healthlaw reference

- March 2005 -

The 10 Biggest Mistakes Physicians Make In The Credentialing Process

By Michael A. Cassidy, Esq.

Physicians often ignore crucial early warning signs in the credentialing process.  Physicians also sometimes ignore the fact that the credentialing process is a structured legal process which can trap the unwary and penalize the careless. Here are 10 mistakes physicians make during the process, along with advice on how to prevent them.

1. The “Cover-Up”:  Misrepresenting or Attempting to Hide Prior Adverse Peer Review Actions

By far the most serious credentialing mistake any physician can make is the “Cover Up”.  Failing to disclose a prior adverse peer review action, especially when that fact will be discovered through a data bank query or a reference check, creates almost insurmountable problems.  There are several reasons why this mistake is so serious:

a. In a profession where ethics are both important and valued, the cover up itself is a very negative event.

b. A misrepresentation is an objective, clear-cut violation of the credentials application process.  Most applications have a statement or series of questions concerning prior adverse peer review actions.  If you fail to disclose, then that nondisclosure is itself a violation.  The incident happened, you were asked about it, you lied.  There are no subjective issues, and no defenses.

c. Lying about your record taints your credibility and therefore your explanation of any underlying events precipitating the peer review action.  The underlying event cannot now easily be portrayed as politics, or professional disagreement, or retaliation by competitors, because the veracity of your position is now in doubt.

d. Because of the National Practitioners Data Bank, JCAHO emphasis on quality credentialing, and the “small world” of the medical community, deception is almost always discovered.

Action Step: Answer the questions on medical staff applications correctly. Do not adopt unreasonable definitions of the questions just to provide a questionable excuse for nondisclosure.  Take your time and answer each question carefully.

2. Failure to Report Adverse Peer Review Actions

Many medical staff bylaws and third party participation agreements require physicians to report adverse peer review actions (e.g. revocation, suspension, or voluntary relinquishment of medical staff membership, clinical privileges, or state or DEA licenses and exclusion from third party programs).

Although not as serious as affirmatively or actively concealing adverse peer review actions, the failure to report these adverse actions when required to do so is still a serious mistake for two reasons:

1. Although perhaps inadvertent, it nevertheless smacks of the dreaded Cover Up.

2. The failure to report is itself an independent, separate, and easily established clear and objective violation of the bylaws or agreements.  It taints your reputation.  In situations where the “old M.D.s’ network” or the new CEO is looking to remove you, or when the alleged subjective violation is difficult to prove, some disciplinary action for this type of violation is an easy determination.

Although the violation itself may have nothing to do with quality of care or your professional ability, it could still result in your loss of membership or reduction of privileges.

Action Step:  When an adverse peer review action occurs, you should review the medical staff applications and participation agreements you have signed.  Better yet, you should have a list of the applicable requirements.  You will receive a copy of the NPDB Report.  If appropriate, you should submit a supplemental statement (See Mistake #3).  In some situations, you are best served by sending a brief notice that may just convey the data bank report and the supplemental statements.  There is no harm in sending the NPDB Report because all queriers will see it anyway, and the voluntary production of the report demonstrates that you have nothing to hide.  If the reported incident is a serious problem, you may want to have a full explanation prepared with supporting exhibits, together with letters of reference, to diffuse the situation.

3. Failure to Monitor or Respond to Data Bank Reports

Reports to the National Practitioners Data Bank should be monitored and contested when appropriate.  Data Bank procedures permit physicians to:

a. Request the reporting entities to correct erroneous reports;

b. Utilize the administrative procedures of the Department of Health and Human Services to challenge incorrect reports; and

c. File an individual supplemental statement.

Action Step:  When notified of an adverse NPDB Report, utilize all of the procedural safeguards available.

4. Believing “Collegial Intervention” is Collegial

Collegial intervention can be a trap for the unwary.  Whenever you are approached by an “official” member of the medical staff to discuss quality assurance or quality improvement issues, especially in relation to your cases or conduct, you should both embrace the opportunity as a professional and suspect the worst.  Collegial intervention can be used as an excuse by the medical staff or the hospital to initiate or conduct an investigation before you even know it is happening - without providing any of the due process protections provided by the bylaws with respect to formal investigations.  What you perceive as just a series of casual conversations could instead be portrayed as a concerted effort by the organized medical staff to address or investigate a problem you did not even realize you had.

Action Step:  Be careful.  Ask the inquiring medical staff/hospital representatives if this is an “official visit”.  Check your medical staff and credentialing file (See Mistake #9).

