AHLA's Speaking of Health Law
Medical Staff Policies and Their Risks
Alexis L. Angell, Shareholder, Polsinelli PC, Lindsey P. Ridgway, Vice President, Deputy General Counsel, Integris Health, and Scott Nichols, Partner, Nichols Brar Weitzner & Thomas, share their insights and experiences on a range of medical staff issues. They cover physician behavior and professionalism concerns, physician health issues, HR and peer review, educating physicians on medical staff policies, and challenges related to reporting. Alexis, Lindsey, and Scott spoke about this topic at AHLA’s 2024 Advising Providers: Legal Strategies for AMCs, Physicians, and Hospitals, in New Orleans, LA. From AHLA’s Medical Staff, Credentialing, and Peer Review Practice Group.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Alexis L. Angell, Shareholder, Polsinelli PC, Lindsey P. Ridgway, Vice President, Deputy General Counsel, Integris Health, and Scott Nichols, Partner, Nichols Brar Weitzner & Thomas, share their insights and experiences on a range of medical staff issues. They cover physician behavior and professionalism concerns, physician health issues, HR and peer review, educating physicians on medical staff policies, and challenges related to reporting. Alexis, Lindsey, and Scott spoke about this topic at AHLA’s 2024 Advising Providers: Legal Strategies for AMCs, Physicians, and Hospitals, in New Orleans, LA. From AHLA’s Medical Staff, Credentialing, and Peer Review Practice Group.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
<silence>
Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit American health law.org.
Speaker 3:Hello everybody, and welcome to an A HLA podcast. Uh, today we are going to be discussing medical staff policies and their risks. My name is Alexis Angel. I am a shareholder with polsinelli. I'm based in Dallas, Texas. I'm also the outgoing chair of the medical Staff Peer Review and Credentialing Practice group for a HLA. And I had the honor and joy and privilege of speaking with Lindsay and Scott in February, 2024 at the Advising Providers Program. And that is really the basis of our podcast today. And with that, I will toss it to Lindsay to introduce yourself.
Speaker 4:Thanks, Alexis. Uh, hello. My name is Lindsay Ridgeway. I am Vice President and Deputy General Counsel for Integris Health. I am located in Oklahoma City, and I'm happy to be reunited with both of you today.
Speaker 5:Thank you, Lindsay . This is Scott Nichols. I'm a lawyer with Nichols Bra Weitzner and Thomas in Houston, Texas. And I'm a healthcare lawyer, and I enjoyed working with Lindsay and Alexis at our February presentation as well.
Speaker 3:Well, it's so exciting to be back with you all. I , what I love about what we will be discussing today is that we have three different perspectives. I usually work on the medical staff side with the medical executive committees to help them as external counsel . Lindsay , you are in-house, as you said at Integris and Scott, you have the privilege of working directly with the physicians and representing them .
Speaker 5:Yes.
Speaker 3:And so let's start off with that, Scott, we, one of the issues we talked about at the conference was physician behavior and professionalism concerns. And in your experience, Scott, of representing physicians , um, is that something that you, you're familiar with?
Speaker 5:Very much so, you know, you think often historically, physicians end up in medical staff issues or with medical staff issues because of clinical concerns. I would say that the vast majority of my experience in recent years anyway, has been , uh, representing physicians who have kind of landed under the mi under the microscope because of behavior issues. And it's al it's almost always shocking to them that somebody else thinks their behavior is not acceptable.
Speaker 3:Lindsay , what behavior issues have you seen in your practice?
Speaker 4:Oh, <laugh>. Well, you know, I , I think without getting too specific, you know, I think we, we see the same things from healthcare system to healthcare system and hospital, hospital around the country. And I think a lot of that probably reflects the , the changing environment. I think we probably have a lot more burnout with physicians than we did, certainly pre pandemic. And sometimes that's reflected in poor behavior and professionalism issues. And so we see things like , um, physicians who might yell at colleagues or staff. They may act inappropriately , um, with patients directly sometimes getting upset with patients or feeling like they're not being listened to or heard. Um, when it comes to the medical advice that they're giving, sometimes we see , um, behavior that manifests itself through, unfortunately through quality issues , um, through exhaustion. And so we, we try to address that as soon as those are identified. But it certainly seems to be something that is increasing kind of around the country right now. You know, and , and speaking with my peers, we're seeing more professionalism issues, I think, than quality issues when we're looking at kind of how these have weighed out in the past.
