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Allied Health Professionals Employment,
Credentialing, and Peer Review -- How To
Navigate Through Murky Waters
Shirley P. Morrigan, Esq.
Foley & Lardner LLP
2029 Century Park East
Los Angeles, California 90067-3021
Telephone: (310) 277-2223
[email protected]
American Health Lawyers Association
Medical Staff, Credentialing, and Peer Review and
Labor and Employment Practice Groups
Joint Annual Luncheon
Philadelphia
June 26, 2006
LACA_740876.1
Items for Today’s Discussion:
• Who credentials AHPs – the Medical Staff or
Human Resources? (or both?)
• What if the Interdisciplinary Practice Committee (or
any other committee that credentials AHPs) wants
to credential a PA to do neurosurgery?
• How should the Medical Staff Executive Committee
interact with the Hospital Committee that
credentials AHPs?
• How should a Medical Staff address requests by
persons to practice complementary medicine in the
Hospital?
• What kind of procedural rights should be offered to
which type of AHPs and for what types of actions?
1
Introduction
• Continuing trend Æ Increasing numbers of
Allied Health Professionals (AHPs) in
hospitals.
– Sophisticated technological services
have created new specialists.
– Managed care has led to scrutiny
by hospitals, payors, and physicians
as to cost-effective services.
2
Introduction (cont’d)
• Result Æ Proliferation of credentialed and
limited-licensed practitioners.
– Human Resources Department (HR) and
Medical Staff Office (MSO)
responsibilities have blurred. AHPs are
not members of the Medical Staff and
may not be hospital employees.
3
Introduction (cont’d)
– Numerous questions have arisen:
• What is an AHP?
• What is the AHP affiliation with the
hospital?
• When Medical Staff members bring
AHPs to the hospital, what are the
hospital’s credentialing obligations?
• Who is responsible for credentialing
and reviewing AHP practice?
4
Introduction (cont’d)
– Numerous questions (cont’d):
• Is there a difference
between credentialing and
reviewing AHPs employed by the
hospital versus non-employees?
• What information is necessary for
credentialing?
• Must the hospital make Data Bank/
licensing board queries for AHPs?
5
Introduction (cont’d)
– Numerous questions (cont’d):
• Are AHPs covered by the
Medical Staff Bylaws and
fair hearing plan?
• Must the hospital have a committee
that credentials AHPs? Should it be a
Medical Staff committee?
6
Who Are AHPs?
• Non-Physician Providers Providing Direct
Patient Care Services Who Are:
– Licensed or certified by the state; or
– Qualified by academic and clinical
training and experience in a discipline.
7
Who are AHPs? (cont’d)
– Numerous Examples of AHPs
Clinical Psychologist
Physician Assistant
Nurse Practitioner
RN/First Assistant
MSW/LCSW
MFT
Nurse Anesthetist
Nurse Midwife
Licensed Midwife
Acupuncturist
Clinical Perfusionist
Speech Pathologist
Physical Therapist
Speech Therapist
Optometrist
Occupational
Therapist
Psychology
Technician
Pharmacist
Dietician
Ophthalmology
Technician
Pathology Technician
Respiratory Care
Practitioner
Orthopaedic
Technologist
Yoga Instructor
Guided Imagery
Practitioner
Healing Touch
Practitioner
Massage Therapist
8
Who Are AHPs? (cont’d)
– Numerous unlicensed, uncertified
groups.
• State Licensure; Board
Certification;
Private Certification.
– Licensure Æ refers to a
state-issued license.
• e.g., RN, Psychologist,
Licensed Clinical Social Worker
9
Who are AHPs? (cont’d)
– State certification Æ refers to state
recognition of certification by a specified
private association or professional
society.
• e.g., Nurse Anesthetist – licensed RN
certified by the state, based on
certification by Council on Certification
10
Who are AHPs? (cont’d)
– Private certification Æ AHP is not
certified by the state but may be by a
private organization.
