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. As discussed in the following section, 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 Process
Credentialing for an initial appointment generally includes: (1) verifying the initial application, including a broad release from liability and the application fee; (2) collecting a significant amount of information from the applicant such as photo identification, educational background, healthcare training, work history, curriculum vitae, board eligibility/certification, state licensure, Drug Enforcement Administration registration, and proof of malpractice insurance; (3) performing a thorough background check, including but not limited to verifying the accuracy and truthfulness of the aforementioned information collected from the applicant, conducting a criminal background check, querying the National Practitioner Data Bank (“NPDB”), checking the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) Exclusion Database, and verifying the status of staff privileges at other hospitals and healthcare facilities listed on the application; (4) following up with the applicant for an explanation of any gaps in education, training or work history, or other points requiring additional information that might have arisen during the credentialing process; and (5) obtaining from the applicant and verifying peer recommendations. Once these steps have been accomplished, the credentialing committee typically sends the application and all of its findings and recommendations to the Medical Executive Committee (“MEC”) that then formulates a recommendation for approval or disapproval to the hospital’s Board, which is often the final decision maker. A disapproval by the MEC typically triggers the applicant’s fair hearing right, which means the applicant has a right to request a hearing to appeal the adverse recommendation as described in more detail below. However, the hospital’s Board usually remains the final decision maker. The medical staff privileges reappointment process often follows a similar but somewhat streamlined procedure, which may vary from hospital to hospital.
For healthcare providers seeking medical staff membership with privileges, the credentialing and recredentialing applications typically contain a section wherein the healthcare providers indicate the type of privileges they are seeking. In broad terms, there are two types of privileges at a hospital: admitting privileges and clinical privileges. Admitting privileges allow the healthcare provider to admit patients in the hospital and serve as attending physician during the hospitalization. Clinical privileges allow the healthcare provider 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 such services are consistent with the hospital’s mission and needs. The types of clinical privileges available and granted to a 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.
Determining which clinical privileges to grant to a particular healthcare provider is a significant aspect of the credentialing process. Criteria for clinical privileges are based on numerous factors, including the complexity and levels of care needed by the patients, documentation of training, and demonstrated competency in the performance of the requested procedures. Criteria for new procedures and treatment modalities are continually being developed and revised as technology progresses, with the goal being a uniform application of such criteria across different fields of practice. To be deemed competent, healthcare providers requesting clinical privileges in new procedures and treatment modalities often must document sufficient hands-on training achieved through supervised programs. Provisional privileges may be granted allowing a healthcare provider to perform certain procedures under the supervision of a proctor until such time that the provider demonstrates a certain level of competency and is deemed capable of performing such procedures safely and without supervision. The decision whether to grant or deny the privileges requested by a healthcare provider typically follows the same path as the decision whether to grant or deny medical staff membership at a hospital. The input is received from the credentialing committee and the MEC before the Board makes the final decision. However, for granting clinical privileges, input from the director of the applicant’s affiliated department is also sought and considered.
Levels of Membership
As set forth above, there are often different categories of medical staff membership, including but not limited to Active, Affiliate, Temporary and Honorary. Of these categories, Active staff membership represents the highest level of membership, which has the highest criteria standards and qualifications requirements. To maintain Active staff status, medical staff members typically must meet a certain minimum number of patient admissions per year (for the purpose of having a reasonably sufficient number of admissions that can be reviewed for quality of care control), actively participate in administrative meetings and quality of care measures, and actively participate in on-call and specialty coverage programs. Affiliate membership may be available to healthcare providers who do not meet the criteria standards and qualifications requirements for Active staff membership, but do meet the applicable criteria standards and qualifications requirements for the Affiliate membership category. Affiliate staff members typically do not enjoy the same voting rights as Active staff members. Temporary staff membership is typically offered under specific circumstances where unique patient care circumstances arise and warrant an expedited manner in which a healthcare provider can obtain limited membership and admitting and clinical privileges to meet the hospital’s needs on a temporary basis. Honorary or Emeritus medical staff membership is usually available to a select few healthcare providers who have demonstrated past distinguished service to the hospital and/or the medical community in which they serve, and is often viewed as an award or formal recognition for a provider’s significant contribution to the hospital, patient care or medical sciences. Honorary members do not have admitting or clinical privileges and do not typically have any voting rights. The actual levels of membership may vary from hospital to hospital; however, the rights and obligations of the healthcare providers for each membership category are described in detail in the hospital’s Bylaws.