Speaker 3:And I can add onto that just to say that that's the same thing I'm experiencing in my practice. It's less about competence and mostly about professionalism, behavior conduct , everything from throwing sharps, kicking trash cans , um, and even just rude or dismissive tones. Um, and something that I always wanna make sure that we highlight in these conversations are that we ultimately, it's about patient safety. You know, I make a joke up when I became a lawyer. I told my grandma I was gonna go to law school and she said, oh, I guess we can have one more lawyer in this country. But I actually feel really good about the work I do <laugh> in that it is about ultimately in , in my mind, protecting patient safety. I also tell a story about my mom being a nurse and, you know, the experiences that she had in the late seventies and early eighties, and how a lot of that behavior that she would describe to me now, it's just certainly not considered , um, acceptable. So we've, we've just seen a shift, I think, just within the community and the , in the past few decades. Um, so with that, what resources or creative solutions have you all found effective in addressing these issues? And Scott, I'm gonna throw that to you first.
Speaker 5:Sure. And so one of the things that can , can be addressed, you know, with a physician who is , uh, showing anger, or at least the perception from the step is that step , he's angry and has a difficult time controlling his temper, is to suggest something on the front end, like an anger , anger management course, or maybe even therapy. Something that shows that your client is acknowledging the issue and is willing to do something about it to change that behavior. And that he's sincerely trying to do that. Oftentimes I find that if I'm involved early enough, the lawyer , uh, for the hospital or the MEC and I can talk this through and work something out through kind of , uh, an attempt at change of behavior and the physician kind of understanding how he's coming across to the staff. More often than not, we're able to do that as long as , uh, we have those discussions and try to work towards a solution before, as an example, a suspension or a revocation of privileges, obviously.
Speaker 3:Lindsay , in your experience, what have you seen that can best address the behavior issues that we've been talking about?
Speaker 4:Sure. You know, so I think to your point, Alexis, you know, our, our top priority is, is always patient safety, right? That it's always gonna be the provision of safe quality healthcare for our patients and our community members. But it's also incredibly important that we have a just culture for our physicians and our providers. It's incredibly important that they feel supported and , um, understood in what can be obviously an incredibly stressful profession. And so we have taken a very deliberate approach to have , um, medical staff bylaws and associated policies, including a professionalism policy, a practitioner wellness and health policy that allow us to provide support and resources that are not always coming from a punitive approach. So it's having committees in place, it's having medical staff leaders in place that know that they have the ability to have that collegial conversation, to have that kind of men , and I'm using air quotes for mentoring because it's not a formal mentoring, but, you know, a supportive approach for these physicians if they need it at any given time. We have, from time to time, found the need , um, to ask physicians to , um, attend professionalism courses, to attend ongoing education or even, you know , um, receive assessments with various , um, centers and , um, professionals throughout the country that can really focus on helping rehabilitate the issue at hand and get physicians back to the practice of medicine.
Speaker 3:What I love about what you're both saying is that early intervention is key in these issues, and that what I'm hearing from the hospital side, there's not an interest in just moving someone off of a staff, right? I mean, it takes money and time and investment to bring someone in, to recruit someone to a community, to bring them into your staff. And not every hospital is in a position to just bring on the new person. Um, like, like as if physicians were widgets, that's not how we're , they're being treated, right ? And instead, rather, there are so many options out there when you have a physician who has a representative like Scott who is willing to address the concern and move forward, then we can actually see change. Um, do either of you have maybe a success story or, or kind of the , the best outcome that you would wanna share?