5. Neglecting the Opportunity to Secure Corroborating Witnesses

Collegial intervention, as well as initial investigations, usually start with a meeting of some type.  This is not the place to “lawyer up”; that is both unprofessional and unnecessarily adversarial, and usually prohibited by the bylaws.  (See Mistake #10)  The intent of the bylaws is usually to provide a professional and non-adversarial environment to address minor issues before they become major problems.  However, you should request that you be accompanied by another physician, e.g. a partner, another department member, etc., just so you have a witness that can corroborate the facts if necessary.  If you can’t have a witness, then you should either record the meeting as long as you have obtained the consent of the other party or prepare a written memo immediately after the meeting and send a copy to the person responsible for conducting the meeting to confirm the facts. Using a professional and non-accusatory memo to confirm the facts is especially helpful when done before the battle-lines harden.

Action Step:  Secure potential witnesses and keep accurate records so you are not “unarmed” in future confrontations.

6. Failure to Appreciate that any Peer Review Activity Should Be Taken Seriously

Physicians have an unfortunate tendency to dismiss the seriousness of the initial stages of peer review investigations as unnecessary and unwelcome administrative intrusions that will be resolved when the real doctors become involved.  While this may have been true at an earlier time - maybe - it is certainly not true now.  Liability for negligent credentialing and JCAHO medical staff standards make credentialing a serious business all the time, not just when the controversy erupts into a medical staff hearing.

Credentialing professionals take their responsibility quite seriously, and these “professionals” are now well trained.  Gone are the days when credentialing was just another bookkeeping duty of the medical staff secretary.  By the time the credentialing professionals first raise an issue with the physician, their homework will have been done and they will have the pertinent facts, witnesses and medical records.  Unless you investigate and prepare your position and defense with the same diligence and zeal as your “prosecutors”, you will find yourself at a significant disadvantage.  You will be starting with a handicap that you may well not overcome.  Do your homework.

Action Step:  Appreciate the possible adverse consequences of any peer review action from the very first stage.

7. Whistleblowing In Retaliation Is Generally a Bad Idea

Physicians sometimes confuse patient advocacy with disruptive behavior, sometimes intentionally.  It is almost never effective, on a long term basis, to threaten exposure of quality assurance concerns or issues as a means to justify your own problem cases. 

First and foremost, other bad outcomes do not change your outcomes.  However, one clear exception to this policy is when you are being held to a different standard.  But even in this situation, the identity of other physicians need not be disclosed if the critical facts can be discussed without identification.

Second, your conduct could create unwanted liability for you, such as slander or defamation.  The peer review statutes of most states immunize the participants, although some status may have overlaying good faith requirements.  This immunity against liability for participation in the peer review process usually applies only to charges and disclosures made as an integral part of the peer review process, such as statements or written communications to a quality assurance committee.  Immunity may not apply to unprotected communications, such as impassioned speeches in the doctors’ lounge.

Finally, there is no surer way to precipitate retribution than to cast the first stone. 

Action Step:  Follow your mother’s advice:  people who live in glass houses should not throw stones!  If you don’t have anything nice to say, don’t say anything!

8. Conspiracy Theorists Only Win In the Movies

A variation of the misguided whistleblowers mistake is maligning the motives of others.  The best defense might be a good offense on the gridiron but, unless you have solid facts, blaming your situation on scheming competitors, jealous physicians, and clueless hospital staff is not a winning strategy.  Although truth is always an exception to any warning, and there are a significant number of medical staff cases where the conspiracy and the liability have been proven, all cases are unique.

Action Step:  Do not create an entire class of adversaries and undermine your legitimate defenses by making unfounded accusations.

9. Neglecting to Monitor Your Own Medical Staff Records

You should not wait until a peer review action is threatened to inspect your medical staff or credentials file.  When your reappointment application is being filed, you should go to the medical staff office and request to review the file.  Your explanation can be simply that you heard it was a good idea to review your record at the times of each reappointment.

Some medical staff offices might keep separate credentials and peer review files; you should ask to see both.  The hospital might object to allowing you to review the file, arguing that “peer review laws” make such information confidential.  Depending on the state, this may or may not be true.  Many peer review protection acts, including the federal Health Care Quality Improvement Act of 1986 (HCQIA), which established the National Practitioners Data Bank, do provide immunity for those who participate in the peer review process, but they don’t make the records confidential from you.  If this claim is made, ask your medical staff to formally review this issue with separate counsel.

