Medical Staff Credentialing, Privileges & Peer Review
At the Law Office of Kevin O’Mahony, we represent hospitals, medical staffs, medical groups, and licensed professionals in matters relating to credentialing, privileges and peer review activities. We understand that the goal of every hospital and healthcare organization is to promote patient safety and deliver high quality care through their medical professionals. We use our experience, judgment and assessment of the facts and circumstances to offer practical general counsel about how to achieve these goals in a manner that complies with the law.
Specifically, we advise hospitals about their obligations under and matters relating to their medical staff bylaws. We also represent individual physicians, dentists, nurses and allied health professionals, as well as physician groups, multi-specialty clinics, and other healthcare entities in the areas of credentialing, quality assurance and peer review.
We assist medical staffs and providers by preparing bylaws and policies to govern credentialing and peer review activities that comport with the requirements of state and federal laws, including the Health Care Quality Improvement Act and accreditation requirements of the Joint Commission on Accreditation of Healthcare Organizations and other accrediting agencies. We also advise and assist clients with issues related to protection and sharing of peer review and credentialing documents and information potentially covered by medical peer review or other privileges.
We represent individual practitioners and provider groups in connection with facility administrative proceedings and hearings concerning the qualifications of providers, professional competence, and professional/personal conduct. We advise clients about their rights and duties in connection with the process of application and re-application of providers for privileges. We also advocate for clients appearing before administrative panels and state licensure boards, and defend clients in peer review proceedings that could result in reports to the National Practitioner Data Bank and state agencies, including the Georgia Composite Medical Board and other professional licensing boards.
The Relationship Between Hospital & Medical Staff*
The term “Medical Staff” in the context of a hospital refers to an organized body of licensed physicians (MDs and DOs), dentists (DDSs and DDMs), and other healthcare providers (including podiatrists and psychologists), who are authorized by state law and by a hospital through its medical staff bylaws to provide medical care to patients within the hospital. Some hospitals include allied health professionals (e.g., nurse practitioners, physician assistants, surgical assistants, and doctors of pharmacy) and postgraduate trainees (e.g., residents and fellows) within the term “medical staff,” although hospitals are not legally required to include these non-physician practitioners on their medical staff. Moreover, although a significant portion of the hospital’s medical staff may be employees of the hospital, the majority usually are not employees. They are often independent healthcare providers who have been credentialed and granted privileges to render medical care at the hospital. Whether a member of a hospital’s medical staff is an employee or an independent contractor can have significant legal consequences (e.g., vicarious liability for the hospital if a member is an employee) and typically requires legal analysis of both state and federal law setting forth various relevant factors. For example, the Internal Revenue Service has a number of publications that provide guidance on this topic. (See, e.g., “Topic No. 762 Independent Contractor vs. Employee,” at https://www.irs.gov/taxtopics/tc762. See also the Healthcare & Physician Contracts page of this website for additional information regarding this issue.)
The medical staff may be deemed “open” if the hospital is continually accepting applications for new members, or “closed” if the hospital has determined that only a finite number of providers will be allowed to become members and applications for membership will be accepted only when vacancies exist.
A healthcare provider’s membership at a hospital is governed by the hospital’s bylaws, which are approved by the hospital’s governing body. Each hospital defines the purpose of the medical staff membership in its bylaws that often includes one or more of the following definitions:
- to provide quality medical care to patients admitted to or treated in the hospital consistent with the applicable standards of care;
- to enhance and improve the quality of care, including patient safety, effectiveness, efficiency, and the equity of care for all patients admitted to or treated in the hospital;
- to provide graduate, postgraduate and continuing education and maintain educational standards;
- to support and promote medical research while maintaining and ensuring appropriate protection of human subjects;
- to be accountable to the Board of Trustees for the appropriateness of the professional performance and ethical conduct of its members;
- to promulgate and maintain such rules, regulations, and internal organization necessary to allow the medical staff to discharge its responsibility within the hospital in an organized and effective manner; and
- to advise the Board of Trustees and Hospital Administration on medical and related matters, including assisting the hospital with its compliance plan.
Under a hospital’s bylaws and the standards promulgated by the Joint Commission [f/k/a “Joint Commission on Accreditation of Healthcare Organizations (JCAHO)”], a healthcare provider’s membership at a hospital must be reviewed for reappointment at least every two years. Such review and reappointment is based on ongoing monitoring of specific information regarding the healthcare provider’s performance, medical judgment, clinical skills and professional behavior, and is described in more detail in the hospital’s bylaws and/or credentialing manual. Reappointment is the process of reevaluating the healthcare provider’s competency to ensure that patients in the hospital are receiving quality care.
The information reviewed during the reappointment process is usually only an updated version of the information reviewed during the initial membership appointment. However, if concerns arise regarding the healthcare provider’s performance, medical judgment, clinical skills, or professional behavior during the last two years of membership, additional information may be sought and confidential consultations may be had with departmental heads/staff to further assess such concerns. The medical staff bylaws and its fair hearing provisions contain the healthcare provider’s due process rights in such circumstances. If information regarding a healthcare provider’s activity at a hospital is sparse due to inactive use, the hospital may, with written authorization of the healthcare provider applying for reappointment, seek information from other hospitals where the healthcare provider was more active to help the hospital assess the healthcare provider’s competency.
Credentialing & Privileges
Whether a hospital is public or private, it has two core responsibilities with regard to its medical staff. The hospital’s board of directors (or its equivalent and committees to which it delegates) is responsible for both credentialing/privileging its medical staff, and implementing a timely, fair and thorough peer review process. “Credentialing” generally refers to the medical credentialing process and criteria applicable to, for example, a physician’s participation within a health plan or appointment to a hospital’s medical staff. Credentialing also refers to a hospital’s documenting medical staff applicants’ licensure, education, skills, knowledge, training and ability to practice. “Privileging” refers to the scope and content of professional services the physician is authorized to provide within the hospital.
The credentialing and privileging process is an important way for hospitals and other healthcare facilities to verify the qualifications of clinical practitioners and protect the public against unqualified individuals engaging in practices or procedures for which they are not adequately trained or qualified. Although details of credentialing/privileging processes vary depending upon the facility, location, medical specialties and particular circumstances involved, the process typically involves numerous steps, including:
- Providing and keeping updated contact information for all providers on staff;
- Providing a checklist of credentialing information required of physicians applying for privileges at a facility or practice site;
- Requiring peer references and checking those references;
- Performing background checks and verifying accuracy with listed references, former employers, federal agencies, state licensing boards, medical associations and specialty certification boards;
- Investigating details of any malpractice claims;
- Submitting the credentialing application to the facility’s governing body for final review and a decision on whether to approve the application for privileges.
Some states, such as Georgia, through their medical boards and other hospital and healthcare associations, have developed standardized forms to facilitate efficient credentialing processes across various disciplines. Although not required to participate, most Georgia hospitals and health plans usually accept the Georgia Uniform Healthcare Practitioner Credentialing Application Form and Uniform Healthcare Practitioner Credentialing Reappointment Form.