Speaker 5:I'll go first. I already mentioned it. Uh, with regard to the anger management course, I suggested , uh, we were able to avoid recently , uh, uh, a situation where the physician was under the microscope because of several staff members, nurses actually in the or , uh, feeling intimidated by my client because he blew his top, you know, had a temper issue. And, you know, I spoke with counsel for, you know, I immediately asked to speak to counsel for the hospital who at that point was in-house counsel, and we were able to resolve it by me encouraging my client to take the anger management course. He completed it, and , uh, he showed contrition and investigation was closed. And so that's a great success story. And that's recently, and that was a course I suggested that he take. I had to of course , uh, encourage him and kind of socialize him to the idea, but he did it. He completed it, and he actually said he was better for it afterwards.
Speaker 3:I love that
Speaker 4:Lindsey Scott, what I love that you just said, and I think what is so key in these situations is the physician showed contrition and an understanding of the underlying issue. Even if it takes some difficult conversations to get there. I mean, that's always the first step, right? And I think that we so often see these situations where sometimes a physician might think that they might be able to appear before the group, right ? That's asking them to go do something, whether it's a leadership council or an MEC , and say, no, you're wrong. That's not a problem. I'm not being a jerk, or I'm not being an inappropriate, and I've never seen that work. I don't know about either of, of you, but I've never actually seen that work because the, the group that has identified an issue is doing their due diligence, for lack of a better term, on the, on the front end. They're , they're substantiating that these are legitimate concern. And so I think exhibiting that desire to improve and acknowledge the problem and seek treatment is, is really a critical step. And so we've seen success with that as well with , um, physicians that might not realize that their behavior comes off as rude or dismissive or , um, mm-hmm , <affirmative> perhaps even aggressive from time to time. Um, and it doesn't, in some instances, it really doesn't take much other than a couple of hours speaking to someone who can show them this is how that could be perceived. This is the danger of that. And they immediately realize, that's not the person I want to be. That's not who I'm intending to be, and it's not allowing me to provide the best care possible. And so we have seen that work in , in many instances.
Speaker 5:Absolutely. And in this case, as I find to be the case, many times the hospital or MEC did not want to suspend him or revoke his privileges. They really needed him. And, you know, many of them personally liked him. So we worked together to make that happen. Lindsey , you mentioned something about a professionalism course. I keep saying anger management because that was in my , uh, in my vocabulary, but professionalism as a broader topic might be professionalism course might be more appropriate than just an anger management course, as an example.
Speaker 3:Yes. And there are many options that are available. Um, so I wanna, we have so many topics to hit on. This was fabulous. And the next topic that's on our list, I think speaks directly to this physician health issues. Uh, Lindsay , I know that in our presentation , um, this was something that you, you cared very deeply about. So can, let's discuss now the importance of addressing physician health issues. We, we understand, especially out of covid , um, we're seeing high levels of burnout. We're seeing mental health issues with our practitioners. We, we all know that that substance abuse can be an issue. Mm-Hmm , <affirmative> . So let's talk about , um, the policies and what, what hospitals are doing to combat that. Yeah,
Speaker 4:You're, you're absolutely right. I mean, I think that this is , this is something that hospitals have an ability to be more proactive than perhaps we've been in the past. And , um, to , to take an approach that's not unnecessarily punitive when it comes to practitioner health issues. Um, at, at my organization, we've had great success with a practitioner health policy, and it allows basically any caregiver within our organization or any medical staff member to raise a concern and say, Hey, this person is not acting as they normally would. You know, maybe we're seeing some changes in behavior, or perhaps they might, they might appear to be impaired. And it really lays out the next steps for how can we immediately, of course, identify if there is an imminent threat to, to patient safety. Of course, that's always the first step. But then from there, getting the appropriate testing in place , um, speaking to that physician, giving them an opportunity to kind of respond and then helping them actually secure treatment if that's the next step. Um, and I think that you're, I mean, you're absolutely right. It's not, our goal is not to suspend physicians or terminate physicians from the medical staff. That's, that's