couple times, management side, I'm curious, have you ever worked with a physician or provider on that side of the peer review process?
00;23;42;15 - 00;24;04;27
Tom O’Day
I have time. The time we do, we do get involved, on behalf of the individuals, which is insightful because the the strategies are are different, but it is it is insightful. But we as we have worked with individuals and it might be with a, you know, at times there are insurance companies that are reporting to the National Practitioner Databank, and you might be working with an individual through that process.
00;24;04;27 - 00;24;14;29
Tom O’Day
And that gets similarly kind of caught up in, a medical staff bylaws, privileges issue. So from time to time it does come up where we work with individuals and to the facility.
00;24;15;02 - 00;24;36;25
Nick Healey
I've, I've done I've done that work as well as worked on behalf of medical staffs. And I have always appreciated that. It gives you a great feel for both sides of the process, and I think it makes it makes for more fair advice when you are representing medical staffs because you understand the perspective of the person going through the process, which is it can be very disruptive to them.
00;24;36;25 - 00;24;56;04
Nick Healey
It can be very stressful. And I think it it just makes for a more empathetic process that ultimately can be more effective. And you can minimize some of the blowback that comes from this kind of peer review process, because they can be very disruptive to a hospital. Right? Okay. So we've talked about the underpinnings of the hearing process.
00;24;56;04 - 00;25;20;00
Nick Healey
And I just want to touch on professional review actions, which are those for which a hearing is required if you take them. So you know, from a liquid perspective they generally must last longer than 30 days, which is, you know, if it's longer than 30 days, you have to report it to the National Practitioner Databank. I am aware that actions that take place 14 days or longer fall into a gray area.
00;25;20;07 - 00;25;33;12
Nick Healey
And I'm curious, you know, I generally write medical staff bylaws so that if the actions do last longer than 14 days, you're required to give that practitioner hearing. But I'm curious if you have any insight into that or experience with that.
00;25;33;14 - 00;25;50;25
Tom O’Day
I have seen that come up. That is a nuance. I do think that it is driven by the bylaws in a lot of situations, but it is curious because it's not clear where that 14 days comes from. I believe there's references to it in the statute in the Health Care Quality Improvement Act, statute itself.
00;25;50;25 - 00;26;11;12
Nick Healey
Yeah. And and I don't have it in front of me. My recollection is it's kind of a safe harbor where it says, you know, you don't have to give somebody a hearing if it lasts less than 14 or 14 days or less, but if it lasts longer than 30 days, then you do. And so my recollection is that that's why it's a gray area.
00;26;11;12 - 00;26;32;14
Nick Healey
So basically 15 to 30 days, because it says you don't have to give them a hearing if it's 14 days or less, but you do if it's 30 days or more and so 14 or 15 to 30 is kind of your discretion. But, you know, I think from a at least in my view, it's it's best to provide the hearing, you know, because in that situation you can't be faulted in a lot of situations.
00;26;32;14 - 00;26;49;21
Nick Healey
Providers can make head of the fact that you didn't give them a hearing 15 days or more. And, you know, if you think it's a serious action and it's going to go longer than giving them a hearing at that point is probably a best practice. So I just bring it up because it's a gray area that I'm curious what other people do in that situation.
00;26;49;21 - 00;27;15;27
Tom O’Day
Right. I've seen what we often advise. As for the medical staff bylaws process for a hearing to kick in for a professional review action that's longer than 30 days, which makes it then reportable to the National Practitioner Databank, because I think most providers, most physicians are out there saying that's the report to the National Practitioner Databank. That is the ultimate thing that they'd like to avoid.
00;27;15;27 - 00;27;39;18
Tom O’Day
They don't want that on their record going forward when they're seeking privileges at other facilities, and that doesn't go into place unless there is something in place 30 days or more. For that reason, I've seen a lot of medical staff bylaws that are drafted that say if it's 30 days or more, this professional review action or adverse action, then your due process rights kick in.
00;27;39;20 - 00;28;00;03
Nick Healey
Yeah, and I think that's a good point because, we've talked a little bit about how disruptive and expensive peer review hearings are to go through, but it's worth noting that they're just as disruptive then, and potentially more so and expensive for a physician to go through them. And so, you know, it may be, as you said, physicians may not want to trigger that if there isn't going to be a lasting consequence.