• Issue as to whether the individuals
belong to a recognized category.
• e.g., “Certified” Orthopaedic Physician
Assistant.
– Some Groups Æ no license or
independent certification or accreditation
but emerging as separate AHP category.
11
AHP Permission to Practice at a Hospital
• AHPs are not members of the Medical
Staff.
– Qualified practitioners gain “AHP Status,”
not Medical Staff membership.
• Decisions must be made as to an entire
category or subgroup, not as to one
individual.
12
AHP Permission to Practice at a Hospital (cont’d)
• Must follow a fair process for evaluating
which categories will be permitted to
practice.
– Multi-disciplinary committee of Medical
Staff reviews issues and submits
recommendation to Board.
– Board review, including written or oral
input from persons proposing AHP
categories and the
broader medical
community.
13
AHP Permission to Practice at a Hospital (cont’d)
• Factors in Decision
– Must establish reasonable and rational
grounds for excluding certain practitioners
that are not based on eliminating
competition, e.g., antitrust. Need a
convincing patient care and administrative
justification for denial of a category.
• Is this a “true” AHP category?
• Does the hospital need the service?
14
AHP Permission to Practice at a Hospital (cont’d)
• Factors in Decision (cont’d)
• Is the hospital’s standard of practice
higher than that which can be
provided by the AHP? (e.g., will a
nurse practitioner provide the
same level of care as a
Board-certified physician
in neurosurgery?)
• Is there a closed staff or
an exclusive contract?
15
AHP Permission to Practice at a Hospital (cont’d)
• Some facilities permit AHPs to assist
physicians who employ them, even
though an AHP category has not been
approved by Board.
SHOULD NOT HAPPEN.
16
Scope of AHP Practice at Hospital
• Determine which documents
govern AHP activities.
– Can limit governing documents to AHP
Rules and Regulations or Medical Staff
Bylaws can also govern AHP activity.
– Advantage of including Medical Staff Bylaws
is ability to make general Bylaws provisions
govern AHP activities and conduct (e.g.,
contents of application, leave of absence,
reinstatement, temporary privileges or
prerogatives).
17
Scope of AHP Practice at Hospital (cont’d)
• What to include in the governing
document(s)?
– Decide if Practice Prerogatives
or Clinical Privileges will be
offered for each AHP category.
• JCAHO requires certain AHP
categories receive Clinical Privileges
not Practice Prerogatives, e.g.,
Physician Assistants, Nurse Midwives,
Nurse Practitioners and Nurse
Anesthetists.
18
Scope of AHP Practice at Hospital (cont’d)
– Determine qualifications for each AHP
category.
• Develop a reasonable and rational
process for deciding if an AHP
category requires licensure,
certification (state or private) or
training or experience.
–If certification is required,
decide which specific
agency’s or association’s
certification is required.
19
Scope of AHP Practice at Hospital (cont’d)
–If nothing is required, develop criteria
delineating required qualifications for
person (e.g., high school diploma,
prior experience).
–Avoid running afoul of antitrust laws
by making qualifications for AHP
categories more stringent than that of
others, e.g., requiring CPR
certification of an AHP even though
physicians are not required to have
CPR certification. Unlikely an AHP
will ever run a code in a hospital!
20
Scope of AHP Practice at Hospital (cont’d)
–Be practical Æ don’t require certain
qualifications simply because others
in hospital are required, e.g., AHP
required to be CPR certified simply
because hospital employees are
required to be CPR trained. Again,
it is unlikely an AHP will ever run a
code in a hospital!
21
Scope of AHP Practice at Hospital (cont’d)
– Delineate scope of activities permissible
for each category.
• Never include the list in the Rules and
Regulations: create a separate
document. Changes in activities are
made to list without having to formally
amend Rules and Regulations.
• Incorporate list by reference in Rules
and Regulations.
22
Scope of AHP Practice at Hospital (cont’d)
– Determine level of prior experience
required for qualification in each
category.
