Navigating Peer Review and Hospital Medical Staff Bylaws

MirzaHealthLaw.com Protecting Your Rights: Navigating Peer Review and Hospital Medical Staff Bylaws Counselor On-Call - MirzaHealthLaw.com

MIRZA | Healthcare Law Partners Ben Assad Mirza DEGREES: YALE UNIVERSITY, MASTEROF PUBLIC HEALTH ADMINISTRATION (MPHA) VILLANOVA UNIVERSITY, LLM IN TAXATION - M&A CORPORATE TRANSACTIONS NOVA SOUTHEASTERN UNIVERSITY, JURIS DOCTOR - LITIGATION CONCENTRATION FLORIDA INTERNATIONAL UNIVERSITY, BACHELOR SIN ACCOUNTING - FINANCE WORK EXPERIENCE: MIRZA | HEALTHCARE LAW PARTNERS (MANAGING PARTNER) BROWARD HEALTH MIRZA, BASULTO, & ROBBINS, LLP AMERICAN MEDICAL DEPOT ATLAS PEARLMAN, PA LEBLANC & ROYAL TELECOM FPL GROUP (NEXTERA) NEGOTIATED $3+ BILLIONWORTHOFCONTRACTS REVIEWED 10,000+ OFCONTRACTS. LITIGATEDASNAMED PARTNERONNEARLY 2,000 CASES LICENSEDIN FLORIDA & WASHINGTON, DCSINCE 2001 Formerly CPA, CHC, ISO9000 Page: 2 Counselor On-Call - MirzaHealthLaw.com

Protecting Your Rights: How to Navigate Peer Review and Medical Staff Bylaws Attendees: Intended for healthcare medical officers, CEO s, administrators, general counsels, and compliance officers. NOTE: This presentation is intended to be a general informational and educational session. It is NOT legal advice. The seminar forum is open, live, and being recorded for use as a public on- line resource. Page: 3 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals PRESENTATION ROAD MAP 1. 2. 3. 4. 5. 6. 50 MINUTEPRESENTATION: CASE SCENARIO GOVERNING DOCUMENTS CREDENTIALING & PRIVILEGING PEER REVIEW & PROFESSIONAL REVIEW ACTIVITY PEER REVIEWSAND DISCIPLINARY ACTIONS APPEAL RIGHTS / CIVIL CIRCUIT COURTS ~ 5 TO 10 MINUTESFOR QUESTIONSAND ANSWERSATTHE END. MirzaHealthLaw.com Page: 4

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Market Forces Market Forces When it comes to Credentialing and Privileges: Negligent credentialing liability suits are on the rise Hospital s systems affect Communities COVID19 Emergency Credentialing Reduction of CON requirements Shifting payment structures and consolidation of hospitals and practice groups. Increase in outside physicians seeking hospital credentialing Low physician morale & changing practice environment $ TURF WAR! $ MirzaHealthLaw.com Page: 5 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Case Scenario: Change of Patient Notes PHYSICIAN S PERSPECTIVE: Physician with high patient volume Hospital has financial pressure for physicians to submit notes quicker Most notes were entered timely, and physician wants the records to be accurate for purposes of patient care Later records were modified to reflect further thoughts/recollection Physician s Reasoning: All modifications made were in the interest of patient care and accuracy, and it is a rare occurrence DISPUTE PART II APPEALTO OUTSIDE COURT FOR INTERVENTION ALMOSTALEVELFIELD: If there is an adverse decision Exhaust all administrative remedies first File a suit for breach of contract, declaratory action, denial of due process, retaliation claim, employment or civil rights. Must file within the appellate period of the bylaws (usually 30 days) Court can overturn the MEC/Hospital Decision Discovery starts from scratch No personal liability of MEC unless a violation of the civil rights. Expert Witnesses During the process the Physician cannot be removed from privileges. Cost of Litigation is between $30,000 - $100,000, or more. HOSPITAL S PERSPECTIVE: o Submit all notes within 7 days. o The Rules are established o The Process is established o The MEC meetings serve as the conduit to investigate and resolve the medical issues (including disciplinary Action) Hospital s Reasoning: o Hospital has simple rules, the Physician is failing to follow. Even one note change is too much. DISPUTE PART I - MEC ACTION HOSPITAL SARE FAVORED: o Investigation committee investigates o Investigation committee presents the facts to the MEC o MEC Sends a letter specific reasoning o Opportunity to refute Physician Refutes o Circumstances warranting Physician Refuting o Call for hearing/due process o Able to discover documents/interview witness/Deposition s o Hearing Panel and Final Decision affirming or denying MECs decision. o Cost of Doctor defending against MEC action is between $25,000 - $75,000, or more. MirzaHealthLaw.com Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals M MEDICAL EDICAL S STAFF TAFF B BYLAWS YLAWS MEDICAL STAFF BYLAWS GOVERNANDORGANIZEMEDICAL PRACTITIONERSINAFACILITY, DETERMINEHOWCLINICAL PRIVILEGESTOPRACTICEAREOBTAINED, ANDSETTHE REQUIREMENTSFORCONTINUEDMEMBERSHIP. ENSUREQUALITYPATIENTCARESTANDARDSANDPROCEDURES FORCORRECTIVEACTIONS. MEDICAL STAFF BYLAWSGOVERN: 1. MEDICAL STAFFMEMBERS 2. ALLIED HEALTH PROFESSIONALS REQUIREDBYMEDICARE CONDITIONSOF PARTICIPATION, STATE LAWS & ADMINISTRATIVECODES. Counselor On-Call MirzaHealthLaw.com MirzaHealthLaw.com Page: 7