00;28;00;03 - 00;28;31;15
Nick Healey
So you know that 15 to 30 days, it's a, it's really up to the discretion of the facility. But at the same time, you know, taking those two things into account are important. So okay, again, it's a professional review action generally longer than 13 days. And what is the action itself that requires the hearing kick. We would say it's an action or recommendation of a professional review body taken or made in the conduct of a professional review activity based on the competence or professional conduct of an individual physician.
00;28;31;15 - 00;29;01;28
Nick Healey
That part is, in my experience, the rub the competence or professional conduct of an individual physician. So we're going to come back to that. But but liquid does include a lot of exceptions to what is considered a professional review action. You don't have to give somebody a hearing if the action is based on, you know, their participation in any particular insurance plan, their affiliation with any particular private group, practice, their employment status, that kind of thing.
00;29;02;01 - 00;29;33;04
Nick Healey
But in terms of professional conduct or competence, I mean, that to me is really where the rubber is. That's where the rubber meets the road. And teasing that out sometimes can be challenging. The primary example that I always think about is medical records. It used to be under the National Practitioner Databank guidebook, the Ncpdp guidebook that they canceled against giving hearing where a professional review action was taken on the basis of someone's failure to complete medical records.
00;29;33;04 - 00;30;00;00
Nick Healey
They revised the and PDB guidebook a couple of years ago to make it more so that you as long as it, you know, lasted longer than 13 days or 30 days that it did that was considered to impact, you know, the individual's professional conduct or competence, and it could adversely affect the health or welfare of a patient. So that should be considered a professional review action, which surprises a lot of physicians, to be honest.
00;30;00;03 - 00;30;26;15
Nick Healey
You know, they tend to think the medical records are, at least in my experience, a lot of them think that medical records are kind of an ancillary part of practicing medicine. And I think the Ncpdp is really taking the position that they're an integral part. And so I'm curious what reactions you've gotten. If you give that advice to people, you know, that you you do need to give someone a hearing if you're going to take their suspend their privileges for more than 30 days as a result of medical records issues.
00;30;26;17 - 00;30;54;26
Tom O’Day
Right. I do think it is a surprise that it certainly is a shift. I think the last guidebook was revised in 2018, if I remember right, is when we got the last version of it. But they have since done questions and answers on the National Practitioner Databank website that are really pretty helpful. And one of their questions very directly goes to that, that issue of a hospital taking a professional review action to suspend a physician's privileges for 60 days, citing professional misconduct for not charging on time.
00;30;54;29 - 00;31;27;21
Tom O’Day
And the databank in this question and answer set up responds, it depends whether or not it needs to be reported, and it talks about whether that action could adversely affect the health or welfare of a patient. And that's like I said, that's not always clear, but I think you can make an argument that any failure to chart means the next step in the medical treatment process, or the next time that that individual visits with a provider, either the same provider or a different provider, that individuals, health or welfare could be impacted.
00;31;27;21 - 00;31;47;05
Tom O’Day
So it is a surprise to everyone. But I think facilities are wise to make sure that the physicians and MDS and DLS know on the front end that charting is something that can affect their professional competence and quality of care. That's, could rise to the level of a corrective action and report to the databank.
00;31;47;09 - 00;32;08;16
Nick Healey
So we're going to switch gears here just for a second. Talk about the process itself and kind of some of the steps in the process. We've talked a little bit about, you know, how we're not going to talk about the investigation, but you know, the steps at least that I'm familiar with in a traditional peer review hearing, are, you know, constructive counseling often happens, although it's not required.
00;32;08;17 - 00;32;38;04
Nick Healey
If constructive counseling is not effective, you go to the formal investigation. The MSI reviews the results of the formal investigation and makes a recommendation for corrective action. That recommendation, in my experience, is traditionally to the governing body. And once the recommendation is made, then the individual gets a hearing and going back up to the definition of a professional review activity, as we just saw, it includes an action or recommendation of a professional review body.
00;32;38;04 - 00;33;01;22
Nick Healey
In this situation, the MEC is the professional review body, and it would be considered their recommendation to the governing body on whether somebody should have their privileges revoked or suspended or restricted. That would be something that they should get a hearing on. Then they get notice that they have the right to a hearing that's required to state, the hearing, you know, isn't going to happen before 30 days from the date of the hearing.