always the last , um, resort. And it's not just because it is of course, a hassle and it's expensive and it's hard to recruit, but also because we recognize that we value our relationships with these physicians and their are our colleagues and our friends, and we care about their wellness and, and their wellbeing. And so having a policy structure in place that is really, to Scott's point, clearly laid out that says, this is exactly what we're going to do here. The , these are the releases we're going to obtain, so you can speak to healthcare providers and we can also understand what the next steps are, and here's who's going to manage it. And our recommendation is that it not be managed by the MEC because you want it to be managed by a group of peers that are , um, more the carrot than the stick, right? That I don't actually have disciplinary authority , um, at least at first to seek , is this something that we can address and get the right treatment in place and have this person back practicing safely? Um, and then of course, if, if that doesn't happen and sometimes it's just unavoidable, then there are are subsequent steps that you can take that's send it to the MEC as needed. But the first step in just trying to get them the treatment that they might need goes a really long way, not just with that physician, but also the rest of the medical staff because they see that you care about the people that you work with. Um, and you know, Scott, I know that you've encountered these issues as well. Um, in , in your practice, have you seen any really successful instances or perhaps, you know, lessons learned of, of how they might have been handled by other hospitals or healthcare systems?
Speaker 5:Well, the programs that you're talking about in particular, I have not come in in into contact within my experience. You know, when we did this program in February, I loved the policies that your system had in place to address this kind of issue. And I think it would help , uh, my clients or potential clients , uh, go a long way without ending up under the microscope in a negative way. So I've not personally had that experience with these kinds of programs. I'm still in the phase of we're recommending a professionalism course or a anger management course, as opposed to kind of a broad overall , uh, system that's in place to address these issues early on .
Speaker 4:Yeah .
Speaker 3:I will say, oh , go ahead.
Speaker 4:Oh, Alexis, I , I was just gonna say, I know that these get very complicated if there's an engage an employment component to it, right? And I know that you and I have had discussed, you know, as we were preparing for this, you know, it , it can just be really important just to know where those risks or landmines are when it comes to the inter the overlap between employment and the medical staff side. I dunno if you have any, any thoughts on that?
Speaker 3:Yes, absolutely. So that, that's a broad question, and that's something that as we are seeing more and more physicians throughout the country become employed, that's another trend, right? That we've seen. So that's, this is becoming more and more important. I think there are a variety of A HLA programs and, and others that, that speak about the issues of employed physicians versus non-employed physicians in Texas where I practice for the large majority of physicians, they are not gonna be employed. But there are gonna be certain pockets where we do have to understand that basis between the , um, employer side and the, the medical staff side. I do a lot of work in speaking with my clients to help understand that when we're protecting our peer review privilege, our state peer review privilege, Mm-Hmm. <affirmative> , even though we may have, let's give an example. Let's say that a or surgeon is , um, has been alleged to have sexually harassed a nurse. That nurse is typically an employee at the hospital. And whether that physician is an employee of the hospital or not, HR is now involved. So this is the time where , uh, HR is gonna have their own investigation. The medical step side is going to have their investigation, and I'm using investigation with a little eye and <laugh> . We are , um, we might be working on those parallel tracks, but, and hrs information can flow into the med staff side because that HR information doesn't have special protections, whereas the med staff side does have those special protections from peer review. So it can be confusing sometimes for folks to say, well, why can't we have HR and let's say the chief of staff do the investigation together. Well, if you do, you're potentially waiving a peer review privilege. Um, I'm not saying that you are, but that's just something that you wanna consider. So my advice is always to keep those separate but parallel. Um , I, I'll invoke my mom again, when I was learning driving, she said, the most important thing is to know your lanes. You know, know what lane you're gonna be in to turn, know what lane you're gonna be in to go straight. And I, I say it's the same thing with, with HR and peer review. Everyone needs to know their lane and stay in it. I'm gonna take that. I like that. Sure . It's a great one .