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Medical Staff Bylaws Distinguished from Medical Staff Bylaws Distinguished from Rules & Regulations, and Hospital Bylaws Rules & Regulations, and Hospital Bylaws MEDICAL STAFF BYLAWS AGREEMENTBETWEEN ORGANIZEDMEDICALSTAFFANDTHEBOARDOFDIRECTORS WHICHENSURESASTANDARDOFQUALITYPATIENTCARE. RULES & REGULATIONS AGREEMENTBETWEENMEDICAL STAFFANDTHEBOARDOFDIRECTORSWHICHPROVIDES DETAILEDPROCEDURESANDREQUIREMENTFORMEDICAL STAFFMEMBERS PRACTICEINTHEHOSPITAL-MAYBESPECIFIC TOFACILITY, DEPARTMENT, ORSERVICES. ----------------------------------- HOSPITAL BYLAWS SETFORTHBYTHEHOSPITALBOARDOF DIRECTORSANDREGULATESALLACTORSWITHINTHE HOSPITAL. POLICIESAND PROCEDURES ALSOSETFORTHBYTHE HOSPITALBOARDANDREGULATESTHEOPERATIONSOFTHE ALLPROFESSIONALSAFFILIATEDWITHTHEHOSPITALS. Collaborative efforts between Medical Staff and Hospital Board Govern medical staff specifically Issued by unilateral action of the Board Govern medical and non-medical staff MirzaHealthLaw.com 8 Page: 8

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Medicare Conditions of Participation Medicare Conditions of Participation Set forth minimum requirements for medical staff bylaw terms for Medicare participation. Found in the Code of Federal Regulations: 42 C.F.R. 482.12 (relates to governing bodies) 42 C.F.R. 482.22 (relates to medical staff) MirzaHealthLaw.com 9 Page: 9

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals The Joint Commission The Joint Commission Remember: The Joint Commission a private accreditation body authorized by CMS to evaluate whether a hospital meets minimum standards for participation in CMS and other Federal healthcare programs. *Resources when drafting Bylaws: The Comprehensive Accreditation Manual for Hospitals Elements of Performance The Joint Commission stresses the need for collaboration between the governing body and medical staff in enacting bylaws. Not one body may act unilaterally. The same collaboration is required when seeking amendments to the medical staff bylaws. MirzaHealthLaw.com 10 Page: 10

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Other Federal Laws Other Federal Laws OTHERLAWSGOVERNING MEDICAL STAFF BYLAWSINCLUDE: THE HEALTH CARE QUALITY IMPROVEMENT ACT (HCQIA) IMMUNIZESPEERREVIEW PROCESSPARTICIPANTSFROMADVERSECLAIMS. HOWEVERIMMUNITYDOESNOTEXISTUNDER STATEANDFEDERALFAIREMPLOYMENTLAWS PATRICKV. BURGET, 486 U.S. 94 (1988). *NATIONAL PRACTITIONER DATA BANK (NPDB): SELF-REPORTINGOFMALPRACTICE VERDICTSANDSETTLEMENTS. Remember: Immunity does not apply to violations of state and federal fair employment laws i.e.: Title VII and ADA MirzaHealthLaw.com 11 Page: 11