00;33;01;27 - 00;33;23;02
Nick Healey
And it has to, you know, there's a couple of other things that has the state, and then the physician has to actually elect to have the sharing. And then you go through the trial type hearing. And then there's usually an appeal that's a really brief kind of outline of the various steps. Yeah. I want to ask though, Tom, in your experience of those steps, which is the one that facilities screw up the most often.
00;33;23;06 - 00;34;12;01
Tom O’Day
It's an interesting question, because I think the biggest area of opportunity for facilities is to make sure your bylaws are meeting your expectations. And with all those steps in the process that you rightly outlined, even something as minute as defining when an investigation commences is really important for purposes of the peer review process, because I think what a lot of practitioners, individual physicians forget is if they resign privileges while under investigation, that is reportable to the databank, and there is room for a facility to make clear in their bylaws when the formal investigation starts, such that it would be reportable to the databank, and the databank is over time, trying to rein that in.
00;34;12;01 - 00;34;38;16
Tom O’Day
And then they backed away from it a little bit. But for the most part, I would say that facilities have the opportunity to set. But as clearly as they can, the lines of demarcation between an investigation not happening quite yet and the investigation process starting such that it would require a report. And that's that's the area that I think facilities in practice, because it's on the front end of the process encounter the most.
00;34;38;18 - 00;35;07;18
Nick Healey
Yeah. And that's another interesting point, that you mentioned about the investigation and, and the report ability. And although we said we weren't going to talk about investigations, I think that's an important enough point that we should explore just a little bit because, as you rightly said, the Ncpdp guidebook has it has tightened the definition of when an investigation begins for purposes of reporting a resignation during the investigation, it's tightened that up somewhat.
00;35;07;18 - 00;35;42;02
Nick Healey
And it has said that we aren't bound by the medical staff bylaws. Of course, you always want to make, you know, put your best foot forward and give yourself as a facility the best chance of arguing that an investigation starts when we say it starts and not before. But the MDB has been a bit cagey about this, and it seems in their most recent guidance that there is a lot of room to find that an investigation actually starts at a far earlier point than anyone would have thought.
00;35;42;02 - 00;36;18;09
Nick Healey
I think they they use the phrase individualized inquiry. So if there's an individualized inquiry into a physician's competence or professional conduct, you know, no matter whether you say it's an investigation or not, the NBN PDB can say that's an investigation. If they resign, you know, during any part of that individualized inquiry, which only ends when the inquiry is abandoned or finds no problems or, and abandoned is probably the wrong word, but basically resolves, finds no problems or goes all the way through the appeal process.
00;36;18;09 - 00;36;52;20
Nick Healey
If there's a resignation at any point during that period, then it's reportable. And again, a lot of facilities and hospitals have a hard time with this because they try to in my experience, they try to define investigation so narrowly that the PDB is going to go no, no, you were investigating way before that point. You didn't, you know, report a resignation during an investigation when you should have and you know, the PDBs penalty for that is you lose your immunity under request for a period of time.
00;36;52;20 - 00;37;14;27
Nick Healey
So you know that's a pretty stiff penalty. But I find that the PDB is going pretty far there. In my view they are calling things investigations which most people don't recognize is that and don't intend for that to be the case for a resignation at that point prior to the formal investigation. They don't intend that it be reportable.
00;37;15;01 - 00;37;34;13
Nick Healey
And so I think they've really kind of amped up the pressure on both facilities and physicians to make, as you said, make it very clear when you think an investigation starts. And and essentially, although the PDB is not going to be bound by that, it gives you at least the best argument you can that you did what you were supposed to do in terms of reporting.
00;37;34;13 - 00;37;35;17
Nick Healey
If it's questioned.
00;37;35;19 - 00;38;11;20
Tom O’Day
That's exactly right. That is, I think the first area of where a facility needs to really look at the medical staff bylaws and see how those line up with their process. One does that investigation phase start and then evaluate all those different considerations. You just went through the other area on the front end of this whole process that you mentioned briefly as well, is whether the steps that are taken to address whatever the concern is with respect to the physician are related to employment, or are they related to their medical staff membership.
00;38;11;23 - 00;38;46;16
Tom O’Day
And with the movement of more and more physicians toward an employed model for a facility, there is often more opportunity for a facility and for the practitioner working together if they want to, to say this is really unemployment action, that we're taking on the human resources side of our structure, such that we're terminating your agreement for cause or for not us, but we're doing it such that it is not going to be reported to the National Practitioner Databank.