Speaker 5:I , I have a thought to add to that. So you talked about employed physicians, well , sometimes, not exactly an employed physician, but a , a physician who is employed by a group, and the group then has , uh, a , a , an contract or an agreement with the hospital to provide the services. And there are terms in that agreement as to what happens to the physician if he is either , uh, his privileges are revoked at the hospital or he is under investigation at the hospital or the NBC or alternatively if he's terminated from the employment of the group. And so what really drives that is the language in the agreement between the two entities. And that comes up because sometimes the MEC or hospital will suspend the physician, and then you'll have the employer , uh, the the physician group employer reach out to the lawyer for the physician and say, well , what's up over there? We need to know what's up over there so we can figure out what we're gonna do over here. And then you're dealing with the peer review privilege issue as well. And so how does that , uh, how does that interact with the physician, group employer and what information they're entitled to? A lot of that, again, is driven by the agreement between the two entities. So as the lawyer representing the physician , I've gotta be aware of both of those issues.
Speaker 3:Absolutely, absolutely. Well, and, and I'll give a a final example here on our physician health issue of, you know, a hypothetical where the employer, the physician group is the one working most closely with that physician, and they are noticing a change in that physician's behavior. You know, all of a sudden they're seeing that, you know, families are complaining that have never complained before. Um, he is not just showing up to work the same way that he used to, but for whatever reason, that employer group doesn't have the same sort of policies and , um, resources that the medical staff does. So I, in this hypothetical, the group actually goes to the hospital to say, Hey, we're concerned about our colleague. And the hospital is then able to say, well, we've got a wellness group. They can reach out to him. You can have that discussion and you can find out more than often there's something going on in that physician's life personally, there could have been , um, a death in the family. There could have been family members that have now had to move in with that physician that have small children. Mm-hmm . <affirmative> , you know, just a lot of changes that have led to this. Um, what was been perceived as a change in behavior. Um, I think we've also had physicians need to go to see a psychiatrist be assessed and then find out that there's some sort of concern. Sometimes it is a health concern that is outside of mental health. Sometimes it is a literal disorder or a brain issue. Um, we, we've seen an issue where you found someone , um, had a tumor that was impacting their personality. Well, I'm really glad we found that out because then they were able to get the treatment they could get. So I think that just also speaks more to the power of when you have that sort of group that folks can reach out to, that can then intervene. Because these physicians, they work really hard. They work crazy hours. They've been trained since residency to kind of put their own health on the back burner. So when we're able to come in and give them that resource of, Hey, folks are concerned about you, what's going on? That can just be exactly what they need for , for themselves and for their families.
Speaker 4:Yeah. And one thing I would add to that, and it kind of speaks to what you're both talking about with respect to that line of communication, is that can be a lot easier to accomplish if you have an information sharing policy or process in place. And because we know this is where it gets really complex, you know, in theory this is all pretty easy, but then when you put it in application, there's a lot of gray area here. Mm-Hmm . <affirmative> , I mean, this is why we have our jobs, right? And I think a lot of the times it's, it really comes into play if you have an information sharing policy that permits you to, you know, push that information or share that information either to the employer, from the employer, to the , the medical staff , um, and if it's built the right way, it not only can allow us to have those conversations without the fear of compromising privilege, but I think it gets better care for that physician because there's, there's more collaboration there and there's the ability to have the person that perhaps they are closest to or who might be the best person to send them and , and talk to them down, or I'm sorry , sit them down and say , Hey , maybe this is the best approach . You need to go get some help. Um, be able to have that conversation in a way that's appropriate pursuant to those policies in the bylaws.
