Who has ultimate responsibility for decisions about medical staff membership and why? How should this responsibility be fulfilled?

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Who has ultimate responsibility for decisions about medical staff membership and why? How should this responsibility be fulfilled?

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Here is a post and I want you to reply back to it in relate to the component of the healthcare Law

the post:

Question #1:  Who has ultimate responsibility for decisions about medical staff membership and why? How should this responsibility be fulfilled?

Answer: The hospital board is ultimately responsible for the decisions on its medical staff membership using peer review and its selection criteria for its medical staff members.  The medical staff organization is found on a set of bylaws approved by the governing board.  The structure of the medical staff its areas of delegated authority the functions of its committees and the lines of communication between the staff and the governing board are defined by these bylaws.  The Joint Commission (2014) describes that The governing body and the medical staff define medical staff membership criteria which as deemed necessary by the governing body and the medical staff may include licensed independent practitioners and other practitioners.

For a multihospital system that has separate medical staffs for each facility the governing board of this system must have a communication/interaction mechanism between each medical staff and the corporate office.  The position of physician liaison also called chief medical officers (CMO) corporate director of medical affairs or other similar titles is commonly set up to help facilitate the relationship coordination between staff physicians and hospital & system administrators.  Moreover physician representations on the hospital board is advisable although there may be interests conflicts between the clinic and the operation.

I believe that with the implementation and popularization of ACA and the Health Care Quality Improvement Act the policies and procedures for fulfilling the responsibility of hospital board should be more detailed for example in the fair hearing process.  Furthermore since there is a global shortage of healthcare professionals during the current COVID-19 pandemic some governors issued temporary waives of certain hospital licensing requirements which has brought a challenge to hospital boards on how to ensure the competency of healthcare providers in their hospitals.

Question #2:  What differences are there if any between the due process standards that apply to public hospitals and those that apply to private hospitals?

Answer: Nowadays the dichotomy difference between the due process standards that apply to public/governmental hospitals and private hospitals is very minor compared to the 1980s.  Public/government hospitals are state actors that are the entities/persons who are acting on behalf of the governmental body and is thereby subject to the regulations under the United States Bill of rights including the First Fifth and Fourteen Amendments which prohibit the federal and state governments from violating certain rights and freedoms (Wikipedia n.d.).  Hence public/government hospitals must grant due process and equal protection in their medical staff proceedings and employment policies.  Meanwhile private hospitals apply essentially the same rights in their medical staff appointment process although private hospitals are not directly subject to the principles of the Fourteen Amendments.

Hellstern (2012) points out that in public/government hospitals physicians receive their due process rights from the U.S. Constitution while physicians in private hospitals receiving due process rights from multiple sources especially from the Health Care Quality Improvement Act of 1986 (HCQIA).  Hellstern also states that our society expects physicians to advocate for patients that is why physicians in private hospitals have due process rights from so many different sources.

Personally I support the trend that both physicians from public/government hospitals and private hospitals have the same due process rights/standards even if their rights are under different sources of rules/legal/regulations.  After all essential fairness is a bottom line for the operation of a healthy society.

Question #3:  What  of professionals are permitted membership on the medical staff? (research how it is done in Texas so you can add that info to your general answer)

Answer: After decades of vicissitudes practitioners including MDs DOs DMDs DPMs DCs and other physicians are given medical staff privileges depending on the state laws. The accreditation standards of The Joint Commission for medical staff privileges are based on the areas of general competency including a) patient care b) medical or clinical knowledge c) practice-based learning and improvement d) interpersonal and communication skills e) professionalism and f) systems-based practice.

