Ambulatory Surgery Center Leadership Conference 2015

Medical Staff Credentialing and Peer Review Presented By: California Ambulatory Surgery Association

LA / NY / SF / DC / arentfox.com

Order of Presentations 9:00 – 10:00 Ambulatory Surgery Center Structure: The Ambulatory Surgery Center’s Physicians and the “Organized Medical Staff”

10:00 –11:30 The Medical Staff’s Structure: Guiding the Medical Staff (Medical Staff Bylaws and Rules & Regulations)

11:30 -12:30 Lunch

12:30 – 1:30 Selecting the Members of the Medical Staff: The Credentialing Process

1:30 – 2:30

Evaluating and Elevating the Quality of Care Provided by Medical Staff Members: Peer Review and Quality Improvement

2:30 – 3:30

The Benefits of Effective Credentialing and Peer Review/The Risks Inherent in Deficient Credentialing and Peer Review

3:30 – 5:00

Networking Reception

Speakers and Moderators: Arent Fox, LLP Members, Ambulatory Surgery Center Leaders, and Consultants

Steven V. Schnier, Esq. Lowell C. Brown, Esq. Erin L. Muellenberg, Esq. Bruce B. Ettinger, MD, MPH

Deborah Mack, MSN, CNOR, CASC

Ambulatory Surgery Center Structure: The Ambulatory Surgery Center’s Physicians and the “Organized Medical Staff”

Health care credentialing, quality improvement, and peer review are as important to the Ambulatory Surgery Center as to the general acute care hospital. The relationship of the “organized Medical Staff” to the executive leadership of the Ambulatory Surgery Center partnership or corporation. Eligible licensure categories for the Medical Staff: allopaths, osteopaths, and podiatrists. Appropriate organizational home for Allied Health Professionals: licensure, certification, and permissible scope of practice considerations.

An “Organized Medical Staff:” Why?

Core organizational and operational responsibilities of the organized Medical Staff and accountability to the Governing Body of the Ambulatory Surgery Center. Observing and elevating the quality of care.

Evaluating the credentials of those who will follow.

Satisfying the Directives of Those Who Matter: Accreditation Accreditation agencies appreciate the importance of effective credentialing and peer review to the well-run Ambulatory Surgery Center.

Accreditation standards are critically important, and must be reviewed carefully to assure that Ambulatory Surgery Center credentialing and peer review processes clearly comply.

Pertinent Accreditation Agencies AAAHC. Accreditation Association for Ambulatory Health Care (Skokie, IL). TJC (“JCAHO”). The Joint Commission (Oakbrook Terrace, IL). AAAASF. American Association for Accreditation of Ambulatory Surgery Facilities (Gurnee, Il). HFAP. American Osteopathic Association Healthcare Facilities Accreditation Program (Chicago, IL). IMQ. The Institute for Medical Quality (San Francisco, CA).

AAAHC: The “Accreditation Handbook for Ambulatory Health Care” Core Chapter 2: Governance (Subchapter 1: General Requirements). Core Chapter 2: Governance (Subchapter 2: Credentialing and Privileging). Core Chapter 2: Governance (Subchapter 3: Peer Review).

AAAHC: The “Accreditation Handbook for Ambulatory Health Care” (continued) Core Chapter 4: Quality of Care Provided.

Core Chapter 5: Quality Management and Improvement (Subchapter 1: Quality Improvement Programs). Core Chapter 5: Quality Management and Improvement (Subchapter 2: Risk Management).

JCAHO: The “Comprehensive Accreditation Manual for Ambulatory Care” Human Resources Chapter: Credentialing and privileging licensed independent practitioners/fair hearing requirements.

Human Resources Chapter: Credentialing and recredentialing programs. Element of Performance HR.01.06.01.

With Success Comes Regulation: Pertinent Regulatory Directives California State Department of Public Health (licensure). – Capen v. Shewry, 155 Cal. App. 4th 378 (2007) (surgical clinics). – California Health and Safety Code Section 1204.

Medical Board of California. Physician-owned facilities. – California Health and Safety Code Section 1248.15 (establishment of minimum standards for accreditation). Federal Department of Health and Human Services/Centers for Medicare and Medicaid Services (certification). Medicare Conditions of Coverage/Centers for Medicare and Medicaid Services.

Guiding the Medical Staff (Medical Staff Bylaws)

Essential Components of the Medical Staff Bylaws (1) Statement of Medical Staff purpose and mission.

Medical Staff composition.

Credentialing criteria and process.

Essential Components of the Medical Staff Bylaws (2) Standards for privileges determinations.

Formal reviews and potential modifications of practices.

Practitioner review opportunities.

Essential Components of the Medical Staff Bylaws (3)

Medical Staff leadership and committee structures.

Medical Staff standards for conduct.

Essential Components of the Medical Staff Bylaws (4) Purposes of required provisions of Medical Staff Bylaws. Elements warranted by accreditation directives: For example, by the Accreditation Association for Ambulatory Health Care “Accreditation Handbook for Ambulatory Health Care.” – Core Chapter 2: Governance (Subchapter 1(C): General Requirements). – Core Chapter 2: Governance (Subchapter 2: Credentialing and Privileging).