Speaker 3:I think that's a great point, Lindsay . And, and for anyone listening who is working within that kind of scenario where you have physician groups that have contracted with your medical staff or your hospital and you don't have information sharing agreements, this is something that you wanna consider bringing up with your, your team. Um, because to , to Scott's point, and to Lindsay's point, it just allows that communication to flow so much better. Mm-Hmm . <affirmative> . And it ultimately helps everyone reach a , a conclusion that is , is best and, and as, as fast as possible. We also wanted to talk about the general idea of, you know, Scott, you, you said this when we gave our presentation that, you know, physicians may have read the bylaws once when they first joined the staff. Um, and Lindsay and I are talking about, you know, we've got our, we've got our hearing plans, we've got our corrective action section, <laugh> , we've got our peer review policy. Um, you know , and , and Lindsay and I are breathing these, you know, in day and out the day in, day out. The , the physicians not so much. Uh , what, what could you wanna say, Scott, about what your clients, when they come into you, what information do they have? What education do you then need to provide? W how , what , what do you have to say there?
Speaker 5:Sure. So even a , I listen in to both of you talk about these issues here today. And as I mentioned in February, all of that is well and good, but if your physician is not familiar that all of that's available, then it , it's meaningless. So how do you , uh, take a busy physician and educate him on these issues? It's tough. And I suppose there are CMEs at the hospital, staff meetings and whatnot, and they have to be open to hear it, but they need to be educated on what's available to them and what, what their actions , uh, what the consequences of those actions are, and then if they get to that point, what they can do to resolve it. And so , uh, to answer your specific question, Alexis, when I see the physician , um, you know, I'm not even sure they've ever read the medical staff bylaws. And I can assure you they're aware of none of the things that you guys have just been talking about. And they are there usually or some form of that. And so I help educate the physician, but it would be great if there was some way to better educate them about all of this, this information , uh, other than just in something in writing in the bylaws or policies. Mm-Hmm . <affirmative> , because we know physicians , um, are busy and they're not likely to read those on a regular basis. Maybe you have to pound it into their head in meetings , uh, you know , emails and, and , and mail and stuff that they're not likely to focus on too much. But that's just my thought because I see it from the other end.
Speaker 4:Yeah. You know, Scott, I've seen an unfortunately more than one situations in which, because physicians might not be aware of an affirmative obligation that's within those bylaws or those policies to inform the medical staff office of something. Like let , let's say they resign while under investigation at another facility. Most bylaws will have a reporting obligation to, you know, the hospital on that and say, you have to let us know within a certain number of days. And if they're not aware of that reporting requirement, then it gets really messy and it can, that can happen pretty quickly. And so I think you're absolutely right. It's education for those individual medical staff members. It's also education for medical staff leaders, which is easier said than done because medical staff leadership tends to change, you know, year to year . And so that, you know, we , I think we'd all love to say, yeah, we went through all of this a couple years ago, so we're good for a couple of years, but that's just not the case. And yeah. Right . We know that. And so, you know, I, I absolutely agree. It's, it's one of those things that you just , you know, we need to find time to prioritize on an, at least an annual basis with medical staff members and medical staff leaders.
Speaker 5:I was just thinking, I, I think just a session with the physicians or the staff call it a , did you know, meaning , meaning did you know that if this happens, this will happen? Uh, kind of thing. The one that always comes up, you just mentioned it, is if they resign while under investigation. Unless that lawyer , that physician has a lawyer, they have no idea that they're gonna be reported if they resign while under investigation. No idea.
Speaker 4:So speaking of reporting <laugh> , yes . You know, I, I know that this is a hot topic always, and the National Practitioner Data Bank guidebook has changed a lot since 20 15, 20 18, even more re recently with respect to proctoring, you know, so Alexis, I know you deal with this a lot. Um, what challenges do you see your clients encountering with respect to reporting?