Medical staff membership is not synonymous with clinical privileges in that a member of the medical staff is not entitled to perform procedures or treat patients simply by virtue of being a member of the medical staff. To perform procedures or treat patients at a hospital, a healthcare provider must first become a member of the hospital’s medical staff. To do so, a healthcare provider must obtain, complete, and submit an application for membership. Once the application is accepted (e.g., the hospital has an opening for the specialty and class of provider seeking membership), it must go through the credentialing process as discussed below. Once the healthcare provider has been vetted through the credentialing process, his/her request for clinical privileges must be reviewed and a determination made as to which clinical privileges will be granted. Such privileges will dictate which procedures and treatments the healthcare provider has the hospital’s authority to perform at the hospital.
The credentialing process is most often set forth in a document referred to as a credentialing manual that describes the procedures used by the hospital to review and verify the credentials of the healthcare provider applying for medical staff membership to ensure that he/she is competent and qualified to perform the areas and levels of patient care sought in the application. The credentialing manual sets forth what type of information will be used to assess and evaluate the healthcare provider in terms of his/her qualifications to become a medical staff member and to maintain his/her medical staff membership. The credentialing manual also typically describes the procedures used by the hospital to modify and/or renew privileges for existing medical staff members. There are different categories or levels of medical staff membership such as Active, Affiliate, Temporary and Honorary. Such categories or membership levels distinguish between what clinical privileges, if any, will be available to the healthcare provider.
Credentialing can be a very lengthy process. As such, over recent years, an increasing number of hospitals have relied upon outside, third-party centralized data collection and storage entities to gather and verify much of the information needed from the applicant/healthcare provider. The use of such entities not only benefits the hospitals by significantly reducing the administrative costs and time associated with gathering and verifying the large amount of information needed for credentialing, but also benefits the healthcare provider because he/she need only submit the information once to the entity as opposed to every hospital to which he/she is applying for medical staff membership/privileges. The most well-known of these entities is the Council for Affordable Quality Healthcare (“CAQH”), which operates the Universal Provider Datasource (“UPD”). The CAQH’s UPD is supported by the American Medical Association, the American Academy of Family Physicians, the American College of Physicians, the Medical Group Management Association, America’s Health Insurance Plans, the American Health Information Management Association, and other healthcare provider organizations.
The Credentialing, Privileging & Payer Enrollment Processes
Whenever a physician or allied healthcare professional changes employment or seeks new privileges, he or she is required to go through a credentialing process. For residents and fellows completing their medical training, credentialing is one of the first steps leading toward their being able to practice as independent or attending physicians.
The credentialing process involves verification and assessment of a physician’s or other provider’s education, training and experience. It enables patients to trust that their health is in good hands, and it allows hospitals and other healthcare employers to have confidence in their physician-employees, and physicians to have trust in their peers or colleagues. Credentialing also plays a significant part in physician health plan enrollment so that payment for services can be received.
Upon accepting a new position, physicians are required to fill out extensive credentialing applications. For residents or experienced physicians who anticipate accepting a new position in the near future, it is wise to have all necessary information and supporting documents gathered and ready for submission as soon as possible.
That information generally includes:
- Photo identification and curriculum vitae
- Federal, state, and professional licenses and registrations
- Education, training, board eligibility or certification, Drug Enforcement Administration registration, etc.
- Work and medical staff history
- Explanations for any gaps of 30 days or more in education, training, or work history
- Clinical privilege history
- Clinical report cards and performance reviews
- Malpractice insurance carriers and any claims history
- Names and emails of peers who can provide references
Credentialing traditionally is a three-phase process. The first is credentialing, during which qualifications are verified and assessed. The second is privileging, which gives the physician or other licensed professional permission to perform specific procedures or provide specific services at an institution based on his or her credentials. And the third is enrollment, which allows the physician or other licensed professional to bill and be paid for those specific services (usually by entering into insurance plans, networks, Medicare, Medicaid or other third-party payer programs, so that the provider and facility can be paid for services rendered to patients by that provider).
Credentialing is carried out through a process known as primary source verification, where the organization doing the credentialing contacts the original source to verify that the information and documentation submitted are accurate as represented by the applicant. Although the formal credentialing process is initiated by the credentialing organization, the necessary preparation starts with the individual provider. He or she is responsible for getting the required information to the credentialing person who will be overseeing the process. In most healthcare organizations, this will be a designated credentialing expert, such as a medical staff coordinator for larger facilities, or a practice manager or business office manager for smaller facilities and private practices.
Even when an applicant’s curriculum vitae looks impeccable, a crucial step in the credentialing process is a background check. The four most frequently used data banks for background checks on healthcare providers are:
- The National Practitioner Data Bank (“NPDB”)
- The Board Action Data Bank of the Federation of State Medical Boards (“FSMB”)
- The U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) Exclusion Database
- The American Medical Association (“AMA”) Physician Masterfile
In addition, healthcare organizations should verify the status of an applicant’s staff privileges at other hospitals and healthcare facilities listed on the application, obtain from the applicant peer references, and verify recommendations. They also should follow up with the applicant for an explanation of any gaps in education, training or work history, and any other items requiring additional information that might have arisen during the credentialing process.
Background checks help protect patients from incompetent medical practitioners and generally will reveal any adverse actions taken or sanctions issued against a physician or other licensed professional. Since some applicants may fail to include crucial information in their applications, all of the above steps are important for a healthcare organization to be sure it has done its due diligence.
One of the biggest issues that often arises in credentialing is when applicants or their prior institutions or employers provide incomplete information. When the credentialing expert receives partial, incomplete or missing information, it creates delays and often considerable back and forth, which can be time-consuming. Some organizations use credentialing software to expedite the process by archiving information, so that the provider only has to furnish information once (as long as nothing changes), regardless of how many times it is needed for credentialing, privileging or payer enrollment. However, the individual provider still is responsible for submitting complete information, and the credentialing expert is responsible for keeping it organized and current so that the process can move forward efficiently.
Once a provider’s information has been collected and verified, it is sent for review by the medical staff committee or other governing body. This committee varies from facility to facility, depending on size, but it typically consists of multiple members. In the case of a hospital or larger organizations, the medical staff committee usually consists of department heads. For smaller healthcare or private-practice organizations, the process is typically be overseen by a practice manager or human resources administrator.
In hospitals, the credentialing committee typically sends the application and all of its findings and recommendations to the Medical Executive Committee (“MEC”) that then makes a recommendation for approval or disapproval by the hospital’s Board, which is often the final decision maker. A disapproval by the MEC typically triggers an applicant’s fair hearing right, which means the applicant has a right to request a hearing to appeal the adverse recommendation. A staff privileges reappointment or renewal application usually involves a similar but somewhat abbreviated process, and it may vary from hospital to hospital.