We use the bylaws of the Texas Health Hospital Mansfield (2020) as an example.  The  of medical staff membership include: Active Courtesy and Affiliate.  The common qualification for these three  of medical staff membership is to continuously meet the qualifications for medical staff membership and for their assignment to the appropriate department.  In addition the qualification of Active staff consists of practitioners who actively and regularly a) provide patient care services to patients in the Hospital with at least 24 Patient Contacts over the previous 24-month term of appointment for those with Clinical Privileges b) provide patient care services to patients in the Hospital with at least 72 shifts of work in a 24-month term of appointment (Hospital-based services) and c)  support the Medical Staff and Hospital by participating in efforts to fulfill Medical Staff and Hospital functions.  The qualification of Courtesy staff consists of practitioners who a) are members of the active staff of an acute care hospital accredited by The Joint Commission b) provide consultation including admitting privileges as requested c) limit their Patient Contacts to a total of less than 24 Patient Contacts for a 24-month term of appointment or for Hospital-based services a total of less than 72 shifts of work for a 24-month term of appointment; and d) apply for transfering to the Active Staff if they meet the aforementioned qualifications for membership on the Active Staff.  The qualification of Courtesy staff consists of practitioners who a) demonstrate a need and desire for an affiliation with the Hospital and b) limit their practice to the ambulatory office and/or post-acute care setting. Moreover any member staff category change will be processed only with the member documents in compliance with these qualifications under these bylaws.

According to the qualification description above we can find that principally the individuals qualifications is an essential determinator for the decisions on medical staff membership instead of any bias against a particular school of practice. I believe that hospitals and physicians can maximumly improve the quality of care if they can insist to use individuals qualifications as the criteria for medical staff membership.

Question #4:  What issues of confidentiality and liability does the hospitals peer review function present?

Answer: Peer review refers to a discreet retrospective evaluation of a physicians performance to check whether the performance meets the standards of care.  The medical peer review process is a sine qua non of adequate hospital care (U.S. v. Harris Methodist Fort Worth 1992). Hence peer review records are important evidence for both the plaintiffs and the defendants in medical cases. Confidentiality of the peer review is essential to the effective functioning of staff meetings and a full and honest process. Thus Congress protects its confidentiality to serve the public interest. The statues of confidentiality of peer review (e.g. information is protected from discovery or admission into evidence) vary from state to state sometimes from court to court which depends on the facts of the case. Generally privilege does not apply to records for example medical records or routine records which is not created for the purposes of peer review.

The Healthcare Quality Improvement Act (HCQIA) provides that the participants in the peer review shall not be liable in damages under any law of the United States or of any State with respect to the action.  There are four requirements for immunity: a) in the reasonable belief that the action was in the furtherance of quality health care b) after a reasonable effort to obtain the facts of the matter c) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures are fair to the physician under the circumstances and d)in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of c).

I agree that peer review is vital to ensure the quality of care and compliance with standards of care.  However it still brings legal liability risks under the HCQIA.  For example as Karen Owens JD an attorney with Coppersmith Brockelman in Phoenix (Relias Media 2018) points out that there are substantive review pitfalls for peer reviews: peer review can lead to misunderstandings and incorrect judgments for the quality of a physicians care if a medical staff committee uses unqualified personnel to do a peer review. Hence hospitals should highlight the importance of a well-written special hospital bylaw and related policies such as fair hearing process in order to protect the peer review participants from being involved in potential defamation and legal liability.

Question #5:  Explain how the HCQIA establishes an objective reasonableness requirement rather than a subjective good faith standard for peer review committees.

Answer: To provide immunity against civil litigation damages for physicians and hospitals engaging in professional peer review committees HCQIA established the requirements for peer review committee to follow four objective reasonable general principles or standards: (1) The peer review action is based on an objective reasonable belief that would further quality health care (2) there is an objective reasonable effort in collecting the facts and data (3) there has been a fair (objective reasonable) notice and hearing for the reviewed physician under the circumstances (4) the resulting action from the peer review is reasonably believed to be necessary based on the facts collected according to (3).  The criterion of objective reasonableness was used for all four critical steps of peer reviews instead of subjective good faith standards simply because there are too many variables in defining a set of absolutely valid standard metric for any individual case whether it is made in good faith or otherwise subjective or objective.  Each peer-review case has unique initial human conditions and unique circumstantial boundary conditions. The correct standards that should be used for any individual case are predominantly determined by such uniquely variable initial and boundary conditions and an optimal standard metric set to adequately cover the infinite number of permutations of peer review cases simply cannot be found.