• Categories for practitioners who obtain
extensive clinical experience during
training may not need additional
experience
post graduation to
qualify for category
e.g., PAs.
23
AHP Qualifications and the
Credentialing Process
• General Qualifications EVERY AHP Must
Satisfy.
– Documents his/her current licensure or
other legal credentials in a category of
AHP that has been
approved for practice
prerogatives or clinical
privileges at hospital;
24
AHP Qualifications ... (cont’d)
– Documents his/her experience,
background, training,
demonstrated ability, physical health
status and mental health status, with
sufficient adequacy to demonstrate that
any patient treated by him/her shall
receive care of the generally recognized
professional level of quality, and that s/he
is qualified to provide a needed service
within the hospital;
25
AHP Qualifications ... (cont’d)
– Is determined on the basis of documented
references, to adhere strictly to the ethics
of his/her profession, as applicable, to work
cooperatively with others, and to be willing
to participate in and properly discharge
responsibilities as determined by the IDP,
Medical Executive Committee, and the
Board;
– Participates in continuing education
applicable to his/her specialty as required
by his/her licensing/certification board and
of the IDP;
26
AHP Qualifications ... (cont’d)
– Demonstrates acceptable
professional liability insurance
and coverage (including
specific procedures); and
– Maintains a relationship with one or
more supervising physicians, dentists,
or podiatrists as appropriate.
– No physician, dentist or podiatrist who
has not completed observation
requirements and been released form
observation should supervise any AHP.27
AHP Qualifications ... (cont’d)
– No new applicant or current AHP can be
excluded from federally funded
programs.
– Require Continuing Disclosure.
• AHP shall notify the hospital
immediately if AHP’s license,
certification or other legal credential
has been suspended, revoked or
placed on probation or has been
charged with a felony or lost practice
prerogatives at another hospital.
28
AHP Qualifications ... (cont’d)
• Require initial and reappointment
applicants to submit a complete
application. Return to applicant
if not complete with deadline for
completion. Applicant’s failure to meet
deadline creates cause to terminate
application process or file the application
“administratively incomplete.”
29
AHP Qualifications ... (cont’d)
• Application should be processed by Medical
Staff or Human Resources in the same
way:
– Verify education, past experience, peer
references, licensure or certification, and
liability insurance Æ require original
sources for each.
30
AHP Qualifications ... (cont’d)
– Modified Medical Staff requirements.
• Exception:
JCAHO Standard MS. 4.20 requires all
“licensed independent practitioners” be
privileged through the same Medical
Staff process.
• What is a “licensed independent
practitioner?”
• Recommend applying this standard to
Psychologists, LCSWs, PAs, Nurse
Midwives, Nurse Anesthetists, and
31
Nurse Practitioners.
AHP Qualifications ... (cont’d)
– Follow same process for AHPs who
are employed by a physician.
– “Sponsor’s Statement” alone is not
enough.
– Employer agrees
to notify if
relationship ends.
32
AHP Qualifications ... (cont’d)
• What to Query:
– Must query NPDB for licensed health
care practitioners or those “otherwise
authorized” by the state to practice;
– Query state boards for licensed, certified,
or registered AHPs;
– Process should be delineated in Medical
Staff Bylaws or in separate AHP Rules
and Regulations incorporated by
reference into the Bylaws.
33
AHP Qualifications ... (cont’d)
• Denial of application (not administrative):
May report to NPDB for licensed/
credentialed AHPs.
– Develop consistent policies so reports
are made for serious events that should
become part of national system.
34
AHP Qualifications ... (cont’d)
• Application Approval Process:
– Application to MSO or HR where
credentialing materials gathered, original
sources contacted and documents
verified Æ (AHP Committee) Æ
Section or Department Æ Credentials
Committee Æ MEC Æ Board.
35
AHP Qualifications ... (cont’d)
• Temporary Practice Prerogatives or
Clinical Privileges.
– Same issues as for physicians.