Credentialing and recredentialing applications typically contain a section in which the applicant indicates the type of privileges he or she is seeking. In hospitals, there are basically two types of privileges – admitting privileges and clinical privileges. Admitting privileges allow a physician to admit patients in a hospital and serve as the patient’s attending physician during the hospitalization. Clinical privileges allow a physician or other licensed professional to provide specific patient care services in the hospital to patients based on the healthcare provider’s own training, experience and skills, as long as the services are consistent with the hospital’s mission and needs. The types of clinical privileges available and granted to a individual healthcare provider depend on the provider’s specialty and departmental affiliation. For example, the privilege to perform a certain surgical procedure may be available to a surgeon but not to an internist applying for clinical privileges at a hospital.
Decisions regarding which clinical privileges are granted to which applicants are crucial parts of the credentialing process. Those decisions are based on many factors, including patient needs in the community served by the facility, the complexity and levels of care needed by those patients, and documentation of training and demonstrated competency in the performance of the requested procedures or services by applicants. Sometimes, provisional privileges are granted to allow a healthcare provider to perform certain procedures under the supervision of a proctor until such time that the applicant demonstrates a certain level of competency and is deemed capable of performing such procedures safely without supervision. The decision whether to grant or deny privileges requested by a healthcare provider generally follows the same path as a decision whether to grant or deny medical staff membership at a hospital. Recommendations are made by a credentialing committee and MEC before the Board makes the final decision. Additionally, for granting clinical privileges, input from the applicable department head or chair is also sought and considered.
Hospital & Medical Staff Bylaws, Rules, Regulations, Policies & Procedures
Bylaws are a framework and rules adopted by an organization for the governance of its members and the management of its affairs. A hospital’s bylaws are the corporate bylaws required under state law in all jurisdictions for business corporations, whether for profit or not for profit, to organize their business. Medical staff bylaws are a document approved by the hospital’s board, considered a contract in some jurisdictions, that establishes the requirements for the members of the medical staff (which includes allied health professionals) to perform their duties, and standards for the performance of those duties.
In general, bylaws should outline the administrative structure of the medical staff, how high-level decisions are made in the organization, core due process rights of members, and the mechanism for adoption and amendment of governing documents. When crafting bylaws, it is also wise to ask whether a particular matter could be better addressed in a medical staff policy or procedure. Because medical staff policies can typically be modified quickly by action of a medical executive committee, they are more flexible and adaptable documents. If a topic or matter is likely to change little over time, it should be considered for inclusion in bylaws. If a structure, issue, or process is likely to need frequent modification, it generally will be more appropriate to address it in policy form.
Some medical staffs create compilations of such policies and aggregate them by topic in manuals. For example, some medical staffs adopt a “Credentials Policy and Procedure Manual,” which contains their credentialing policies, or an “Organization and Functions Manual,” which spells out the details of committees and their activities.
Medical staffs that must comply with Joint Commission standards generally require much more detailed bylaws than staffs accredited by other entities. The most recent version of the Joint Commission MS. 01.01.01, which provides the framework for constructing, writing and implementing bylaws, contains over thirty elements for hospital compliance. For a hospital to be Joint Commission-accredited, it must comply with those standards, and create, maintain and adhere to certain policies and procedures relating to the medical staff.
The Joint Commission has developed templates to evaluate and score the requirements in the Medical Staff (“MS”) chapter of the Comprehensive Accreditation Manual for Hospitals and Comprehensive Accreditation Manual for Critical Access Hospitals to increase survey consistency and scoring of MS requirements. Surveyors (including physician surveyors) use the templates during current triennial surveys to focus on standards and elements of performance within the MS chapter, including the following topics:
- Medical staff bylaws
- Structure and role of medical staff executive committee
- Medical staff role in oversight of care, treatment, and services
- Medical staff role in graduate education programs
- Medical staff role in performance improvement
- Credentialing and privileging
- Appointment to medical staff
- Evaluation of practitioners
- Acting on reported concerns about a practitioner
- Fair hearing and appeal process
- Licensed independent practitioner health
- Continuing education for practitioners
- Medical staff role in telemedicine
During organizations’ triennial surveys, organizations are asked what, if any, changes have occurred to their MS bylaws, rules or regulations, and policies over the past three years. If no changes are reported, those specific pieces of the MS requirements will not need to be surveyed. However, focused professional practice evaluation, ongoing professional practice evaluation, and other components of credentialing continue to be evaluated during every triennial survey. If changes have occurred, MS bylaws, rules or regulations, and policies also are evaluated.
In addition, to receive Medicare and Medicaid payment, Medicare’s Conditions of Participation (“CoPs”) require hospitals’ bylaws to comply with federal standards. The Centers for Medicare & Medicaid Services (“CMS”) requires hospitals to have an organized medical staff that operates under bylaws approved by the governing body that is responsible for the quality of medical care provided to patients by the hospital. The CoPs require hospitals to adhere to basic requirements for staffing, credentialing and privileges.
Among other requirements, the medical staff must examine the credentials of all eligible candidates for medical staff membership and make recommendations to the governing body regarding an appointment in accordance with state law, including scope-of-practice laws. The medical staff must also periodically conduct appraisals of its members. When telemedicine services are furnished to the hospital’s patients through an agreement with a distant-site hospital, the governing body of the hospital whose patients are receiving the telemedicine services must ensure that the distant-site hospital and distant-site physicians meet certain requirements ensuring that appropriate licensure and credentialing is in place.
The medical staff must adopt and enforce bylaws to carry out its responsibilities. Among other things, the bylaws must: describe the qualifications to be met by a candidate in order for the medical staff to recommend that the candidate be appointed by the governing body; include criteria for determining the privileges to be granted and the procedures for applying the criteria to individuals regarding privileges; and include requirements regarding examination of patients and documentation of same. CMS conducts surveys of hospitals to ensure compliance.
In addition to Joint Commission standards and Medicare CoPs, bylaws must also comply with the Health Care Quality Improvement Act of 1986, to provide immunity to medical staff peer review members who participate in or or implement peer review processes.
The Health Care Quality Improvement Act
The Health Care Quality Improvement Act of 1986 (“HCQIA”) is a federal law enacted to establish a national tracking system of healthcare practitioners with a history of medical malpractice payments or adverse disciplinary actions. The HCQIA provides protection from liability under federal and state laws (except certain civil rights statutes) for members of a professional review body and their staffs who, in the reasonable belief that the action was in the furtherance of quality health care, warranted by the facts known, and after a reasonable effort to obtain the facts, take actions which adversely affect the clinical privileges or professional society membership of a physician. It also provides protection to those who provide information to professional review bodies. A significant provision of the law provides immunity from civil money damages for those who participate in hospital peer review processes, including members of the medical staff.
The HCQIA encourages peer review and professional discipline by giving immunity from a lawsuit for damages to physician peer reviewers, and by requiring that disciplinary actions against physicians be reported to the National Practitioner Data Bank. Physicians involved in peer review are protected from liability for allegedly anticompetitive or improperly motivated behavior if their review is conducted: (1) in the reasonable belief that the action was in furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures are afforded to the physician involved, or after such other procedures as are fair to the physician under the circumstances; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of adequate notice and hearing procedures.