Action Step:  Regularly monitor your medical staff and credentials files.

10. Failing to Retain an Experienced Lawyer

This mistake is one of that group of mistakes falling in the general category of unpreparedness.  When investigations or inquiries begin, physicians mistakenly believe that legal counsel at this early stage is inappropriate or unnecessary, however - that is how some of the other mistakes happen.  Even if you cannot be represented by a lawyer in the meeting or during the interview process, that does not mean you should not know your rights.  We wouldn’t have a list of the 10 biggest mistakes physicians make in this area if they were effectively represented by counsel.

Action Step:  When you think you need legal advice, it may already be too late.  Consult counsel as soon as you realize that anything unusual is happening.  Too early is an inconvenience; too late is a serious problem.

There is a common thread to these mistakes, and that is the failure or refusal by physicians to treat credentialing issues as potentially serious problems.  Gone are the days when the medical staff was willing to handle these issues informally - until they become an issue of critical proportions - and gone they should be, provided the credentialing process is also prepared to acknowledge that bad outcomes happen to good doctors.  However, since some processes will not differentiate unavoidable bad outcomes from actual malpractice, and therefore might blindly pursue adverse peer review sanctions, physicians will unfortunately need to be vigilant in protecting themselves in this new credentialing climate.

Michael A. Cassidy is Chair of the firm’s Health Care Practice Group. For more information on this topic, please contact Mike at 412.594.5515 or via e-mail at mcassidy@tuckerlaw.com.

Medical Certifications Under The FMLA - An Important Tool For Employers

By Scott R. Leah, Esq.

In adopting the Family and Medical Leave Act (FMLA), Congress sought to allow employees to strike a balance between their work and family life by taking reasonable unpaid leave for medical reasons, for the birth or adoption of a child, or for the care of a sick child, spouse or parent.  However, the FMLA is unquestionably a burden on employers who have to arrange for someone to cover the duties that would have been performed by the employee who is on FMLA leave.  Because of this, it is important that employers ensure that no employee is improperly taking FMLA leave, and one of the best tools for doing so is the medical certification procedure.

WHAT IS A MEDICAL CERTIFICATION?

The FMLA provides that an employer may require that an employee’s leave due to a serious health condition (either their own or their spouse, child or parent) be supported by a certification issued by the health care provider of the individual with the serious health condition.  That certification must, among other things, identify the serious health condition at issue, how the medical facts meet the criteria of the definition of a serious medical condition under the FMLA, and provide the date the serious health condition commenced and its probable duration.

HOW IT WORKS

When an employee elects to use FMLA leave, the employer must provide written guidance to the employee con-cerning his or her FMLA leave rights andobligations.  Any requirement for written medical certification, and the consequences of a failure to provide adequate medical certification, must be in that written guidance.

If the employer chooses to require medical certification, it must provide the employee with a form to be filled out by the health care provider.  Because there are regulations governing what is an appropriate medical certification, we recommend using the form that the Department of Labor has developed for this purpose.

The employer must request that medical certification be provided at the time that the FMLA leave is requested or within two business days thereafter.  If the employee’s leave was foreseeable, and at least 30 days’ notice of the request for FMLA leave is provided, he or she should provide the certification prior to the beginning of the leave.  If this is not possible, the employee must provide the requested certification within the time frame requested by the employer (which must be at least 15 calendar days after the employer’s request).

HOW IT PROTECTS EMPLOYERS

If an employee fails to provide medical certification, the employer may delay the taking of foreseeable FMLA leave until the certification is provided.  If the FMLA leave is not foreseeable, the employer may delay the continuation of FMLA leave until certification is provided and, if none is ever provided, may treat all of the leave as non-FMLA leave. 

If the employee provides a medical certification, but the employer doubts the validity or sufficiency of the certification, the employer may require the individual with the serious health condition to obtain a second opinion from a physician of the employer’s choice.  If the certifications do not ultimately establish the employee’s right to FMLA leave, the employer may deny the FMLA leave.

An employer may also request recertification if the serious medical condition is for pregnancy or for chronic or permanent long-term conditions under continuing supervision of a health care provider.

CONCLUSION

Medical certification, if done properly, can be a valuable tool for an employer that is concerned as to whether an employee is eligible for the FMLA leave being requested. It is important that the employer strictly follow the procedures for medical certification set forth in the FMLA or face potential liability.  The above is only a general summary of the medical certification procedure, and is not intended to be an exhaustive explanation of the exact procedures an employer must follow. 