Medical Staff Bylaws
A well-organized medical staff is critical for every hospital organization. Such an organization is memorialized in a document known as the hospital’s medical staff Bylaws. These Bylaws are a group of documents adopted by the voting members of the organized medical staff and approved by the governing body, the Board of the hospital, that defines the rights, responsibilities and accountabilities of the medical staff and various officers, persons and groups within the structure of the organized medical staff; the self-governance functions of the organized medical staff; and the working relationship with and accountability to the governing body of the organized medical staff. Bylaws should address specific issues directly related to the medical staff and should include a concise set of rules, policies and procedures that address important issues a physician who is a member of the medical staff might encounter. The purpose of creating and adhering to hospital Bylaws may include the following:
- To facilitate the provision of quality care to hospital patients regardless of race, gender, sexual orientation, creed, disability or national origin;
- To promote professional standards among members of the medical staff;
- To provide a means whereby problems may be resolved by the medical staff with the collaboration of the Board; and
- To create a system of self-governance and to initiate and maintain rules and regulations governing the conduct of the medical staff subject to the Board.
The medical staff is governed by not only its Bylaws but also rules and regulations that often dictate specific standards of care (e.g., obtaining proper history and physical exam or placing a time limit on when to sign delinquent medical records). The Bylaws are separate and apart from rules and regulations. However, the medical staff must adhere to both. Various entities exist that provide accreditation services to hospitals and grade on compliance with various standards regarding hospital operations, including the medical staff. Such entities assist hospitals in their oversight to ensure that facilities are enacting Bylaws that provide for a well-run medical staff.
Several different regulatory provisions as well as entities provide guidance on creating proper Bylaws. One well-known entity that provides guidance to hospitals in creating proper Bylaws is the Joint Commission. A hospital that wants to become Joint Commission–accredited must comply with special sets of guidelines that require facilities to create, adhere and maintain certain policies and procedures that relate to the medical staff. Specifically, the Joint Commission creates elements and standards that hospitals must meet to be accredited by the Joint Commission. One of the standards that must be met is compliance with certain requirements for the Bylaws.
The Joint Commission
In 2011, the Joint Commission Task Force, comprised of a hospital attorney and a medical staff attorney and representatives of hospital industry trade groups, medical and other health professional associations, revised Joint Commission standard MS.01.01.01, which addresses the Bylaws and the standards that address self-governance and accountability to the governing body. The January 1, 2018 version of the Joint Commission MS.01.01.01 contains 37 elements for hospital compliance. Some examples of the 37 elements that need to be contained in the Bylaws include:
- The medical staff structure
- Qualifications and process for appointment/reappointment to the medical staff
- Process for privileging and reprivileging licensed independent practitioners
- Process for credentialing and recredentialing licensed independent practitioners
- History and physical exam documentation requirements
- Identification of which categories of members can vote
- Identification of medical staff officers and the process for selecting/electing and removing medical staff officers
- Duties and qualifications of the department chairs
- The MEC’s:
- Size and composition (which must include physicians, and may include other practitioners and other individuals, as well as the process for member election, selection and removal)
- Authority and means by which the medical staff delegates such authority to and removes it from the MEC, and acknowledgment that the MEC acts on behalf of the medical staff between its meetings and within the scope it defines
- Indications and processes for automatic and summary suspension and termination or reduction of privileges and membership
- Hearing and appeals process and the composition of hearing committees
- Process for amending and adopting medical staff bylaws, rules, regulations and policies (which must include a means for the medical staff to propose amendments directly to the governing body, without requiring MEC action).
MS.01.01.01 and its elements provide the framework for constructing, writing and implementing Bylaws. In particular, it creates a mechanism for adoption and amendment of the Bylaws that, according to the standard, must be voted on by the entire medical staff and approved by the governing body.
In addition to the Joint Commission accreditation, another important regulatory mechanism that relates to the Bylaws is found in the Health Care Quality Improvement Act of 1986 (“HCQIA”). The Bylaws must be HCQIA-compliant to afford immunity for medical staff peer review members charged with overseeing the peer review process contained in the Bylaws.
The Health Care Quality Improvement Act
Hospitals must work toward creating Bylaws that adhere to both federal and state civil immunity from liability for peer review decisions. The policies and procedures for adherence to the federal and state law immunity provisions should be detailed in the Bylaws, including the fair hearing process, which is discussed further below. It is important to note that the HCQIA only protects participants from money damages, not from injunctive relief or from the lawsuit itself. As such, the peer review process and Bylaws should conform to state law peer review statutes that may offer additional immunity protection in addition to compliance with the HCQIA. (In Georgia, those peer review statutes are O.C.G.A. §31-7-130, et seq., and O.C.G.A. §31-7-140, et seq.)
