The Public Hospital District Board’s

Role in Credentialing

Kittitas Valley Healthcare

Kittitas County Public Hospital District No. 1

February 22, 2018

Overview

• Background and the board’s role

• Potential areas of risk

• Best practices

• Questions and answers

Background and the Board’s Role

Defining Credentialing and Privileging

• Credentialing: Only qualified physicians, NPs, or other practitioners are admitted to medical staff and remain on the staffo Appointment to the medical staffo Reappointment to the medical staffo Practitioners can have privileges without membership to the medical staff

• Privileging: The delineation of medical staff privileges. Ensuring members of the staff are practicing: o A very specific job descriptiono Within their scope and within the capabilities of the hospitalo Have clear guidance on what they are allowed to do and what not allowed to

doo Practitioners can have membership in the medical staff without having

privileges

Medical Staff Role and Board Role

• Medical staff:o Makes recommendations based on medical staff credentialing criteria and its

assessment of providers

• Board:o Makes decisions on the recommendations using defined criteria

• It can be tempting to defer: o Board members can be intimidated by a “medical” domaino Physicians can be threatened by non-physicians involved in their domaino BUT, the board must be willing to fully engage in order to perform its duty

• The board abdicates its role at the peril of its members, the hospitals, and the medical staff – and most importantly, patients

Sources of Authority

• Medicare Conditions of Participation

• Revised Code of Washington

• Washington Administrative Code

• The Joint Commission (reference as a standard of practice, even if you’re not accredited)

Potential Areas of Risk

Areas of Risk:

What You Approve, You Promote

The board creates risk by:

• Allowing physicians to use the process to:o Lock out the competition

o Guarantee a livelihood

• Applying criteria: o That are unspecific

o Unequally

• Failing to follow the criteria

How Risk Can Manifest

• Federal or state antitrust claims of “economic credentialing”o Sherman Act, FTC Act

• Failure to meet the requirements of the Health Care Quality Improvement Acto 42 U.S.C. §§ 1101-52

• Failure to meet Washington state legal requirementso Chapter 7.71 RCW

• More legislation is on the way: SB 5998

o Whistleblower protection and penalties for failing to follow the law

• Negligent credentialing

Background:

Negligent credentialing is recognized in more than 30 states,

What is it?

• Negligent credentialing is a form of direct liability for hospitals

• Similar to actions for negligent hiring or negligent retention

NEGLIGENT CREDENTIALING

In a nutshell:

It is the imposition of a duty on corporate health care providers and their staff to properly screen physicians who are given permission to see patients within the provider’s walls, regardless of whether or not they are ever actually employed by the corporate provider.

Thus, granting privileges to practice in the hospital can be a negligent act if there was cause for concern with the abilities of the physician, which can impose liability on the institution in the event the physician harms a patient.

NEGLIGENT CREDENTIALING

Where negligent credentialing is recognized, there are generally three elements:

(1) The hospital fails to meet the standard of reasonable care in granting privileges;

(2) The physician then breaches the standard of care in treating a patient; and,

(3) The granting of staff privileges to the negligent physician was a proximate cause of the plaintiff’s injuries.

NEGLIGENT CREDENTIALING

SOOOO….

Based on those elements, if the physician was not negligent, the hospital is not negligent.

AND…. A finding that the physician was negligent does not automatically mean that the hospital was negligent in its credentialing.

(A physician could have an exemplary record, and nevertheless fall below the standard of care in an isolated incident).

We are likely to see attempts at this cause of action in situations where the same physician has the same issues….over and over.

NEGLIGENT CREDENTIALING

1) Thorough, specific procedures should be in place to evaluate the credentials and competency of physicians seeking privileges.

2) These procedures must be explicitly followed and should be scrutinized even more thoroughly (as it seems inevitable that there will soon be another avenue to hold hospitals directly liable).

3) This cause of action, will permit situations where an individual defendant doctor either settles (or is otherwise not involved in the litigation), and the hospital is still forced to defend against the doctor’s negligence as an element of the credentialing claim.

** To avoid liability for negligent credentialing, hospitals must be diligent, comprehensive and thorough in the credentialing process and physicians seeking privileges should be prepared to offer full and fair disclosure of all issues, and to have their credentials and behavior examined.

Take-Aways Regarding Possible Negligent Credentialing

This bar on “waiving the privilege” is that non-negligent health care facilities may be found liable for credentialing a physician with a negative past.

An institution’s peer review committee may have had rational justifications for granting staff privileges to a physician even in the face of a questionable resume or background – however, this information will not be admissible.

CAN’T BE USED AGAINST HOSPITAL….CAN’T BE USED TO ITS BENEFIT EITHER!!

The Consequences?

This isn’t negligent credentialing – but can have same outcome.

