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 (“HCQIA”) and accreditation requirements of The Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) 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 (“NPDB) and state agencies, including the Georgia Composite Medical Board (“GCMB”) and other professional licensing boards.
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.
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 (“CoP”), The Affordable Care Act (“ACA”), state law, and the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) 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 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 Medical Executive Committee (“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 MEC normally then sends the relevant medical records out for external peer review by medical professionals in the same field or specialty as the physician. After these 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.
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.