00;38;46;18 - 00;38;54;10
Tom O’Day
It's not a professional review action and the due process rights under our medical staff bylaws don't apply.
00;38;54;12 - 00;39;17;07
Nick Healey
Yeah. So one of the things that we've talked about a little bit is the necessity of following the procedures that are in your bylaws. And, you know, I mentioned with governmental entities, you know, that can be viewed very strictly. If you don't follow your bylaws to the tee, then it can be considered arbitrary and capricious. You mentioned that private entities have more leeway in that respect.
00;39;17;07 - 00;39;29;02
Nick Healey
And so I'm curious from a bylaws perspective, do you do you have template bylaws, template hearing processes that you generally recommend? You know, for one type of facility or another?
00;39;29;05 - 00;40;16;04
Tom O’Day
I do have language that I prefer, and for the most part, it is language that allows for more flexibility for the facility. Still, within the minimum requirements of the Health Care Quality Improvement Act, still fair to the provider or the practitioner. But I don't see any variance too much between types of facilities. If it's an acute care facility or ambulatory surgery center or other type of facility, my approach to drafting bylaws is to allow for the flexibility within what's allowed and in order to continue to be fair, but not to get caught up where you're in a position where you're your bylaws require you, for example, to issue a post due process hearing report within
00;40;16;04 - 00;40;49;08
Tom O’Day
ten business days. Because oftentimes I see something like that, a timeline that is very clear, black and white, strict, without any flexibility that is tough to meet if there's a day long or two day long hearing, it's going to be tough for that hearing panel that probably struggled to find time mutually to get together in a room for the hearing, to get together, to review a draft, or even put some general thoughts into what the decision is going to look like in ten business days just isn't enough.
00;40;49;09 - 00;40;49;20
Nick Healey
Yeah.
00;40;49;20 - 00;41;00;24
Tom O’Day
Good point. With respect to bylaw drafting, I like to allow some of those different, levels of flexibility that again, are still fair and within the boundaries of the Health Care Quality Improvement Act.
00;41;00;25 - 00;41;25;02
Nick Healey
Yeah. And and in having encountered some of those complaints from physicians before, I have started, including a section in the bylaws stating that the physician agrees that in substantial or technical failures to follow, those processes aren't don't constitute a violation of the bylaws. It hasn't been challenged yet. But, you know, I think it does put the physician on notice that we are doing the best we can.
00;41;25;07 - 00;41;51;22
Nick Healey
And to the extent that particularly timing issues don't impact a physician's due process rights or don't financially impact the physician, such as potentially they, you know, they their privileges haven't been suspended. You know, that can obviously impact them financially. But if it's not going to impact them from a financial perspective, you know that they have a little more leeway in arranging these when it makes sense for everybody arranging these hearings.
00;41;51;22 - 00;42;12;10
Tom O’Day
That's a great idea. That kind of language, right, in the medical staff bylaws makes a lot of sense. There is language in the health Care Quality Improvement Act that talks about how the failure to meet conditions described in the law, which are which are, you know, fairly specific, are not by themselves failures to meet the due process standards of the Health Care Quality Improvement Act.
00;42;12;10 - 00;42;22;23
Tom O’Day
So I would argue even in the statute itself, there's language that allows for that flexibility to be exercised while still being fair to the practitioner that's under review.
00;42;22;25 - 00;42;44;15
Nick Healey
Well, that sounds very reasonable. Are you sure that's in the law? That it is, I yeah, let's put something reasonable. Okay. Well that is fair enough. So last thing I want to talk about before we break here is the right to representation. And, and I require obviously requires that the physician be that have the right to be represented by an attorney in the process.
00;42;44;15 - 00;43;07;19
Nick Healey
I have seen bylaws which give the physician the right to be represented by another physician. I have never seen a physician take that opportunity to be represented by another physician. In some clinical situations, maybe it would make sense. But in my experience, every time the physician has been represented by an attorney and I'm curious if you've ever seen anything other than that.
00;43;07;25 - 00;43;29;21
Tom O’Day
That's my experience as well, that they usually do recognize the significance of it and and do bring legal counsel on board, although again, in the actual Health Care Quality Improvement Act statute itself, it talks about how the physician involved has the right to representation, by an attorney or other person of the physician's choice. So I think that standard is in the statute.