– Core Chapter 2: Governance (Subchapter 3: Peer Review). – Core Chapter 4: Quality of Care Provided.

Selecting the Members of the Medical Staff: The Principles of Credentialing The physicians and other providers who practice within the Ambulatory Surgery Center setting are as committed to quality of care as are practitioners who practice in the general acute care setting. The physicians and other providers who practice within the Ambulatory Surgery Center setting are therefore committed to the consequent necessary credentialing, quality improvement, and peer review programs.

Effective credentialing and peer review are ethical and risk management imperatives, without regard to regulatory requirements and without regard to accreditation directives.

The Medical Staff Credentialing Process “Credentialing” (and “peer review”) are to be distinguished from the world of “human resources.”

Different terms were chosen for a reason, and the reason is significant.

Relationship to the Governing Body’s ultimate authority and responsibility for credentialing decisions.

The Medical Staff Credentialing Process (2) The most important prerequisite to implementation of an effective peer review program is implementation of an effective credentialing program. Credentialing collaboration with the general acute care hospital, opportunities created by participation in a health care system, and optional arrangements with nearby hospitals. Credentialing and peer review processes can be conducted jointly: for example, in conjunction with the activities of a nearby general acute care hospital medical staff. But, it is important to make distinguishable, independent decisions.

The Medical Staff Credentialing Process (3)

Potential sharing of credentialing and practice information with related general acute care hospitals, medical groups, and practice associations. The benefits of sharing agreements.

The risks of sharing agreements.

Medical Staff Credentialing Criteria Wide discretion/the opportunity to be selective.

Requirements of specialty training, board certification, and maintenance of certification.

Commendable character and professional conduct.

Medical Staff Credentialing Criteria (2) Need for a particular specialty. Compatibility with the ambulatory organizational setting. Referral linkages (beware).

Medical Staff Credentialing Programs: Key Practical Components Required inquiries and sources of pertinent information. Medical Board of California reporting and inquiring. National Practitioner Data Bank reporting and inquiring.

Other significant credentialing resources.

Medical Staff Credentialing Alternatives and Cautions Potential utilization of a Credentialing Verification Organization (in house or independent).

Potential requirements of the California Confidentiality of Medical Information Act and the Federal Health Insurance Portability and Accountability Act.

Evaluating and Elevating the Quality of Care Provided by Medical Staff Members: Peer Review and Quality Improvement The Medical Staff recredentialing and peer review processes.

The advent of “Ongoing Professional Practice Evaluation” and “Focused Professional Practice Evaluation” programs. Relationships to the Governing Body’s ultimate authority and responsibility for recredentialing and peer review decisions.

Key Components of Effective Recredentialing Programs Required inquiries and sources of pertinent information. Recredentialing resources. Potential sharing of recredentialing and practice information with related general acute care hospitals, medical groups, and practice associations. Medical Board of California and National Practitioner Data Bank reporting requirements.

Peer Review from the Individual Practitioner’s Perspective The courts are learning that a physician’s access to the Ambulatory Surgery Center setting may well now be as important, or even more important, than is access to the general acute care hospital.

The history of Medical Staff “fair procedure” and its migration to other practice settings. See Potvin v. Metropolitan Life Insurance Company, 22 Cal. 4th 1060 (2000). Striking the right balance between rigorous, patient care-oriented credentialing and peer review and appropriate respect for collegiality and fairness.

“Fair Procedure” and the Ambulatory Surgery Center Designing review opportunities that include the essence of “fair procedure” without parroting the complexity of Medical Staff hearings.

The benefits and consequences of a process. – Immunities to liability (which are not enjoyed by the ordinary organization). – Protections for confidentiality. California Evidence Code Section 1157 and the California Constitutional “Right to Privacy.”

The Benefits of Effective Credentialing and Peer Review/The Risks Inherent in Deficient Credentialing and Peer Review The benefits of effective credentialing and peer review. – Commendable quality of care. – Sustainability and economic success. The potential consequences of inadequate credentialing, recredentialing, and peer review programs. The traditional risks: professional liability actions and negligence litigation.

The Advent of “Corporate Negligence” Hugar v. Tower Oaks Surgery Center, LLC, United States District Court (D. Md. July 28, 2014). Doe v. Goldweber, 112 A.D.3d 446 (Supreme Court New York 2013). Thurston v. Interfaith Medical Center, 66 A.D.3d 999 (Supreme Court New York 2009). Lawrence v. HCA Health Services of Tennessee, Inc., 2008 WL 3451799 (Tennessee Court of Appeals 2008). Burk v. Fairfield Ambulatory Surgery Center, Ltd., 2014 WL 4638835 (2014).

Questions (and Answers)

Thank you very much for this opportunity to participate. California Ambulatory Surgery Association Arent Fox, LLP