Under the HCQIA, a hospital may undertake a “professional review action” against a physician alleged with misconduct or incompetence. This is any formal action that can adversely affect the physician’s clinical privileges or membership in a professional society. Any such action must be based on the recommendations of a “professional review body,” which normally is the hospital’s medical staff or a committee appointed by it to conduct professional review activity.
If the affected physician requests it, he or she must be afforded certain due process rights, in the form of a hearing. The hearing must be held before an independent intermediary such as a mutually acceptable arbiter, a hearing officer, or a panel of individuals appointed by the hospital but who are not in direct economic competition with the physician involved. In the hearing process, the physician has the right to be represented by legal counsel, receive a statement of all charges against him, present evidence, and call, examine and cross-examine witnesses. The physician may also submit a written statement at the close of the hearings and have a record made of the proceedings. At the conclusion of the hearing, the physician then has the right to receive the written recommendation of the arbiter, hearing officer, or panel, including a statement of the basis for the recommendations. Only if the professional review body follows these standards will it and its members receive immunity from damages under the law.
The HCQIA is an objective standard that provides protection if there are reasonable grounds to support the decision regardless of the subjective issues in the case. In addition, 42 U.S.C. §11112(a) provides that a professional review action is presumed to be compliant with the HCQIA. This creates a rebuttable presumption for any party challenging HCQIA immunity. The bylaws should take into account procedures that incorporate the HCQIA provisions to ensure that the peer review members are afforded HCQIA statutory immunity. It therefore is clear that the HCQIA provides federal protection for peer review actions if the bylaws are compliant and the elements above are met. However, there are exceptions.
Exceptions to the HCQIA
One of the most important exceptions to HCQIA immunity is civil rights claims. The HCQIA expressly states that it does not apply to civil rights claims, meaning that physicians who are not granted privileges or who have their privileges revoked or restricted based on race, national origin or other impermissible grounds can bring suit against peer review participants. Claims that can also be brought by physicians include claims under Title VII of the Civil Rights Act of 1964 (discrimination based on gender), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”).
Regarding age, healthcare entities have increasingly required elderly physicians (who may have experienced a significant decline in physical or cognitive skills) to obtain a focus professional practice evaluation, along with a physical and mental evaluation, in order to maintain clinical privileges. Requiring such evaluations may be problematic, however.
For example, in February 2020, the Equal Employment Opportunity Commission (“EEOC”) announced it is suing Yale School of Medicine, alleging its policy requiring physicians who are 70 or older to undergo neuropsychological and eye examinations when they apply or renew staff privileges violates federal antidiscrimination laws. The lawsuit, filed in the U.S. District Court for the District of Connecticut, alleges the hospital’s “Late Career Practitioner Policy” violates the Age Discrimination in Employment Act and the Americans with Disabilities Act.
According to the EEOC, the hospital’s policy requires physicians to be tested solely because of their age, without any indication that their cognitive abilities may have declined. The EEOC said it filed the lawsuit after failing to reach a settlement through its conciliation process. The lawsuit seeks compensatory and punitive damages and injunctive relief, including elimination of the policy. Similar cases have also been filed by private litigants.
In a recent case, a urology surgeon filed suit in federal court in the Northern District of Georgia, alleging wrongful termination and violations of the Americans with Disabilities Act. The urology surgeon contends that he was wrongfully terminated as chief of urology services for Grady Memorial Hospital after he refused to enter psychological treatment and undergo psychological counseling. He also asserted in his complaint that requiring him to undergo a medical examination is a violation of his rights under the ADA.
Providers therefore need to keep in mind that anti-discrimination laws continue to apply, separate and apart from the HCQIA. And HCQIA immunity will not provide a shield against unlawful discrimination.
Another potential exception to HCQIA immunity is bad faith or “sham” peer review. In enacting the HCQIA, Congress found that physicians afraid of being sued for an honest assessment of their peers would not likely participate or engage in effective peer review. So, to ensure that physicians would cooperate in peer review intended to identify incompetent and unprofessional peers, the HCQIA provides qualified immunity to peer review participants who act in the reasonable belief that a peer review action furthers quality health care, after reasonable efforts to obtain the facts, and in the reasonable belief that such action is warranted after a reasonable investigation of the facts.
Immunity under the HCQIA is qualified, not absolute, and the presumption of immunity is rebuttable. Immunity is not supposed to apply for bad faith or malicious peer review undertaken for reasons not related to health care. So, for example, if an alleged medical concern is merely a pretext to oust an unpopular competitor, or is motivated by personal animosity, economics or politics, immunity is not supposed to apply. And many disputes have arisen, and lawsuits have been filed, over issues of alleged bad faith and alleged pretextual reasons for adverse actions.
However, many courts have interpreted the HCQIA’s reasonable belief standards in such a way that effectively makes the HCQIA’s limited, qualified immunity almost absolute, so long as peer review participants cite a healthcare or professional competence issue as the purported basis for their action. As a result, to date, most courts have ruled in favor of peer reviewers in peer review cases, and rarely allow such cases to survive summary judgment.
Two types of physicians may be targeted in sham or bad faith peer review. The first are often competitors to larger, more powerful physician groups. The second are often outspoken critics regarding patient quality of care or safety issues, seen as potential whistleblowers by hospital leadership. Accusers are often members of large groups that appear to move against targeted physicians using peer review to reduce competition. Accusers also often have positions on hospital boards or committees, or may be closely connected to hospital leadership or the board.
Congress acknowledged that limited immunity could be “abused and serve as a shield for anti-competitive economic actions under the guise of quality controls.” But without a civil rights or antitrust violation (which are expressly carved out of HCQIA immunity, but are also hard to prove), it is difficult to establish circumstances where “reasonable belief” justifying an adverse peer review action will not be found as a matter of law. Consequently, cases usually do not get past the summary judgment stage and never reach a jury. And even fewer survive appeals.
The National Practitioner Data Bank & Reportable Adverse Actions
The National Practitioner Data Bank (“NPDB”) was established by the Health Care Quality Improvement Act to protect the public by restricting the ability of practitioners to move from state to state or hospital to hospital without disclosing medical malpractice payments or adverse action histories at the time of credentialing, employment, licensing or monitoring. The NPDB collects information and maintains reports on the following:
- Medical malpractice payments
- Federal and state licensure and certification actions
- Adverse clinical privileges actions
- Adverse professional society membership actions
- Negative actions or findings by private accreditation organizations and peer review organizations
- Health care-related criminal convictions and civil judgments
- Exclusions from participation in a Federal or state health care program (including Medicare and Medicaid exclusions)
- Other adjudicated actions or decisions
The reports collected apply to healthcare practitioners, healthcare entities, providers and suppliers based on the laws and regulations that govern the NPDB. Healthcare entities submitting reports to the NPDB are required to send copies to the appropriate state licensing board(s). The HCQIA grants immunity with respect to reports made to the NPDB by any person “without knowledge of the falsity of the information contained in the report.” But with respect to peer review actions, reporting requirements may not apply if the peer review action does not meet the criteria outlined in the NPDB regulations for reporting adverse actions that a medical staff might take against a physician or practitioner.