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Florida Law for Medical Staff Bylaws Florida Law for Medical Staff Bylaws Medical Staff Bylaws are a contractual agreement between medical staff and the hospital/hospital system. Medical Staff Bylaws may not be adopted nor amended through a unilateral decision by either party they must be the result of collaboration between the hospital s governing body and medical staff. The medical staff is tasked with ensuring and maintaining the expected quality of care administered in the hospital. Due process rights for medical staff must be enumerated in the bylaws. Remember: Most states have enacted their own laws regarding medical staff governance and procedures. They tend to be along the same lines as Florida laws. MirzaHealthLaw.com 12 Page: 12

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Medical Staff Membership & Structure Medical Staff Membership & Structure Rights and responsibilities of practitioners vary by category, as specified by the facility s MS bylaws: 1) Active Staff usually have the right to vote, serve on staff committees, and attend meetings. 2) Provisional Staff Similar to active staff, but no right to vote (a few months a year). 3) Consulting Staff They are from other places, no right to vote or participate in staff governance; but may be required to attend department meetings. 4) Honorary Staff no clinical or voting privileges, but just to stay involved professionally. 5) Disaster Privileges Bylaws must identify who is responsible for granting disaster privileges. Remember: Departments (i.e.: general surgery, neuro, ortho, etc.) within a hospital are comprised of staff of various categories (i.e.: general surgery, neuro, ortho, etc.) 6) Telemedicine Privileges MirzaHealthLaw.com 13 Page: 13

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Medical Staff Committees and Officers Medical Staff Committees and Officers Medical Executive Committee (MEC) the medical staff governing committee to which subordinate committees report to, which in turn makes recommendations to the hospital s governing body on behalf of the medical staff. The President of the MEC must be a physician. Other officers on the MEC must be enumerated in the bylaws. Committee/Subcommittee Examples: - Qualifications Committee - Bylaws Committee - Peer Review Committee - Health & Wellness Committee REMEMBER: Medical Staff Subcommittees are a product of the MS bylaws. MirzaHealthLaw.com 14 Page: 14

How to Navigate Peer Review and Medical Staff How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Bylaws in Hospitals Credentialing & Privileging CMS requires all health care providers and practitioners in a hospital to be credentialed & privileged based on the scope of their state laws and licensing, and medical staff category. Credentialing Process of gathering, verifying, and assessing information about the qualifications of physicians and professional practitioners. Privileging is the identification of the services, treatments, and procedures physicians and healthcare professionals may be permitted to provide and perform in the hospital contingent upon them meeting the hospital s and qualification standards. Page: 15 Counselor On-Call - MirzaHealthLaw.com Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Credentialing & Privileging Process Department Chair The Department Chair reviews the applicant s file to verify the position s qualification standards. 3 Primary Source Verification Medical Staff services personnel verify applicant s: - Licenses/education/training - National Practitioner Data Bank - Professional/Peer references Medical Staff Committee Review If the Department Chair approves the applicant s credentials, the MEC or otherwise designated MS Committee reviews the applicant s file. 4 2 Credentialing Application Board of Governors 5 1 - Authorization Form - Release of Liability - Acknowledgment of MS Bylaws. Once recommended by MEC, BOG reviews the file and decides whether to grant appointment and privileges. Page: 16 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Credentialing Pointers: Credentialing Pointers: CMS Requires the bylaws to articulate the review criteria for evaluating applicants: 1. Character 2. Competence 3. Training 4. Experience 5. Judgment Reappointment and renewal of credentials & privileges must be completed at least every 2 years (24 months). Hospital cannot grant privileges it does not have. Telemedicine also requires credentialing. Disaster Privileging MS bylaws must identify who is responsible for granting disaster privileges and the procedure. Rejection of an applicant is a reportable condition to the NPDB. Remember: National Practitioner Data Bank query required at least once every 2 years for every physician or health care provider on medical staff or granted privileges. MirzaHealthLaw.com 17 Page: 17

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Credentialing & Due Process Credentialing & Due Process 42 USC Chapter 117 and 482.11, Florida Statute 395.011, 456.073 and HCQIA Grants Immunity to Hospitals/Committees if: 1. Action was in Furtherance of health care quality, 2. After reasonable Effort to obtain the facts of the matter, 3. After Notice and hearing that was fair to the physician under the circumstances, AND 4. Final Action was warranted under the circumstances. No immunity if Hospital failed to exercise due diligence in credentialing or monitoring (complete and verified information). Caution: If the applicant is denied, it is probably a reportable event. MirzaHealthLaw.com 18 Page: 18