Question #6: What are the medical staff privileges of contract physicians and CAM and integrative healthcare providers?

Answer: A hospital has the duty to meticulously select medical staff physicians and to monitor the quality of care.  Thus a hospital may be held liable for negligence in granting privileges to independent contractors.  The philosophy of integrative healthcare is focused not only on the conventional treatment of a patients condition but also on the whole person (mind body spirit) to promote health and wellness. The concept of complementary and alternative medicine (CAM) refers to the integrative healthcare providers and adopts some of the non-traditional medical practices such as acupuncture Eastern medicine naturopathy massage therapy herbal medicine yoga meditation herbalist Ayurveda hypnotherapy and shamanism etc.  The implementation of CAM is consistent with the emphasis of ACA such as cost reduction coordinated care and preventive healthcare. The liability issues for independent nonphysician CAM and integrative healthcare practitioners such as massage therapists or herbalists should bear the liability by themselves. In contrast in a hospital setting the hospital/corporation should be responsible for the medical privileging issues such as the respondeat superior issue licensure credentialing and health plan coverage etc. and for nonphysician CAM and integrative healthcare practitioners. The rules and regulations vary state by state but the general principle is that the privilege should be based on individual merit instead of discrimination against an entire class of providers.

No cases on the disputes of nonphysician CAM and integrative healthcare practitioners have sought and been denied medical staff privileges in recent years. I believe that hospitals should be liable (at least partially) for the medical staff privileges for all the independent contract providers regardless of the scope of practice.  In my opinion Contract is another form of employment. Hence hospitals should take charge of the credentialing and related issues with the contract providers in order to be liable for their quality of care.

Question #7: Research the status of economic credentialing in your state and the effects of the Baptist Health case and similar decisions.

Answer: American Medical Association (AMA) defines economic credentialing as the use of economic criteria unrelated to quality of care or professional competence in determining a physicians qualifications for initial or continuing hospital medical staff membership or privileges. The detail of the Texas economic credentialing statue (Sec. 241.1015. PHYSICIAN COMMUNICATION AND CONTRACTS) are as follows (Horty Springer n.d.):

A hospital by contract or otherwise may not refuse or fail to grant or renew staff privileges or condition staff privileges based in whole or in part on the fact that the physician or a partner associate or employee of the physician is providing medical or health care services at a different hospital or hospital system.
A hospital may not contract to limit a physicians participation or staff privileges or the participation or staff privileges of a partner associate or employee of the physician at a different hospital or hospital system.
This section does not prevent a hospital from entering into contracts with physicians to ensure physician availability and coverage at the hospital or to comply with regulatory requirements or quality of care standards established by the governing body of the hospital.
This section does not prevent the governing body of a hospital from:
limiting the number of physicians granted medical staff membership or privileges at the hospital based on a medical staff development plan that is unrelated to a physicians professional or business relationships or associations including those with another physician or group of physicians or to a physician or a partner associate or employee of a physician having medical staff membership or privileges at another hospital or hospital system; or
limiting the ability of hospital medical directors to contract with or hold medical staff memberships or clinical privileges at different hospitals or hospital systems provided that such limitations do not extend to the medical directors professional or business relationships or associations including those with another physician group of physicians or other health care providers other than hospitals or hospital systems.
A contract provision that violates this section is void.
In this section health care plan has the meaning assigned by Section 843.002 Insurance Code and hospital medical directors means physicians who have been employed by or are under contract with a hospital to manage a clinical department or departments of the hospital.

Although the statute of economic credentialing in Texas is not as detailed as some states such as Tennessee or Montana from my understanding this statute provides a clear framework for the economic credentialing for hospitals to check compliance with their regulations.