Sanctions for Failing to Report to the NPDB
- Any malpractice payer that fails to report medical malpractice payments is subject to a civil money penalty of up to $23,331 for each such payment involved.
- Any hospital or other health care entity that fails substantially to report adverse actions will have its name published in the Federal Register, and the organization will lose its immunity from liability under Title IV with respect to professional review activities for a period of 3 years, commencing 30 days from the date of publication in the Federal Register.
- Any State Medical or Dental Board that fails to submit reports of adverse actions can have the responsibility to report removed by the Secretary of HHS.
- Any professional society that fails substantially to report adverse membership actions can lose immunity protections provided under Title IV for 3 years.
- Any health plan that fails to report information on an adverse action required to be reported to the NPDB shall be subject to a civil money penalty of up to $39,811 for each adverse action not reported.
- The Secretary of HHS shall publish a public report that identifies those government agencies that have failed to report information on adverse actions as required.
Please see the NPDB’s Guidebook for additional details.
Physicians have a right to respond to a report filed with the NPDB. And that is well worth doing when the facts and circumstances warrant a response. But needless to say, a physician can be significantly harmed by a negative report to the NPDB. When physicians request staff privileges, licensure and other types of appointments, hospitals, licensing boards, professional societies and other entities are required to check the NPDB, and a report is generally made available to the inquiring entity. This serves to put appropriate parties on notice of potential competence or professional misconduct issues and results. But an NPDB report does not prove, and may not even be evidence of, a physician’s qualifications, quality, competence, professionalism or skill.
Peer Review Confidentiality Under Georgia Law
Georgia law places an “absolute embargo” upon the discovery and use of all proceedings, records, findings and recommendations of peer review proceedings in civil litigation. Peer review attendees may not (and may not be required to) testify in civil actions regarding any information, facts or documentation presented or the findings, recommendations, evaluations, opinions, incident reporting forms, or other actions made during the proceeding. (See O.C.G.A. §31-7-130, et seq.; O.C.G.A. §31-7-140, et seq.; and case law construing those statutes.)
The embargo also includes information shared between entities performing peer review functions or disclosed to a government agency as required by law. But information, documents or records available from other non-protected sources may be subject to discovery. Attendees may testify regarding matters within any of their knowledge, but may not be asked about testimony given or opinions formed during peer review proceedings. Additionally, violation of hospital bylaws does not waive discovery privilege protection.
However, the Georgia peer review statutes do not prevent the use of peer review documents involving the permitting or licensing of an institution to challenge the effectiveness of the institution’s peer review system; provided, however, that such use shall not waive or abrogate the confidentiality of such documents. Nor does Georgia law protect proceedings and records which involve only the credentialing process and not the peer review function.
The discovery privileges provided by the Georgia peer review statutes also do not apply in federal or state civil rights actions. The Eleventh Circuit has ruled that the elimination of civil rights violations deserves greater weight than the protection of peer review functions. Nonetheless, Georgia trial courts retain the authority to protect sensitive information through other established means, such as protective orders, confidentiality agreements, and by disclosure only after an in-camera review of documents at issue. Moreover, litigants are not necessarily automatically entitled to institution-wide discovery in all civil rights cases. Instead, Georgia courts usually institute a fact-based discovery review in the context of the claims at issue.
Disputes Over Staff Privileges
The U.S. Supreme Court held long ago that physicians do not have a “constitutional right” to hospital staff privileges. However, not having a constitutional right to staff privileges does not mean that physicians are not entitled to due process and other protections. Determining the level of scrutiny the hospital board is under, and the rights physicians are entitled to, depends, in part, on whether the hospital is owned by a governmental or private entity. If the hospital is government-owned, it is engaged in state action and considered a “state actor.”
As a state actor, a public hospital board is required to follow the Fourteenth Amendment and ensure that individuals applying for staff privileges are afforded due process and equal protection. Private hospitals, on the other hand, are not subject to the Fourteenth Amendment’s requirements in the same manner as public hospitals during either the credentialing or privileging process. Nonetheless, private hospitals are required by Medicare Conditions of Participation, the Affordable Care Act, state law, and the Joint Commission to evaluate applicants fairly. This fair process ensures medical staff applicants are afforded basic safeguards of reasonable and consistent review, notice of any deficiencies, and an opportunity for a fair hearing before the hospital board. A fair hearing generally requires the ability to present evidence to establish credentials and the appropriate levels of privileges.
The hospital board’s decision regarding credentialing and/or privileges should take into account the common good of both the hospital and the public. The board’s primary function is to ensure the safety of patients and the delivery of high-quality medical care to the public. If the board follows the applicable guidelines and demonstrates the process was fair, the courts will generally uphold the decision of the hospital board. However, there are many decisions made by hospital boards that lose sight of the core mission of providing a high-quality medical staff to ensure quality medical care. Sometimes bias, economics, or prejudicial attitudes having nothing to do with quality of care motivate or infect the process, creating potential liability for the hospital. As a result, hospitals and their boards can be sued for issues relating to the credentialing and privileging process, training, supervision, etc. by medical staff, applicants and others.
Disputes that may arise out of credentialing and privileging processes include:
- Physician challenges to hospital or other healthcare organization decisions denying medical staff privileges based on improper criteria (i.e., unrelated to quality of healthcare, treatment and services).
- Allegations that a physician failed to provide proper information in applying for privileges, breached a contract, or failed to follow medical staff bylaws, warranting suspension, reduction or revocation of his/her privileges.
- Negligent credentialing claims by third parties who assert that a hospital or other healthcare facility failed to properly follow its bylaws or peer review processes, allowing an unqualified physician or other provider to perform services.
Georgia courts have held that although hospital bylaws, by themselves, do not constitute a contract between the hospital and the physicians on staff, a hospital is bound by the bylaws it creates. Thus, if a hospital does not follow the procedures in its bylaws, a court can require the hospital to follow those procedures.
In addition to the disputes listed above, medical staff credentialing and privileging matters we can assist with include:
- Denials of Staff Privileges
- Suspensions of Staff Privileges
- Terminations of Staff Privileges
- National Practitioner Data Bank & Medical Board Reporting & Appeals
The HCQIA requires a hospital board to establish a peer review process by which medical staff members are regularly reviewed and monitored. The peer review process and the NPDB are designed to work together and ensure that incompetent medical staff are identified, remediated if possible, and reported to the NPDB and licensing board if warranted. Persons participating in the peer review process are afforded immunity, provided the following occurs: (1) actions are taken with the reasonable belief they are in furtherance of quality care; (2) reasonable efforts are made to obtain the necessary facts; (3) adequate notice and a hearing is provided; and (4) there is a reasonable belief that the action taken is warranted by the facts.
Sometimes the peer review process is tainted by economic or competition concerns, improper bias, discriminatory intent, personality clashes, etc., which are unrelated to quality of care. In those cases, decision makers may not be protected or afforded immunity by a court. If the peer review committee takes action based on unfairness or, for example, in furtherance of committee members’ own collective interests, personal bias, discriminatory motive, etc., the hospital and committee members may be subject to antitrust, defamation/libel, discrimination or other tort-based lawsuits. And, if the evidence warrants, they may be liable for compensatory economic and other damages, including (in some cases) attorneys’ fees and litigation costs.