Institution may be held responsible for the negligence of a non-employee because patient thought doctor was an employee and relied upon it.

Areas relied upon:

• Consent forms

• Hospital coats and badges

• Website materials and statements

(“Our Physicians”….)

Another area of institutional liability for actions of a credentialed physician

• Yes, I’m a doctor

• Yes, I work at the hospital

• Yes, I’m the only option for you at the hospital

• Yes, I wear a coat and badge that has the hospital name and emblem on it…

WHY WOULD YOU THINK I WORK FOR THE HOSPITAL?

Apparent Agency at a Glance ☺

Best Practices

Initial Appointment

• Burden is on applicant

• It is easier to deny initial appointment than reappointment - be picky

• Review credentials, disciplinary action, National Practitioner Data Bank reports, debarments,

• Pause and consider carefully if there are gaps, lawsuits, etc.

• Set a rigorous standard

Reappointment(typically every two years)

• Burden is now on the board

• Consistent application of specific reappointment criteria is critical

• Criteria should include a review of internal information on performance

• Review physician data for the procedures they are permitted to perform

• Process and criteria should allow for adjustment in scope of privileges, depending on physician’s performance

• Shifting focus to continuous monitoring and feedback

Process for Establishing Privileges

1. Clinical department recommends criteria, which should be:• Objective: whether for procedures (frequency standards) or diseases

• Based on a recognized authority

• Consistent with quality goals

2. Credentialing committee reviews

3. Medical executive committee reviews• Encourage true review, not tacit agreement to defer to other

departments

4. Board reviews• Board has responsibility for final decision

• Dependence on medical staff is not a defense

Criteria for Privileges

• Should be specific to each physician based in individual skillsets and training

• Be concerned if: o Every physician in a particular specialty has the same set of privileges

o Every physician in the hospital has the same set of privileges

o Privileges rely on language like, “adequate clinical skill and judgment

• Medical staff departments should recommend criteria for their specialty

• For the last 6 years, Joint Commission surveyors report that 50% of ambulatory health care organizations were noncompliant with Joint Commission Human Resources (HR) Standard HR.02.01.03:

“The organization grants initial, renewed, or revised clinical privileges to individuals who are permitted by law and the organization practice independently”

* These individuals are permitted to provide care and services without direction or supervision consistent with the privileges granted by the organization

Compliancewith Joint Commission

1) Missing Details:• Missing required supporting documentation

• Missing required training

• Not following up on education/work “gaps”

2) Incomplete Applications:• Blank portions

• Missing supporting documentation

• Incorrect info on application

• Make sure application is competed before submitting!

• Peer recommendations (Do you have them?/Are they REALLY peers?)

Frequent Credentialing Errors

3) Credentialing Mid-Level Providers

4) Training Complete?

• Some institutions require additional postgraduate training for credentialing criteria

• Completion of Residency?

• Board Eligible and/or Board Certified

5) Initial Granting of Privileges pending completion…

but NEVER completed…..

Frequent Credentialing Errors

• Scope of Practice:

Identify the scope of practice, including rules and regulations that cover the type of care the providers are required to give to patients. This may include federal/state laws; requirements from Board of Medicine or licensing boards

• Qualifications:

What qualifications does the provider need to have in order to be privileged in your organization? This includes education, training, experience, specialty areas, board certifications. This is determined by the organization, but should be specific to the privilege being granted.

• Primary Source Verification:

Verification of qualifications by the original source (or approved verification agency)

Best Practices

• Know what Documents Need to be Collected:

Primary source verification

Peer and faculty recommendations

Providers’ written statements re: health conditions that would impact ability

List of previously granted, renewed or revised privileges/any denied privileges

• Follow your own Policies and Bylaws:

Joint Commission may not require…but if your policies do require it – DO IT

(Drug testing, criminal background checks, health screenings)

• Allow Sufficient Time for Renewal:

Allow enough time to get what you need – have the information before the granting of privileges

Best Practices

Some warning signs to consider:

• Applicant does not want to give permission to contact previous employers

• Applicant does not give specific information (references don’t give specifics either)

• Voluntary or involuntary surrender of licensure and/or medical staff membership

• Limitation, reduction or revocation of clinical privileges

• Gaps in employment

RED FLAGS

• Short spans of time at hospitals/facilities

• Prior hospital or medical board discipline

• Gaps in insurance coverage/inability to secure coverage

• Excessive numbers of professional liability claims/cases

• Pattern of types of professional liability cases

• Substance abuse issues

RED FLAGS

KNOW YOUR BYLAWS!!!

FOLLOW YOUR BYLAWS!!!!

UPDATE YOUR BYLAWS!!!!

DON’T JUST “RE-CREDENTIAL”….BE THOROUGH!!!!!

DON’T BE PRESSURED TO JUST GET IT DONE!