Speaker 3:So, a hundred percent it is acknowledging and being aware of how the , what those changes have been. The regulations themselves have not changed, but the guidance that's put out by the National Practitioner Data Bank in this guidebook that is accessible to everyone on the internet, that is what has changed. And the NPDB will even have very specific Q and as , um, within the reporting sections to speak about what is reportable and what is not. And there are lively discussions happening across , um, the legal field , uh, uh, within medical staff, attorneys , uh, circles about what needs to be reported, what, what doesn't. One thing that I'll say, when we saw the change in 2018 that stated that it's a physician agrees not to exercise their privileges while an investigation is pending. So why would someone do that? They would usually do that to avoid having a suspension. They would do that to give the hospital some breathing room to do an investigation without having to put the suspension, you know, on the physician's record that has now, according to the 2018 update, that is immediately reportable. When I first read that, I thought, okay, well if they agree to it for more than 30 days, because we know a suspension that sits in place for more than 30 days has to be reported. We, I speak with folks at the data bank re uh , regularly. They don't know which clients I'm calling on behalf of. We never use doctors' names. Um, but I had a talk with them and the feedback we received was, it's immediately reportable. Okay, that is a change <laugh> and how folks are able to do things. And I remember when, when a lot of those changes came out, we would give presentations to clients and it was the tools that have been taken out of your toolbox Mm-hmm . Um , changes that have been made to reporting proctoring. Um, it's seen now, as you know, it's a restriction on someone's privileges. They're not able to exercise those, those privileges independently if they're required to have someone in the room with them. And if that is now in place for more than 30 days from the time that it's imposed, that is reportable. And so the , the questions I have, the discussions I have are often with leadership and medical staff that don't want to necessarily trigger a report if they don't have to, but they do wanna put something in place to address the concerns that have been brought in front of them that they've substantiated. And so there can sometimes be the , um, the discussion of how concerned do we need to be about MPDB reporting? And I know I'll say it 'cause I've heard it on the MPDB side, they give the statistic that , um, at some point in the late 2010s, only half of all hospitals had ever submitted an MPDB report. So that's why they are coming so forward to say, we are, obviously there are things that are occurring that are not being reported. But for folks like my clients where they've always been fantastic at the reporting, they're just feeling a little bit more constrained. Um, and I know Scott, we've even seen, you and I are both in Texas and we've seen even more , um, stringent reporting requirements come out of our state really as a response, I would say to Dr. Christopher Dun , um, where now a suspension, if it's only, if it's more than 14 days in place, that is now required to be reported. Where as previously it was the same 30 days that we had at the federal level. And Scott, I know you have thoughts on that.
Speaker 5:Yes. Well, the question comes up when it is determined that it's reportable , when do you actually report? So for instance , let's say your , there's an adverse action that impacts your privileges for than 30 days , then it's reportable. But when do you report? Do you get the opportunity to go through your due process fair hearing until its final appeal and then report if it's remains adverse? Or do you have to report it at day 31? And it's my view that you must give the physician his due process, his ability to , uh, go through each level of appeal and get a final result. And then if it remains adverse to him and his privileges, then you report. There are some who disagree,
Speaker 3:And I'm one of those who disagrees. I would say that when it's the case of a suspension, that's an action that's been put in place. So when that has happened beyond whatever that reporting period is required, whether it's on the 15th day in Texas or the 31st day for the NPDB reporting, that's when that report is required. When it is a recommendation such as a recommendation to revoke, that is what entitles someone to a hearing, a suspension also entitles someone to a hearing. I, I agree. Um, but now you go through that process before it's finalized. And then the other thing I'll say, and I know it gives you no comfort, Scott or your client's , no comfort is obviously if the , um, hearing panel were to determine that the suspension should not have been put in place, obviously that report would either be updated or voided or whatever needed to, to occur , um, because of that outcome. But, but I hear you that in the meantime, the physician is, is still having to live with that report.
Speaker 5:Fortunately, Alexis, there are other lawyers who represent hospitals who disagree with you, <laugh>, and I'll just leave it at that.
Speaker 4:Yeah, we'll leave the agreement to disagree right there. But I think there we go. Touched on something that, you know, the , the two most dreaded words for any, at least in-house attorney fair hearing. Right. You know, we, we absolutely understand the necessity of this process and , um, but it's, it can be a lot , uh, you know, it's, it's, it is from a logistics standpoint alone, incredibly difficult to manage. But in preparing for our presentation back in February and in our continued conversations, you've both had a lot of really great ideas on, you know, opportunities to maybe , um, negotiate , um, away from a fair hearing earlier on, or opportunities to avoid those fair hearings. And I know that every in-house attorney would certainly love to hear more about that.