A hospital peer review process is most often instituted when a physician’s performance or behavior is called into serious question. In the most general sense, the process involves the investigation and judgment of the physician by a committee of his/her peers. A peer review can result in the revocation, suspension or restriction of a physician’s hospital credentials, and thus has the potential to seriously disrupt a physician’s medical practice, often bringing with it a cascade of legal consequences that can be devastating to a health professional’s practice and reputation. The broad categories that most peer review issues fall into include clinical competence/quality of care, physical or mental impairment, and disruptive behavior.
A peer review process generally occurs in three phases: (1) complaint(s) — with or without the possibility of informal resolution before a formal investigation; (2) investigation; and (3) hearing(s).
Complaints & Informal Resolutions
Complaints can be lodged by patients, family members, other physicians, other individual healthcare providers, hospital staff or employees. Sometimes problematic clinical or behavioral performance by a physician will be addressed early and informally by the hospital through the chief of staff or a departmental chair. The subject physician may be approached with the alleged performance issue and offered a warning or counseling on the issue. Sometimes the physician will be asked to complete a performance improvement plan or some type of voluntary remediation. The biggest consideration when considering even “informal” action is whether it constitutes an action that is reportable to the NPDB or the Georgia Composite Medical Board (“GCMB”).
Complaints of impaired behavior can also be handled informally by the hospital — whether it be an informal resolution that would allow the physician to take a leave of absence and seek treatment, or a requirement for a physician to undergo an evaluation. Any such agreement should not be entered into, however, without a clear answer on whether it would result in a report to the NPDB or GCMB.
The level to which an attorney can be directly involved in these informal negotiations may be limited by hospital policy or even a client’s own defense strategy. However, even as only an advisor or observer of the process, an experienced healthcare lawyer’s preparation, guidance and counsel can be invaluable in helping guide the process to a client’s advantage. When informal disposition is not available, either because the proceeding has advanced beyond that stage, or because the alleged conduct or performance is deemed too serious, the matter will proceed to the formal investigation and fair hearing stages.
Investigations are typically initiated by another physician, an ad-hoc committee, or the medical staff’s MEC after an unexpectedly poor patient outcome, an impairment complaint, a disruptive or abusive behavior report, or a combination of such events. Depending on the severity of the incident or conduct, and whether a risk of imminent harm or danger is deemed to exist, the MEC may decide to immediately and summarily suspend the physician’s privileges. This usually occurs (or is only supposed to occur) in situations in which the physician’s care or behavior is alleged to constitute an imminent threat to patient or other individuals’ safety. A suspension of privileges that remains in effect for more than thirty days requires an NPDB report.
At the beginning of an investigation, the MEC should notify the physician in writing of the allegations. If the investigation is related to medical care, the relevant medical records are often first reviewed internally within the health system by other medical professionals in the same field or specialty as the physician. The MEC may also or instead send the relevant medical records out for external peer review by medical professionals in the same field or specialty as the physician. After these expert reviews are complete, the MEC or an investigative panel made up of other physicians will then interview the physician.
During the hospital’s investigation, the physician’s ability to actively defend against the allegations against him or her is limited. The physician’s access to medical records is usually restricted by the hospital. The physician may not be allowed to talk to or cross-examine adverse witnesses. The hospital may even limit the direct participation of the physician’s lawyer during the investigative process.
When the investigation is concluded, the MEC will consider the evidence and make a recommendation. If the recommendation is to drop the allegations, the peer review ends. Often, however, the MEC may attempt to modify, reduce, suspend or revoke a physician’s privileges. If so, the MEC must timely notify the physician in writing of the reasons for its recommendation and inform the physician of his or her right to request a fair hearing. In some cases, physicians may also have the right to attempt to mediate a dispute with the MEC and hospital. But if the physician decides to simply resign his/her privileges during an ongoing investigation, it will result in an NPDB report.
If the physician does not agree to the MEC’s recommendation, he or she may request a fair hearing. A fair hearing is usually conducted at the hospital before a panel of physicians who are on the medical staff, but often are not members of the physician’s specialty. The panel should not include any physicians who are in direct economic competition with the physician.
The parties will appoint a fair hearing officer to oversee the hearing. The hearing officer’s role is to resolve disputes between the physician and the hospital regarding the admissibility of evidence and hearing procedure. A hearing officer should also ensure that the hearing is conducted in compliance with provisions of the HCQIA. The HCQIA requires that the hospital provide a physician certain due process rights, and a failure on the hospital’s part to provide these rights could result in the hospital and MEC losing its statutorily granted immunity from certain types of lawsuits.
These due process rights include:
- Allowing representation by an attorney or other person of the physician’s choice;
- Having a record made of the proceedings;
- Permitting the physician to call, examine and cross-examine witnesses;
- Giving the physician the opportunity to present evidence determined to be relevant by the hearing officer, regardless of admissibility in court; and
- Allowing the physician to submit a statement at the close of the hearing.
In addition, the medical staff bylaws or state law may provide other procedural rights for the physician, such as limited discovery. After the hearing, the panel will provide its recommendation to the MEC, which can either uphold or modify the panel’s recommendation. If, after the fair hearing, the MEC decides to proceed with a recommendation adverse to the physician’s privileges, medical staff bylaws usually allow the physician to appeal the MEC’s decision to the hospital’s governing board. It is only after the governing board upholds the recommendation that the adverse action becomes “final” and a Databank report containing the MEC’s recommendation is generated.
Exhaustion of Administrative Remedies
Many medical staff bylaws state that members must exhaust the remedies provided in the bylaws before resorting to legal action. It is a general and well established jurisdictional rule that a plaintiff who seeks judicial relief against an organization of which he is a member must first invoke and exhaust the remedies provided by that organization applicable to his or her grievance. Under this exhaustion of administrative remedies doctrine, a party must go through the entire proceeding to a “final decision on the merits of the entire controversy” before resorting to the courts for relief.
The exhaustion doctrine generally applies in medical disciplinary proceedings such that before a doctor may initiate litigation challenging the propriety of a hospital’s denial, reduction or withdrawal of privileges, he or she must exhaust the available internal remedies afforded by the hospital. The doctrine rests on notions of judicial restraint and deference to disciplinary proceedings that satisfy basic due process to which all members of the medical staff agreed.
Whether by statutory or common law, most states have granted to individual hospitals, acting on the recommendations of their peer review committees, the primary responsibility for monitoring the professional conduct of physicians licensed in the state. If an administrative remedy is available and has not yet been exhausted, courts generally hold that an adequate remedy exists and a plaintiff or petitioner-physician is not entitled to obtain legal or extraordinary relief or remedies via the courts.
The Medical Staff is generally considered a self-governing, autonomous body. It should have a carefully crafted set of bylaws that incorporate traditional due process procedures, including a right of appeal. As long as that is the case, physicians are generally deemed to have a valid administrative remedy that they are required to exhaust before resorting to courts.