BYLAWS, BYLAWS, BYLAWS…

• Follow procedures and bylaws

• Complete documentation

• Follow up on issues (new and old)

• Remember, may create areas of liability for the institution

Credentialing Issues Reach Beyond Patient Care

Questions and Answers

Appendix:

What the Law and Accreditation Bodies Say

Other Types of Credentialing

• Provisional credentialing: allowing practice prior to completion of the full credentialing processo New applicants, urgent patient care need, and time limited

o Requirements for granting this status must be met such as licensure, NPDB query,

confirmation of relevant training and experience

• Telemedicine credentialing: Site with the patient relies on the distant site to credential the physician – distant site must provide information

• Delegated credentialing: Relying on another source to perform some or all of the credentialing functionso Clear documentation of the role of the delegated entity

o Board responsibilities still apply

o Process must conform to policies and bylaws

Chapter 70.43 RCW

• The governing body…shall set standards and procedures to be applied by the hospital and its medical staff in considering and acting upon applications for staff membership or professional privileges

• Except where the practitioners are employed, the board cannot discriminate based on the type of practitioners applying to the staff RCW 18.71 (physicians), 18.57 (osteopath), 18.22 (podiatrists)

RCW 70.41.210

The chief administrator … shall report to the department when the practice of a

health care practitioner is restricted, suspended, limited, or terminated based

upon a conviction, determination, or finding by the hospital that the health care

practitioner has committed an action defined as unprofessional conduct

… shall also report any voluntary restriction or termination of the practice of a

health care practitioner … while the practitioner is under investigation or the

subject of a proceeding by the hospital regarding unprofessional conduct, or in

return for the hospital not conducting such an investigation or proceeding or

not taking action

RCW 70.41.220:Maintaining Records of Restrictions on Privileges

Each hospital shall keep written records of decisions to restrict or terminate privileges of practitioners.

42 CFR 482.12: Medicare CoPs

• Decide what categories of practitioners are eligible for the medical staff

• Appoint members of the medical staff

• Assure medical staff is accountable to the board for the quality of care

• Ensure the criteria are individual character, competence, training experience, and judgment

• Assure that under no circumstances are staff membership/privileges solely dependent on certification, membership, fellowship, in a specialty body or society

Hospital Districts: RCW 70.44.062(1)

• (1) All meetings, proceedings, and deliberations of the board of commissioners, its staff or agents, concerning the granting, denial, revocation, restriction, or other consideration of the status of the clinical or staff privileges of a physician or other health care provider… shall be confidential and may be conducted in executive session:

• …final action of the board as to the denial, revocation, or restriction of clinical or staff privileges … shall be done in public session.

WAC 246-320-131

The governing body must…

(3) Appoint and approve a medical staff;…

(5) Approve and periodically review bylaws, rules, and regulations adopted by the medical staff before they become effective.

Credentialing Criteria:MS 06.01.03 – Joint Commission

• Clearly defined process, outlined in the medical staff bylaws, where medical staff make recommendations and the board approves

• Hospital verifies that the practitioner requesting approval is the same one represented in the documents provided: • Identification

• Primary source verification for licensure, training, and competence

• Competency should be demonstrated in: o Patient care

o Medical/clinical knowledge

o Practice-based learning

o Interpersonal communication skills

o Professionalism

o System-based practice

RCW 70.41.230

• Hospitals must seek information from physicians

• Hospitals must seek information from hospitals

• Hospitals shall share information

• The Medical Care Quality Assurance Committee shall provide information

Privileging Criteria:MS 06.01.05 – Joint Commission

• Current license, certification, registration verified by primary source

• Training verified by primary source

• Evidence of physical ability to perform requested privilege

• Data from professional practice review from an organization where applicant has privileges

• Recommendation from peers/faculty

WAC 246-320-161: Medical StaffThe purpose of this section is to establish the development of a medical staff structure, consistent with clinical competence, to ensure a safe patient care environment.

The medical staff must:

(1) Adopt bylaws, rules, regulations, and organizational structure that address:

(a) Qualifications for membership;

(b) Verification of application data;

(c) Appointment and reappointment process;

(d) Length of appointment and reappointment;

(e) Granting of delineated clinical privileges;

(f) Provision for continuous patient care;

(g) Assessment of credentialed practitioner's performance;

(h) Due process;

(i) Reporting practitioners according to RCW 70.41.210; and

(j) Provide for medical staff communication and conflict resolution with the governing authority;

(2) Forward medical staff recommendations for membership and clinical privileges to the governing authority for action.

Resources

• The Board’s Role in Medical Staff Credentialing: o http://trustees.aha.org/quality/the-boards-role-in-medical-staff-

credentialing.shtml

• Comprehensive Accreditation Manual for Hospitals – The Joint Commission