00;43;29;21 - 00;43;43;07
Tom O’Day
And in theory, if a facility were to refuse that physician's colleague or other person of their choice, they might have to combat an argument that they weren't satisfying the requirements of the statute itself.
00;43;43;14 - 00;44;04;08
Nick Healey
Well, that's an interesting point, too. I mean, how much flexibility do you have to give? I mean, if they choose to be represented by someone who is not going to have any, you know, an attorney would potentially have some something to add from a a legal process perspective. Another physician would have something to add from a medical process perspective.
00;44;04;11 - 00;44;35;10
Nick Healey
But let's say that they want to be represented by I mean, I'm just picking something out of the air. A car salesman, like, what is that person to add to the process? Why would you have to besides the fact it's in the statute, why would you have to allow that? To me, that would be that would come under the idea that, well, we didn't do that, but we offered them the opportunity to be represented by a physician or an attorney, and therefore the procedures were fair to the, you know, the physician.
00;44;35;12 - 00;44;42;01
Nick Healey
And, you know, we've satisfied the substantive purpose of require, even if we haven't given them that particular right.
00;44;42;04 - 00;45;09;24
Tom O’Day
Yep. I think that flexibility, I'd say, is still allowed. And it goes to that language in that same section of the statute that talks about the failure to meet the conditions is not by themselves, a failure to meet the standards of the Health Care Quality Improvement Act, the another flashpoint I've seen with the representative of the physician under review is the confidentiality of the health care records that are at issue.
00;45;09;26 - 00;45;38;29
Tom O’Day
So if a physician under review does have their car salesman brother as the other person that they want at the hearing, I have taken steps, even with other attorneys, to put agreements in place that say this third person attorney or car salesman or other person understands these medical records, are privileged, are protected, cannot be shared, and meet some of those confidentiality obligations of a facility that becomes a flashpoint because a lot of other attorneys say, heck no.
00;45;38;29 - 00;46;04;02
Tom O’Day
Am I signing anything you put in front of me? That's my right. As a representative of my client, the physician that's under review. And that can get a little testy at times. But that's one space where a facility might be able to reasonably say, we can't allow this random other person access to these very confidential, personal and patient health information records that are in dispute in this case.
00;46;04;04 - 00;46;28;24
Nick Healey
Yeah. And, you know, a flashpoint that we're also going to talk about next time isn't just the medical records, but also peer review records of other physicians, people going through these processes always want to bring up, you know, you're treating me differently than you treated someone else. And I want, you know, to see all the records of physicians who have been subjected to or gone through the peer review process for exactly what I'm being, you know, going through the peer review process.
00;46;28;24 - 00;46;47;22
Nick Healey
And I want to see what the results were in that case, because I think you're being you know, you're yeah, essentially you're you're singling me out and you haven't done anything about these other people. And so we're going to talk about that next time. But, but that sometimes comes along with, having a representative that isn't well versed in these processes.
00;46;47;22 - 00;46;58;00
Nick Healey
And it can be a flashpoint and it can end up creating a lot of acrimony and waste a lot of time and generate a lot of heat when it isn't. It shouldn't really be a flashpoint. So. All right.
00;46;58;02 - 00;47;22;09
Tom O’Day
And for our our best practices with respect to bylaws, as you say, that I've not necessarily thought of this before, but in theory, the bylaws could say that the records and history with respect to other practitioners on the medical staff are not relevant by medical staff, by law, fiat, those aren't relevant to any other practitioners due process, hearing.
00;47;22;12 - 00;47;26;19
Tom O’Day
And that might might be a way to try and avoid that very, very sticky situation.
00;47;26;21 - 00;47;48;27
Nick Healey
Yep. Absolutely. Well, Okay. Tom, I know we are about out of time. I have already secured your agreement to reappear. And so I guess let's recess part one of this particular Beyond the Bylaws episode. And when we get back next time, we're going to talk more about the nitty gritty conduct of the hearing, as well as hearing officers, discovery and appeal.
00;47;48;27 - 00;47;59;12
Nick Healey
So Tom this has been great. Thank you very much for agreeing to do this. I really appreciate getting the chance to talk about this with someone of your experience level, and I really do look forward to next time.
00;47;59;19 - 00;48;01;01
Tom O’Day
Absolutely. Thank you.
00;48;01;04 - 00;48;21;00
Nick Healey
All right. Thanks, Tom.