Courts have said that suspension, revocation or other similar disciplinary proceedings involving professional licensees are not for the purpose of punishment, but primarily to protect the public served by the licensee who is a member of a medical staff or employee of a hospital. Hospitals are not required to rigidly adhere to any particular procedure in discharging this public safety function, and the courts’ limited role is to ensure only that the basic requirements of due process and fair procedure – i.e., adequate notice of charges and reasonable opportunity to be heard – are observed.
Consequently, courts generally have held that they should not interfere with a hospital’s disciplinary process so long as a fair hearing is provided. Courts hesitate to intervene in administrative proceedings which are not yet final. Permitting court review before a final administrative decision is rendered where the individual has been afforded notice and an opportunity to be heard and there is a mechanism for reviewing the claimed errors at the administrative level could vitiate the exhaustion requirement.
Thus, the general rule is that an organization’s violation of its own rules does not furnish a right for direct resort to the courts before the administrative process is completed. And even afterwards, courts generally will not second-guess substantive decisions on the merits, as long as adequate notice and opportunity to be heard were afforded to the accused.
Physicians’ ability to appeal to hospital boards if committee proceedings are not decided in their favor affords them an adequate, available remedy, and no interim review procedure will be required by a court. Medical staff rules do not generally limit a hospital board’s appellate role to merely substantial evidence review. In any event, courts will not intervene in incomplete administrative proceedings or micromanage a process entrusted in the first instance to hospitals and their self-governing medical staffs, not to the courts. A court’s role with respect to a hospital’s disciplinary procedures is confined to safeguarding basic due process rights.
Courts therefore have held, for example, that exhaustion of administrative remedies are required even though a hospital failed to meet a bylaw deadline for commencement of a peer review hearing, because failure was not considered a deprivation of fundamental due process. And hospitals’ or medical staffs’ violations of bylaws, by themselves, do not necessarily deprive disciplined physicians of due process.
There are some exceptions to the exhaustion of administrative remedies doctrine. But they are limited. For instance, the exhaustion requirement does not apply if no administrative remedy is available. And an administrative remedy need not be exhausted if pursuit of that remedy would result in irreparable harm. But irreparable harm is difficult to prove. And expenses or lost income, which may be incurred as a result of a peer review process, do not constitute irreparable injury, no matter how substantial and non-recoverable. If the rule were otherwise, the exhaustion requirement would be abrogated. So doctors ordinarily must bear the costs of individual hearings to contest their discipline.
Courts also usually defer to a hospital or medical staff’s construction of its own bylaws. But courts do bear the ultimate responsibility for deciding whether a hospital’s or medical staff’s interpretation is clearly erroneous or unreasonable.
Additionally, at least one California court has distinguished common law tort claims from statutory whistleblower retaliation claims, which, it found, do not require exhaustion of all quasi-judicial proceedings and administrative remedies afforded by a hospital. In Fahlen v. Sutter Central Valley Hospitals, 58 Cal.4th 655 (2014), the California Supreme Court determined that the “clear legislative intent” of the statute contemplated that a peer review proceeding could run contemporaneously with a statutory whistleblower action, given the express legislative purpose behind the whistleblower statute, which is to encourage and protect whistleblowers who raise concerns about quality of patient care.
On appeal, the hospital asserted for the first time a federal preemption argument. Specifically, the hospital argued that permitting simultaneous actions without exhaustion of all quasi-judicial and administrative remedies conflicted with the HCQIA, which establishes a broad immunity from lawsuits for individuals and healthcare organizations that participate in reasonably informed and reasonably justified disciplinary actions by medical peer review bodies. The hospital argued that the underlying policy of the HCQIA is to encourage hospitals and physicians to engage in peer review programs to relieve those parties from threats of lawsuits. The California Supreme Court declined to address that argument “in detail” because it had not been raised in the lower courts, but it did note that the HCQIA would not preclude relief such as reinstatement and other injunctive relief.
While the Fahlen case involved only California law, it could have significant implications for hospitals and physicians elsewhere, since many states have whistleblower statutes that may be similar to California’s whistleblower statute. Moreover, courts throughout the nation continue to expand protections afforded to whistleblowers, and the logic could be extended to federal whistleblower statutes. Members of a peer review committee engaged in a bona fide review process (and not one initiated with retaliatory or discriminatory motivations) have qualified immunity. But that immunity is only qualified, and merely a defense to a claim brought in a lawsuit. So to raise it, one must actually be party to a lawsuit.
More decisions like the one in California could arguably have a deterring effect on physicians’ willingness to participate on peer review committees, which might also lessen hospitals’ ability to improve patient care. Therefore, it is important for hospitals to consult legal counsel promptly when considering whether to limit, suspend or revoke a physician’s privileges, since the physician could potentially use the hospital’s conduct before and during peer review as a basis for a whistleblower action. However, while consulting counsel early in the process is wise, reliance on the advice of counsel to justify a hospital’s disciplinary decisions could potentially waive the attorney-client privilege related to discussions with counsel about those decisions. Hospitals should therefore also do what they can to ensure that their internal complaint-filing policies create an environment where individual providers have clear and effective procedures to submit complaints about patient care and feel free from retaliation by the hospital.
Changes Due to Coronavirus/COVID-19 Pandemic
The rise of COVID-19 cases has left hospitals throughout the country short-staffed and hamstrung by state and federal rules that do not allow mid-level providers to practice at the top of their license. Hospitals have requested new flexibility so that they can free up system capacity without having to hire new staff or take doctors away from where they are needed most.
On March 30, 2020, CMS issued a blanket waiver for all hospitals participating in Medicare and Medicaid that would be subject to credentialing and privileging requirements under 42 CFR §482.22(a)(1)-(4). The waiver effectively allows medical staffs and hospitals to forego credentialing and privileging of physicians whose privileges will expire to continue practicing at hospitals and for new physicians to be able to practice before full medical staff/governing body review and approval to address workforce concerns related to COVID-19.
In Georgia, Governor Kemp has also issued certain executive orders authorizing the Department of Community Health to temporarily waive certain hospital licensing requirements pertaining to credentialing and privileging of physicians and other healthcare providers. Specifically, as of this writing, Governor Kemp has issued orders: declaring a Public Health State of Emergency for the novel coronavirus (COVID-19) on 3/14/20; reducing regulations to assist the state’s response to the spread of COVID-19 on 3/20/23; expanding temporary licensing of certain medical professions to assist the state’s response to the spread of COVID-19 on 3/23/20; and renewing the Public Health State of Emergency to assist with the state’s response to COVID-19 on 4/8/20. The executive orders, however, require any waivers to include alternate measures that ensure the competency of physicians and other healthcare providers providing medical or healthcare services in Georgia’s hospitals.