Speaker 3:Yeah. And I can speak,
Speaker 5:I'm sorry ,
Speaker 3:I'll briefly <laugh> and then Scott, you can fill in. Um , sure. So essentially one of the items that is also reportable to the data bank is if a physician resigns while under investigation. And we, we mentioned that earlier. Well, if a physician is in a situation where they have the opportunity to request a fair hearing, they have requested it, they're going through the process with their attorney, they're realizing how expensive this is going to be, the time commitment this is going to take, this is , I mean, and for folks that haven't been through it, this is a trial, it's an administrative trial, you know, and it's not held in a courtroom, it's held in an administrative boardroom, but it is a trial , um, that physician could see, well, maybe is there some way to potentially quote unquote settle. Is there a way that , uh, we cannot go forward with the fair hearing? Um, but you know, everyone else is still meeting what their obligations are. And one way to do that is if the physician resigns while under investigation, while this fair hearing is pending, there can be an opportunity for the physician's counsel and the counsel for the medical staff to communicate and come to an agreement on language that can be reported to the data bank to say, yes, this position did have a recommendation regarding their competence or conduct. Yes, the , um, they were offered a fair hearing, but due to the cost, et cetera , they , um, re they chose to resign and as a result, no final findings were made. Um, and things along those lines. And that is sometimes a better report that the physician is willing to take than the report of the final determination that Yep , after a hearing and an appeal, this was still upheld and now they've lost their privileges. It also sometimes gives them more room, and Scott, you can speak to this more, what they do next, you know, they go to another hospital, they sometimes go to another state, and that can sometimes help them be in a better position to explain what occurred again without having that final finding.
Speaker 5:Oh , that's true. It's, it's like a trial. It's grueling. It's usually between five and 10:00 PM at night. Yep . I like to say in the , in the basement of a hospital, <laugh> , usually it seems like it's always in August for some reason. So it's hot <laugh> <laugh> in my experiences. That's true . But yeah , you can , you can negotiate language and that's almost always better than , uh, what the language would be if left to their own devices, their own meaning the hospital or NEC . So that's a good thing. But if your client doesn't like the report period, there's almost no other option than to fair , which again, is expensive. Um, you know, I have had the pleasure of doing several and I have turned a panel, and that certainly helped us resolve. So that's not likely because the burden is so low , uh, meaning the, the MEC's burden to show what they did was reasonable or really more appropriately the physician's burden to show what what the MEC did was unreasonable. And that's, that's a pretty low standard. So it's difficult to turn a panel in an MEC , but if you do do it, you can usually resolve it. So that , those are, those are my thoughts.
Speaker 3:Yep . And for the times that you do have to go to the fair hearing it , we've all agreed how key it is to have an experienced hearing officer. Mm-Hmm . <affirmative> , someone who has knowledge of the peer review process, has knowledge of the Healthcare Quality Improvement Act, the relevant state statutes and has been with been through this , um, by having a great hearing officer, you have someone in the room that can just help keep us all on track. They can call the balls and strikes so that folks can put on their witnesses, put on their evidence, and the hearing panel gets to make that decision. At the end of the day, I just wanna say thank you so much. This has been, it's really been so much fun getting to know you all and , um, and get to work so closely with you. And it's always fun to talk to folks who speak med staff. And so with that, I'm gonna do, I did it a presentation. I'm gonna do it again. Anyone that's not a member of the medical Staff Peer Review credentialing practice group for A HLA. If you are listening to this podcast, you need to be a member. So please go to a HLA <laugh> , figure out how to sign up for that practice group and become involved. And with that, we'll have everyone have a great day. Excellent . Thank you . Thank you , Lindsay . Thank you, Alexis .
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA, speaking of health law, wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American Health law org .