– Must follow Medical Staff
Bylaws requirements.
– Make sure Bylaws are
JCAHO-compliant.
36
AHP Qualifications ... (cont’d)
• Supervisor’s Statement of Responsibility.
– Supervisor agrees in writing that
Supervisor will:
(i) be responsible for AHP supervision
and all care provided by AHP including
AHP’s acts and omissions;
(ii) assure that the AHP provides only
services for which s/he has received
practice prerogatives or clinical
privileges;
37
AHP Qualifications ... (cont’d)
(iii) indemnify and hold hospital, its
officers, directors, employees,
representatives, agents and Medical
Director harmless;
(iv) assist with review of AHP’s
credentials and performance
evaluations;
(v) notify hospital immediately upon
termination of relationship with AHP.
– Agreements do not relieve hospital of
responsibility for care provided!
38
Limitations and
Fair Procedure Rights for AHPs
• AHPs are NOT:
– eligible to become Medical Staff
members (except psychologists);
– required to pay Medical
Staff dues, but may be
required to pay AHP dues;
– generally entitled to fair
procedure rights, but not
the same as those for
Medical Staff.
39
Limitations ... Rights for AHPs (cont’d)
• EXCEPTIONS to General Fair Procedure
Rules.
– JCAHO requires hospitals to offer all
“licensed independent practitioners” hearing
and appeal rights, including:
• Physician Assistants and Nurse
Practitioners receive a fair hearing
process, which need not be the same as
the Medical Staff (and should not).
• JCAHO has indicated that hearings need
to be conducted by an unbiased group
and that appellate review be conducted
40
by the Board.
Limitations ... Rights for AHPs (cont’d)
• Recommend hospital develop “minor”
hearing and appeal rights for AHPs who are
not licensed independent practitioners
when adverse action involves:
– medical disciplinary cause or reason;
– professional competence.
Benefit − avoids AHP jumping
straight to court for
adverse action.
41
The AHP-Hospital Relationship
• Regardless of type of affiliation, hospital has
obligations regarding credentialing and
oversight.
– Hospital is responsible for
all care provided and must
have mechanisms in place
to ensure competence (“corporate
negligence liability;” licensing and
accreditation standards.)
– Mechanisms may differ, depending on the
categories of AHP, but the obligation
remains.
42
AHP Committee – Medical Staff Relationship
• AHP Committee as a Medical Staff committee
– Highly recommended.
– Can be a subcommittee of
Credentials Committee.
• Advantages of AHP Committee as Medical
Staff Committee.
– Confidentiality may be protected or
privileged by state law.
– Members benefit from certain practice
prerogatives and immunities.
– May facilitate broader Medical Staff
involvement and hospital-wide scope of
oversight.
43
Supervision and Performance
Review by the Medical Staff
• Recommend assigning each AHP to a
department or division.
– AHP should be subject to an initial
observation period and ongoing
proctoring, monitoring and chart review,
by another AHP or a physician, dentist or
podiatrist.
• Specify time period or number of
cases for initial observation.
44
Supervision and Performance Review
by the Medical Staff (cont’d)
– Must comply with department or division
standards.
– Written list of specified practice
prerogatives or clinical privileges that
may be performed by each category of
AHP must be developed by (AHP
Committee and) Credentials Committee
and used as a guide in supervising and
evaluating AHP.
45
Supervision and Performance Review
by the Medical Staff (cont’d)
• Supervisor must complete periodic
evaluations which become part of Medical
Staff and any employment file.
– Hospital Employees: Supervised by
physician or AHP assigned by
Department. Notification to HR and MSO.
– Others: Observed by employer and
hospital staff.
46
Reappointment
– Follow same time intervals as Medical
Staff, for both HR-credentialed and
MSO-credentialed.
– Require submission of complete
application for reappointment,
updating all information from previous
appointment.
47
Reappointment (cont’d)
– Performance and Skills:
• Require department, HR and sponsoring or
employing physician, podiatrist, or dentist
to provide MSO with information regarding
performance both for employees and for
non-hospital employed AHPs.