Peer Reviews Peer Reviews Purpose: performance improvement, quality improvement, quality assessment, quality assurance. Net Net it is a physician review of physicians. Concerns/Fallouts are handled by progressive steps: 1. Collegial intervention 2. Education 3. Mentoring 4. Counseling 5. Second Opinion Requirement 6. Proctoring 7. Anger management/Sexual harassment/behavior boundaries course Before peer review most complaints can be resolved with conversations. Embrace the Steps. Page: 19 Counselor On-Call - MirzaHealthLaw.com Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Investigations If practitioner remains recalcitrant then you may begin investigation. 1. 2. 3. An Activity Occurs Either through routine review or specific reporting MEC initiates inquiry/investigation Caution: Physician must not leave during a pending investigation. 42 USC Chapter 117 and 482.11, Florida Statute 395.011, 456.073 and HCQIA: Grants Immunity to Hospitals/Committees if: 1. Action was in Furtherance of health care quality, 2. After reasonable Effort to obtain the facts of the matter, 3. After Notice and hearing that was fair to the physician under the circumstances, and 4. Final Action was warranted under the circumstances. Remember: Escalate through the MEC or Peer Review Committee. Page: 20 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals The Investigation Process Practitioner maybe invited to a fact-finding meeting (not a hearing) to participate in the process investigative interview Investigated by either a committee or ad hoc individuals no specific recommendation is usually made unless requested by MEC Competitors may serve in investigations (check Bylaws first must remain free of fundamental conflicts - fairness) Competitors MUST NOT serve on hearing panel (remain free of economically predatory decisions) Double check and provide assurances of Directors & Officers Insurance Coverage Caution: Specialty-Specific clinical activities may require a same specialty person to serve on the committee. Outside Consultants or non-voting resource of internal physician may be used. Page: 21 Counselor On-Call - MirzaHealthLaw.com Counselor On-Call - MirzaHealthLaw.com

Process of Reviews Investigation Results Medical Staff Executive Committee Reviews and recommends: a. No action, b. Letter or reprimand (no hearing needed), or c. Suspend, reduce, restrict, or revoke privilege (hearing required) 2 Investigating Committee Board of Governors Presents fact-finding and analysis to MEC, Makes no recommendation, unless asked. Ratifies MEC s action if privileges are affected adversely. 3 1 Page: 22 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Suspensions Suspensions Immediate Suspension if failure to take such action may result in an imminent danger to the health of any individual, Precautionary Suspension is the same as Summary Suspension, HCQIA allows for entity to suspend for 14 days to investigate, without notice or a hearing, and it is non-reportable, If suspension is more than 30 days, MUST report to NPDB. Practitioner may seek injunction (speedily), to minimize impact on income or blemish on license, Disciplinary action should be taken in progressive steps. MirzaHealthLaw.com 23 Page: 23

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Case Scenario: Change of Patient Notes PHYSICIAN S PERSPECTIVE: Physician with high patient volume Hospital has financial pressure for physicians to submit notes quicker Most notes were entered timely, and physician wants the records to be accurate for purposes of patient care Later records were modified to reflect further thoughts/recollection Physician s Reasoning: All modifications made were in the interest of patient care and accuracy, and it is a rare occurrence DISPUTE PART II APPEALTO OUTSIDE COURT FOR INTERVENTION: If there is an adverse decision Exhaust all administrative remedies first File a suit for breach of contract, declaratory action, denial of due process, retaliation claim, employment or civil rights. Must file within the appellate period of the bylaws (usually 30 days) Court can overturn the MEC/Hospital Decision Discovery starts from scratch No personal liability of MEC unless a violation of the civil rights. Expert Witnesses During the process the Physician cannot be removed from privileges. Cost of Litigation is between $30,000 - $100,000, or more. HOSPITAL S PERSPECTIVE: o Submit all notes within 7 days. o The Rules are established o The Process is established o The MEC meetings serve as the conduit to investigate and resolve the medical issues (including disciplinary Action) Hospital s Reasoning: o Hospital has simple rules, the Physician is failing to follow. Even one note change is too much. DISPUTE PART I - MEC ACTION: o Investigation committee investigates o Investigation committee presents the facts to the MEC o MEC Sends a letter specific reasoning o Opportunity to refute Physician Refutes o Circumstances warranting Physician Refuting o Call for hearing/due process o Able to discover documents/interview witness/Deposition s o Hearing Panel and Final Decision affirming or denying MECs decision. o Cost of Doctor defending against MEC action is between $25,000 - Counselor On-Call - MirzaHealthLaw.com $75,000, or more. MirzaHealthLaw.com