The HCQIA was enacted at the federal level to address the reporting of physicians who were peer-reviewed with adverse outcomes and provide for immunity to peer review panel members tasked with reviewing and ruling on physician issues within the medical staff to create both immunity and confidentiality for the peer review process. Congress, in its findings regarding the need for the HCQIA, determined it was necessary because there was:
- An increased occurrence of medical malpractice and a need to improve the quality of medical care nationwide that warrant greater efforts than those that can be undertaken by any individual state;
- A national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physician’s previous damaging or incompetent performance;
- A nationwide problem that can be remedied through effective professional peer review;
- The threat of civil liability money damage under federal laws, including treble damage liability under federal antitrust law, that unreasonably discouraged physicians from participating in effective professional peer reviews; and
- An overriding national need to provide incentive and protection for physicians engaging in effective professional peer review. (42 U.S.C. §11101.)
The HCQIA (which is found at 42 U.S.C. §11111, et seq.) provides for immunity from any law of the United States or any state or political subdivision, except certain civil rights statutes, for a defined group of participants who participate in peer review activities in accordance with the standards of the HCQIA. A review of the HCQIA is critical to ensure immunity for peer review members.
The HCQIA identifies immunity for the following participants or classes of participants:
- A professional review body that includes a healthcare entity (including a licensed hospital, an entity providing healthcare services and formal peer review, or a professional society utilizing formal peer review), the governing body and/or committee thereof conducting a professional review activity, and a committee of the medical staff when assisting the governing body in performing “professional review activities”;
- Any person acting as a member or staff to the professional review body;
- Any person acting under a contract or other formal agreement with the professional review body; and
- Any person who participates with or assists the professional review body.
A professional review activity is defined as “any activity relating to an individual physician denied privileges or medical staff membership.” Under the HCQIA, professional review bodies and participants in a professional review activity will not be liable in “damages” under any law of the United States or any state. This immunity prohibits a damage award against peer review participants, but not the litigation action itself. For the HCQIA immunity to apply, all of the following standards must be met in a professional review action that is taken:
- In the reasonable belief that the action was in the furtherance of quality healthcare;
- After reasonable effort to obtain the facts of the matter;
- 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
- In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain the facts.
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 is clear that the HCQIA provides federal protection for peer review actions as long as the Bylaws are compliant. However, Medicare’s Conditions of Participation, another regulatory body, ensures that hospitals participating in the Medicare program have their Bylaws up to HCQIA-required standards.
Medicare Conditions of Participation
To receive Medicare and Medicaid payment, hospitals are required to be in compliance with the federal requirements set forth in the Medicare Conditions of Participation (“CoPs”). As such, the Centers for Medicare & Medicaid Services (“CMS”) conducts surveys of a hospital to ensure compliance. The goal of a hospital survey is to determine whether the hospital is in compliance with the Medicare CoPs.
Certification of hospital compliance with the Medicare CoPs is accomplished through observations, interviews, and document and record reviews. The survey process focuses on a hospital’s performance of patient-focused and organizational functions and processes. The hospital survey is the means used to assess compliance with federal health, safety and quality standards that will ensure that the beneficiary receives safe, quality care and services.
According to CMS, the hospital must have an organized medical staff that operates under Bylaws approved by the governing body and is responsible for the quality of medical care provided to patients by the hospital. (See 42 CFR 482.22.) Medicare’s CoP rules require hospitals to adhere to basic requirements for staffing, credentialing and privileges. If the hospital is a Medicare participant, CMS provides that the Bylaws must comply with the medical staff provisions as outlined below:
- The medical staff must include doctors of medicine or osteopathy. In accordance with state law, including scope-of-practice laws, the medical staff may also include other categories of non-physician practitioners determined as eligible for appointment by the governing body. The standards provide that:
- The medical staff must periodically conduct appraisals of its members;
- The medical staff must examine the credentials of all eligible candidates for medical staff membership and make recommendations to the governing body on the appointment in accordance with state law; and
- When telehealth or 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 telehealth or 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 be well organized and accountable to the governing body for the quality of the medical care provided to patients;
- The medical staff must be organized in a manner approved by the governing body;
- If the medical staff has an executive committee, a majority of the members of the committee must be doctors of medicine or osteopathy;
- The responsibility for organization and conduct of the medical staff must be assigned to only one of the following:
- An individual doctor of medicine or osteopathy;
- A doctor of dental surgery or dental medicine, when permitted by state law of the state in which the hospital is located; and
- A doctor of podiatric medicine, when permitted by state law of the state in which the hospital is located.
The medical staff must adopt and enforce Bylaws to carry out its responsibilities. The Bylaws must:
- Be approved by the governing body;
- Describe the organization of the medical staff and include a statement of the duties and privileges of each category of medical staff (e.g., active and courtesy);
- 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 requirements regarding examination of the patient and the documentation of same; and
- Include criteria for determining the privileges to be granted and the procedures for applying the criteria to individuals regarding privileges.
There are many issues related to credentialing and privileges when dealing with medical staff, including the need for peer review. A successful peer review process can help make the hospital a better place for both patients and physicians. (Peer review and fair hearing processes are discussed further below.)