• Implement a system of proctoring and
monitoring of clinical activity and chart
review. This will require cooperation
between Medical Staff and hospital
administration.
• Employees, annual performance reviews
should be part of reappointment process.
48
HCQIA and the AHP
• Reporting is permissive.
• Immunity applies to physicians and
dentists.
• Immunity probably applies to Medical
Staff committees.
– Not administrative committees.
49
HCQIA and the AHP (cont’d)
• Federal court – if an AHP is
able to gain access (e.g.,
through allegations of racial
discrimination):
– Then activities probably are not
immunized under HCQIA.
– State laws that privilege or protect peer
review proceedings will probably not
apply, although negotiation can be done
with counsel about scope (e.g., of
requests for documents).
50
HCQIA and the AHP (cont’d)
• Therefore, must exercise great caution with
review of AHPs.
– Watch out for the influence of competitors!
– Make sure standards are objective and
clear and applied in an equal, even-handed
manner.
51
Coalition for Patient Rights
Press Release
• 6/8/06 Formed a group with the following goals:
– Ensure consumers have access to the health
care providers of their choice.
– Oppose what they said were efforts by
physician groups to limit the scope of practice
for non-physicians.
– Respond to initiatives by AMA and other
physician groups to restrict the ability of nonphysician practitioners to continuing practicing
in areas in which they are already licensed.
• Rosa Gonzales, Director,
American Nurses Association
52
Coalition for Patient Rights (cont’d)
• 24 organizations, represents more than
3 million health care professionals, such as:
– psychologists
– nurses
– chiropractors
• Main purpose is to act as a bulwark against the
efforts of the AMA’s Scope of Practice
Partnership (SOPP), a legislative, regulatory,
and judicial advocacy made up of the AMA, 6
national medical specialty societies, and the
state medical associations from California,
Colorado, Maine, Massachusetts, New Mexico,
and Texas.
53
Coalition for Patient Rights (cont’d)
• Mitchell Tobin, Senior Director of Professional
Practice Affairs for the American Association
of Nurse Anesthetists, said that the AMA has
adopted more than 7 resolutions in the past
decade that would restrict the scope of
practice for AHPs.
– Attempted to restrain the ability of licensed
psychologists to prescribe medications.
– Attempted to required physician supervision
for nurse anesthetists.
54
Coalition for Patient Rights (cont’d)
• At its annual House of Delegates meeting in
2005, the AMA Board of Trustees adopted
Resolution 814, which called on the SOPP “to
study the qualifications, education, academic
requirements, licensure, certification,
independent governance, ethical standards,
disciplinary processes, and peer review of the
limited licensure health care providers and
limited independent practitioners.”
• Tobin says the AMA and other groups are
“ratcheting up” with the creation of the SOPP,
“declaring war” on non-physician providers.
55
Coalition for Patient Rights (cont’d)
• Ultimately, according to Ms. Gonzales, the
debate is about reimbursement and how
practitioners can bill for their services.
• According to Tobin, the stated rationale for the
physician partnership is to restrict the scope of
practice by non-physicians to protect the public
health.
• “It is unfair to say that any
of these activities threaten
patient safety,” he said.
56
Coalition for Patient Rights (cont’d)
• Tobin said he thinks the expansion of nonphysician services challenges organized
medicine’s sense of security.
• It is “outrageous” that the physician
groups are attempting to restrict
patients’ access to non-physician
services….” (Tobin)
• Further, he said, allied health care providers
are “indispensable” to underserved
populations, including rural areas and the
growing number of seniors.
57
Coalition for Patient Rights (cont’d)
• “We respect individual
physicians.”
• “All of our groups work
cooperatively with individual
physicians every day.”
• “We need to work together to help patients.”
• The AMA’s actions are draining resources,
time, and money that could be better directed
toward patient care.
(Tobin)
58