The Supreme Court of Arkansas in the case of Baptist Health v. Murphy holds that Baptist Healths policy that denied staff appointments or clinical privileges by adopting the economic credentialing amounted to an intentional tortious interference with the physicians business relationships with their patients.  This ruling is a typical persuasive precedent (HCPro 2010).  The claims of interference with prospective business relationships are offered although the specifics claim of tortious interference varies state by state. Besides the Code of Ethics of AMA generally disfavors the status of economic credentialing which impacts future courts ruling of impropriety of hospital action in similar cases.  HHS Office of Inspector General (OIG) also notes that hospitals should ensure their credentialing policies in compliance with all other applicable Federal and State laws and regulations some of which may prohibit or limit economic credentialing.

According to the discussion above when a hospital adopts economic criteria or establishes a standard for medical staff appointments and privileges it should work with their legal counsel to truly understand the principles of economic credentialing and ensure their legal compliance.

Question #8: Explain the concept of the ACO and its role in the 2010 health reform legislation.

Answer: Accountable Care Organizations (ACOs) refer to groups of doctors hospitals and other health care provides who come together voluntarily to offer coordinated high-quality care (providing the right care at the right time and avoiding duplication of services) to their Medicare patients (CMS 2021).  ACO is the creation under the Medicare Shared Savings Programs in the 2010 health reform legislation. The goals of ACOs are to improve quality coordinate care in varied settings and reduce unnecessary costs for the Medicare program. On one hand ACOs further strengthen the trend of hospital-physician alignment by integrated care delivery. On the other hand ACOs bring new management challenges and strain the traditional legal concepts of medical staff privileges. And These traditional viewpoints may need to be reconsidered and contractual and bylaws provisions reexamined as physicians become more involved in hospital governance under an ACO. For example under ACOs members of a physician group that provide exclusive services for certain hospital departments must be members of both the ACO group and the hospital medical staff.

Dr. Mark opined that ACOs lead to the evolvement of payment policies towards the trends of better value care and reduced costs (Piper 2010).  From my understanding the creation and development of ACOs motivates meaningful care redesign and improvement as well as payers’ commitment and accountability. The value-based payment will become the mainstream to replace traditional fee-for-service payments with the expansion of ACOs across the US. Additionally the implementation of ACOs helps us continuously improve the patient-focused service and ultimately achieve care improvement and cost reduction.

References

CMS. (2021). Accountable Care Organizations (ACOs). Retrieved on April 10 2021 from https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ACO

HCPro. (2010). Briefings on Credentialing. 19(12). Retrieved on April 10 2021 from https://www.thehealthlawpartners.com/files/boc_12_10_web.pdf

Hellstern R. (2012). Due process in due time. Emergency Physicians Monthly 19(2) 22.

Horty Springer. (n.d.). Texas Economic Credentialing Statute. Retrieved on April 10 2021 from https://www.hortyspringer.com/health-law-links/economic-credentialing-statutes/texas-economic-credentialing-statute/

Relias Media. (2018). Legal Risks Abound in Peer Review; Good Process Required Retrieved on April 10 2021 from https://www.reliasmedia.com/articles/142383-legal-risks-abound-in-peer-review-good-process-required

Piper K. (2010). Accountable Care Organizations in the Era of Healthcare Reform. Am Health Drug Benefits. 3(4) 242244.

Showalter J. S. (2020). The law of healthcare administration. Health Administration Press Nith edition..

Texas Health Hospital Mansfield. (2020). Bylaw of the medical staff of Texas Health Hospital Mansfield. Retrieved on April 10 2021 from https://www.texashealth.org/-/media/Project/THR/shared/Documents/PDFs/Locations/Mansfield/THM-Medical-Staff–bylaws—app-7-16-20.pdf

The Joint Commission. (2014). Program: Hospital. Retrieved on April 10 2021 from https://www.thechristhospital.com/Documents/Physician%20Resources/JointCommissionStandards.pdf

U.S. v. Harris Methodist Fort Worth 970 F.2d 94 (5th Cir. 1992).

Wikipedia. (n.d.). State actor. Retrieved on April 10 2021 from https://en.wikipedia.org/wiki/State_actor#:~:text=In%20United%20States%20law%2C%20afrom%20violating%20certain%20rights%20and