Scott R. Leah is an attorney in the Health Care Practice Group. For more information on this topic, please contact Scott at 412.594.551 or via e-mail sleah@tuckerlaw.com.

Gainsharing Advisory Opinions

By Michael A. Cassidy, Esq.

The Office of the Inspector General (OIG) has recently released three Advisory Opinions opining that certain gainsharing arrangements will not be prosecuted under various federal health care laws.  In addition to the basic Fraud and Abuse laws and Anti-Kickback statutes, there is a federal statute prohibiting the payment of incentives in order to withhold or reduce medically necessary care.

The label “gainsharing” is actually misleading, because it invokes ideas of sharing additional gains.  Actually, in most situations, gainsharing actually involves programs or processes designed to reduce costs, and the programs distribute portions of the cost savings which fall to the bottom line, i.e, profits.

When this concept was first proposed, the OIG issued a Special Advisory Bulletin cautioning against gainsharing and advising that it would violate the Civil Money Penalties law (CMP). 

These recent Advisory Opinions now reverse that course, but they do not authorize random distributions of cost saving arrangements.  The three Advisory Opinions are remarkably similar, and they have the following components in common:

• They all involve a hospital, one or more groups of single specialty physicians (surgeons, cardiac surgeons, and cardiologists), and a third party administrator.  The administrator is not identified, but it is described as a third party hired or intended to be hired by the hospital on a fixed/fair market value basis to identify administered cost saving opportunities.

• The cost saving opportunities involve similar ideas, i.e., products standardization, providing availability of certain surgical supplies and devices that come on a pre-packaged basis without actually opening the products until necessary to reduce waste, and the substitution of less expensive surgical products which are described as items without “appreciable clinical significance.”

• Distribution mechanisms that require clinical monitoring by the program administrator, involving both minimum and maximum limitations to avoid incentives for either extreme savings or extreme utilization, and distribution to the participating physician groups over a limited period of time and on a per capita basis to avoid individual incentivization.

The analysis by the OIG in the Advisory Opinions is basically identical.  The Opinions recite the applicable federal statutes, but restatement of that analysis is unnecessary for the purposes of this newsletter.  All three Advisory Opinions conclude that the gain sharing programs, although potentially violative of the federal statutes, will not be prosecuted as violations of those statutes because of the following eight conclusions:

1. The programs are very specific so that the financial and clinical outcomes provide measure and accountability.

2. The OIG has been assured that there is credible medical support for the assurances that the programs will not jeopardize either the quality or availability of medical care.

3. The programs do not discriminate on the basis of insurance program coverage.

4. The programs all include safeguards against excessive reduction in medical care by providing minimum levels after which no savings will be measured or distributed.

5. There is no restriction on the ultimate availability of any surgical products or devises.

6. The programs provide for full disclosure to the patients.

7. The programs are limited with respect   to time and potential savings.

8. Finally, all savings are distributed on a per capita basis so there are no individual incentives for physicians.

The text of the Advisory Opinions are available via the Tucker Arensberg Web site, www.tuckerlaw.com, by linking to our Healthcare E-mail Newsletter “Healthcare Law Briefs” distributed on February 18, 2005.

Michael A. Cassidy is Chair of the firm’s Health Care Practice Group. For more information on this topic, please contact Mike at 412.594.5515 or via e-mail at mcassidy@tuckerlaw.com.

HIPAA Security Regulations Deadline Looms

A new set of regulations, known as the “Security Regulations” will require an amendment to your practice’s compliance plan. The compliance deadline is April 20, 2005 for health care providers.

First, the Security Regulations require administrative safeguards with respect to electronic protected health information or “EPHI”, under which a covered entity is required to implement policies and procedures that prevent, detect, contain and correct security violations.  Second, the Security Regulations require physical safeguards, under which a covered entity is required to implement policies and procedures to limit physical access to its electronic information systems and the facility or facilities in which such systems are housed, while ensuring that properly authorized access is allowed.  Third, the Security Regulations require technical safeguards, under which a covered entity is required to implement technical policies and procedures for electronic information systems that maintain EPHI to allow access only to those persons or software programs that have been granted access rights.  Finally, written contracts between the covered entity and its business associates must require, among other things, that the business associates implement safeguards that protect the EPHI used by the business associates and that the business associates ensure the same of any of their subcontractors. 

For more information, please contact Michael A. Cassidy at 412.594.5515 or via e-mail at mcassidy@tuckerlaw.com.

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