On April 9, 2020, CMS announced it will allow providers to practice across state lines and to the fullest extent of their licenses. Specifically, CMS temporarily suspended a number of rules so that hospitals, clinics, and other healthcare facilities can boost their frontline medical staffs as they fight to save lives during the COVID-19 pandemic, and announced new waivers that sharply expand the workforce flexibilities CMS announced on March 30. (See this fact sheet for more details on the waivers.) The new flexibilities will allow doctors to treat patients at rural hospitals via telehealth, even if they are out-of-state. Nurse practitioners also would be allowed to perform select medical exams for Medicare patients in skilled nursing facilities, even if they are not COVID-19 related. Occupational therapists that work for home health agencies will also be able to do initial assessments for homebound patients. And hospice nurses will no longer have to participate in hospice aide in-service activities. The Trump administration hopes these moves will free up additional provider capacity during the COVID-19 pandemic.
Despite the temporary waivers for credentialing and privileging, accrediting bodies such as The Joint Commission have yet to suspend application of standards requiring privileging and credentialing. The Joint Commission instead refers to its Emergency Management Standards for granting privileges during a disaster, EM.02.02.13. Medical staffs and hospitals can still utilize their state of emergency privileging procedures (often referred to as “disaster privileges”) or adopt such procedures that provide swift and streamlined credentialing and privileging while still providing a minimum quality control process. For example, disaster privileges can be granted based on a government I.D. and proof that the physician is privileged at another hospital.
For an article examining issues facing medical staffs due to the COVID-19 pandemic, and options to hold meetings virtually to continue functioning at optimal levels, click here. For additional details regarding COVID-19 Emergency Practice, Telehealth & Teleprescribing Measures, please see our Medical & Professional Licensing Board Matters webpage.
Conclusion & How We Can Help
The list of due process rights afforded by the HCQIA can sometimes lull targeted physicians or providers into a false sense of security. As a practical matter, however, medical staff bylaws may be structured and actual practice may be such that ad hoc and executive committees of hospital medical staffs are free to make determinations about medical staff privileges without many, if not all, of the procedural safeguards necessary for fundamental fairness actually available to the accused physician at a meaningful stage.
For example, an accused physician may be told and the bylaws may actually prohibit the physician from bringing counsel to committee “meetings” at the committee stage. But even in those situations, a hospital cannot prevent a physician from consulting and obtaining advice from an experienced healthcare attorney. And wise physicians will do precisely that, because if they wait until the hearing stage to engage counsel, it may be too late.
An accused physician should avoid the temptation of assuming (hoping) that just because the stages of peer review at the committee level are not “final” and can be appealed, he or she can wait until an adverse recommendation or decision is made, before retaining and consulting counsel. Unfortunately, the reality may be that the “cake is already baked” and the physician’s fate may already be sealed by then. And the hearing stage of the peer review process may actually be only a formality, which is hopelessly tilted against the accused, such that there is little or no real chance of reversal or modification by the time that stage is reached. Therefore, once a notice of investigation is received, and certainly once a physician finds him or herself in the committee stage of a peer review process, all attention, efforts and resources necessary to achieve a favorable outcome (including experienced counsel) should be engaged.
Reliance on the courts to later rectify what a physician believes was an unfair adverse action or decision is often misplaced. In most situations, courts generally say that their role on review of medical peer review actions is not to substitute their judgment for that of a hospital’s governing board or to reweigh the evidence regarding the reduction, suspension or termination of medical staff privileges. In the view of most courts, the intent of the HCQIA was not to disturb, but to reinforce, the preexisting reluctance of courts to substitute their judgment on the merits for that of healthcare professionals and governing bodies of hospitals in areas within their expertise. See, e.g., Wood v. Archbold Medical Center, Inc., 738 F.Supp.2d 1298, 1358 (M.D. Ga. 2010); Wood v. Archbold Medical Center, Inc., No. 6:05-CV-53 (HL), 2006 WL 1805729, at *3 (M.D. Ga. June 29, 2006) (“Georgia Law generally provides immunity from criminal and civil liability unless the health care provider was motivated by malice. Georgia courts have consistently held, however, that ‘to the extent that peer review immunity … is conditional upon the absence of motivating malice, it is preempted by the HCQIA.'”), quoting Patrick v. Floyd Medical Center, 255 Ga. App. 435, 444 (2002)). See also Wood, 738 F.Supp.2d at 1350 (“courts all over the country have held that a plaintiff’s ‘urging of purported bad motives or evil intent or that some hospital officials did not like him provides no succor,'” as the inquiry under HCQIA is an objective one), citing and quoting, inter alia, Bryan v. James E. Holmes Reg. Med. Ctr., 33 F.3d 1318, 1334-35 (11th Cir. 1994). Consequently, a physician who is the subject of a peer review investigation certainly should not wait until after an adverse action is taken or a decision is made before consulting legal counsel.
The stakes for a physician or individual provider who is the subject of peer review investigation are much broader than whether he or she will retain the ability to practice at a particular hospital or facility. Many peer review actions result in a report to the NPDB, the national clearinghouse of information regarding physician misconduct. An NPDB report stating that a physician was subject to discipline by his/her peers will also be reported to the GCMB, and can be the basis for an investigation and disciplinary action by the Georgia Medical Board. The NPDB report will also be available to other hospitals where the physician holds privileges, any facility where he/she applies for privileges, and any insurance networks to which the physician belongs or applies. In addition, adverse peer review action by a hospital against a physician may affect his/her ability to participate in or receive payments or reimbursements from governmental healthcare programs, including Medicare, Medicaid, Tricare, etc.
So an understanding of the peer review process and its consequences is critical for any physician or healthcare provider faced with the prospect of a peer review. The peer review process is guided by state and federal laws, as well as an individual facility’s medical staff bylaws and credentialing documents. Occasionally, the facility’s bylaws do not fully comply with the state and federal laws, and sometimes the facility or medical staff simply fails to properly follow its own bylaws. In either case, it is essential that an affected physician hire an experienced healthcare lawyer to guide him or her through the process and ensure that he or she is afforded “due process.” Even during the early investigative phase, an attorney may be able to assist, with an eye toward a subsequent fair hearing or lawsuit. And an attorney may be necessary to ensure that the hospital conducts the process in accordance with state and federal laws, and to help preserve evidence of any illegal motives behind the peer review.
We have extensive experience counseling both hospitals and physicians in hospital/physician relationships, credentialing, medical staff and peer review issues. We also have many years’ experience with medical staff fair hearings and federal and state litigation involving medical staff privileges and peer review. Whether it is a medical staff dispute, compliance with bylaws, or responding to inquiries or investigations, we can help. Call or email us for legal assistance.
*Portions of this webpage are adapted from the first two chapters of the ABA Health Law Section’s book titled What is…Medical Staff Peer Review?, which discusses different types of medical staff peer review and various outcomes they can have. The book (authored by Conrad Meyer V, Mehrnaz Hadian, Patrick Dennis Souter, and Robert Steven Iwrey) begins by defining what constitutes a “medical staff” and discusses how medical staffs are governed. It then examines both the informal and formal peer review process, internal investigations, and disciplinary actions. For additional information, see https://www.americanbar.org/products/inv/book/312603484/.