Exceptions to the HCQIA
A significant exception to HCQIA immunity is civil rights claims. Recently, there has been an increase in the number of physicians employed by hospitals, and employed physicians are more likely to bring a civil rights claim to avoid the immunity otherwise provided under the HCQIA. Claims that can be brought by employed 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”).
The ADA (42 U.S.C. §12101, et seq.) provides protection from discrimination on the basis of a disability in the following categories:
- State and local government services;
- Public accommodation;
- Public transportation; and
In the medical staff context, many have questioned whether the ADA could be used as the basis to prohibit the denial and/or restriction of a medical staff applicant’s or an appointee’s appointment to the medical staff or grant of clinical privileges at a healthcare entity based on a health condition or perceived disability, physical or mental, to the extent a physician can exercise clinical privileges with reasonable accommodation. The reasonable accommodation provisions contained in the ADA go beyond the scope of this webpage.
However, with the employment of more physicians by hospitals and healthcare entities, it is clear that Title I of the ADA will apply to those employed physicians. As such, reappointment for privileges must be in compliance with the ADA. Because the ADA severely restricts the right of the employer (in this case, the hospital) to inquire into the physician’s health matters in general (including, for example, past drug and alcohol usage), the hospital should take great care in how it prepares its reappointment application. Each entity must evaluate how much risk to take in its inquiry into the physical and psychological conditions of the employed physicians at the hospital.
Age discrimination claims are also not covered by the HCQIA. These include claims for medical staff privileges against the hospital from older physicians who may have experienced a significant decline in physical or cognitive skills. Hospitals should therefore ensure that the Bylaws have no requirements to force physicians to relinquish privileges at a certain age. But to address this issue, healthcare entities have increasingly required elderly physicians to obtain a focus professional practice evaluation (“FPPE”), along with a physical and mental evaluation, in order to continue 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. 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.
The NPDB & Reportable Adverse Actions
As discussed above, when Congress enacted the HCQIA, it also created the NPDB, an electronic depository of all payments made on behalf of physicians in connection with medical liability settlements and judgments they have paid in medical malpractice lawsuits. The NPDB was designed to be a clearinghouse for hospitals to obtain historical information about physicians who apply for privileges, and was designed to restrict the ability of physicians with questionable credentials to move from state to state without detection of their backgrounds.
The question thus became how does the NPDB define what is a reportable “adverse action.” According to the NPDB regulations, hospitals and other healthcare entities must report adverse clinical privileges actions to the NPDB that meet NPDB reporting criteria – specifically: any professional review action that adversely affects the clinical privileges of a physician or dentist for a period of more than 30 days or the acceptance of the surrender of clinical privileges, or any restriction of such privileges by a physician or dentist, (i) while the physician or dentist is under investigation by a healthcare entity relating to possible incompetence or improper professional conduct, or (ii) in return for not conducting such an investigation or proceeding. Clinical privileges include privileges, medical staff membership, and other circumstances (e.g., network participation and panel membership) in which a physician, dentist, or other healthcare practitioner is permitted to furnish medical care by a healthcare entity. (See https://www.npdb.hrsa.gov/guidebook/EClinicalPrivileges.jsp.)
Healthcare entities are then required to print a copy of the report submitted to the NPDB and mail it to the appropriate state licensing board. 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.”
Needless to say, physicians can be impacted greatly by reports made to the NPDB. This is especially true when an NPDB report is made available to hospitals, licensure boards and professional societies when physicians request staff privileges, licensure and other types of appointments. Unfortunately, whether the NPDB report is actually evidence of a physician’s qualifications or quality, the report immediately puts everyone on notice of potential competence or professional misconduct issues and results.
Physicians have the ability to respond to a report filed with the NPDB. It is also important to know that reporting requirements to the NPDB can be avoided if the peer review actions, in particular, do not meet the criteria outlined in the NPDB regulations for reporting adverse actions that the medical staff might take against an aggrieved physician or practitioner.
Furthermore, most states have a state peer review statute that provides important confidentiality protections to peer review committees and their members. Some of these states have peer review statutes that provide even greater protections than what is provided under the HCQIA, including privileges against discovery for peer review information and immunity from injunctive relief. Most state laws prohibit monetary damages against peer review committee members. However, should a state regulation or statute regarding the peer review process appear to allow for monetary damages to peer review committee members, then it is possible for the HCQIA to preempt state law. Generally, the HCQIA does not preempt state laws to the extent state law provides greater protections for peer reviewers.
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.
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 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 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, we can help. Please call or email us if you wish to schedule a consultation.
*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 the different types of medical staff peer review and the various outcomes they can have. The book begins by defining what constitutes a “medical staff,” and how they 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/.