Progressive Disciplinary Actions (10) Mentoring 3 Education Counseling 4 2 Collegial intervention 5 1 Second Opinion Requirement Page: 24 Counselor On-Call - MirzaHealthLaw.com

Progressive Disciplinary Actions (10) Precautionary Suspension (14 days) without Notice 8 Anything beyond requires NPDB reporting. Anger Management/Sexual Harassment/Behavior Management Course 30+ Days Suspension 9 7 Disciplinary Hearing Privileges Impacted. 10 Proctoring 6 Page: 25 Counselor On-Call - MirzaHealthLaw.com

Medical Staff Privileges Formal Due Process Prehearing Discovery a. Document exchange b. Witness disclosures 3 Notice of Hearing Triggered by responding physician in timely 30 day notice stating time, place, and date of the hearing along with a list of expected witnesses. Hearing Officer Opportunity to be heard and to present evidence and manage hearing panel members. 4 2 Notice of Reasons Hearing Panel 5 1 Must state with specificity the manner in which the physician failed to meet requirements. Determines the sufficiency of the evidence and reasonableness of the recommended disciplinary action, The Hospital side goes through this process regularly. Page: 26 Counselor On-Call - MirzaHealthLaw.com

Next Level of Appeal is before the Courts Discovery a. Document exchange b. Witness disclosures c. Depositions 3 Filing the Law Suit - Claims Mediation is Required Typically within 30 days of adverse decision. Before trial mediation is required. 4 2 Summary Judgment or Trial or Settlement Notice of Appeal & Filing Lawsuit 5 1 Exhaust all administrative penalties, including the internal appeals process, then proceed to Court Page: 25 Counselor On-Call - MirzaHealthLaw.com

How to Navigate Peer Review and Medical Staff Bylaws in Hospitals How to Navigate Peer Review and Medical Staff Bylaws in Hospitals Case Scenario: Change of Patient Notes HOSPITAL S PERSPECTIVE: o Submit all notes within 7 days. o The Rules are established o The Process is established o The MEC meetings serve as the conduit to investigate and resolve the medical issues (including disciplinary Action) Hospital s Reasoning: o Hospital has simple rules, the Physician is failing to follow. Even one note change is too much. DISPUTE PART I - MEC ACTION: o Investigation committee investigates o Investigation committee presents the facts to the MEC o MEC Sends a letter specific reasoning o Opportunity to refute Physician Refutes o Circumstances warranting Physician Refuting o Call for hearing/due process o Able to discover documents/interview witness/Deposition s o Hearing Panel and Final Decision affirming or denying MECs decision. o Cost of Doctor defending against MEC action is between $25,000 - $75,000, or more. PHYSICIAN S PERSPECTIVE: Physician with high patient volume Hospital has financial pressure for physicians to submit notes quicker Most notes were entered timely, and physician wants the records to be accurate for purposes of patient care Later records were modified to reflect further thoughts/recollection Physician s Reasoning: All modifications made were in the interest of patient care and accuracy, and it is a rare occurrence DISPUTE PART II APPEALTO OUTSIDE COURT FOR INTERVENTION: If there is an adverse decision Exhaust all administrative remedies first File a suit for breach of contract, declaratory action, denial of due process, retaliation claim, employment or civil rights. Must file within the appellate period of the bylaws (usually 30 days) Court can overturn the MEC/Hospital Decision Discovery starts from scratch No personal liability of MEC unless a violation of the civil rights. Expert Witnesses During the process the Physician cannot be removed from privileges. Cost of Litigation is between $30,000 - $100,000, or more. Counselor On-Call - MirzaHealthLaw.com

Questions about Peer Review, Medical Staff Bylaws? Call or Email MHL 1 2 Review Key Documents Get A Free Legal Fee Estimate 3 4 Get Legal Issues Resolved MIRZA | Healthcare Law Partners Thank You For the Article go to : https://mirza-healthcare-law.lawlyticsapp.com/hospital-medical-executive- committee-mec-and-the-peer-review-investigation-and-the-hearing- process?preview=true&site_id=3423 Ben Assad Mirza, Esq. C/T: (954) 445-5503 BAM@MirzaHealthLaw.com Counselor On-Call - MirzaHealthLaw.com