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Compliance codes out of compliance?

Hospital compliance codes are commonplace.   Ones that work with medical staff documents are positively exotic.
For the most part, compliance codes are painted with a very broad brush—or are downloaded from a very generic website-- and filed away in a drawer, to be pulled out when the feds are at the gate.  The author/consultant and often the compliance officer has no idea how many provisions conflict with medical staff bylaws, rules and regulations—adopted by the very same board of directors that signed off on the compliance plan.   
The hospital compliance code is supposed to address legal requirements for hospital and how to comply with them.  But medical staff bylaws, rules and regulations do too—at least the legal requirements pertaining to medical staffs, which are numerous.  (EMTALA, sexual harassment, financial conflicts of interest, to toss off a few).  Creating a compliance code without consulting the medical staff bylaws, rules and regulations in place that bind a major part of the hospital workforce should be unthinkable.    So-think about your hospital’s—and compare the documents.  Get rid of the inconsistencies. Note particularly the effect of violations and adjust the hospital compliance code to clearly state that medical staff member discipline is carried out under the medical staff process.    


The National Practitioner Data Bank (“NPDB”) has been in operation since 1990, its quirky reporting mandates  exceptional even amongst myriad regulatory hassles imposed on physicians.  NPBD finalized changes to its Guidebook (  warranting changes in medical staff bylaws to prevent needless, irreparable damage to physicians.

Investigation The Health Care Quality Improvement Act requires reporting a physician’s surrender of medical staff membership or privileges while under investigation, to prevent forced resignation in lieu of a NPDB report as a plea bargain.   The new Guidebook expands the investigation timeline, stating “An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decision-making authority takes a final action or makes a decision to not further pursue the matter.” Thus, a section chief checking a physician’s file following a patient’s complaint could trigger reportability.

Notice This expanded definition of investigation becomes more dangerous given that the Guidebook repeatedly states that the physician need not have any notice, indeed, need not even be aware, of an investigation. Further, the physician’s resignation is reportable even if it is just coincidental, and wholly unrelated, to the reasons for the secret investigation.   

Surrender Surrender of membership or privileges is interpreted to include opting not to reapply, or even exercising the right to a leave of absence.  Surrender and investigation do not have to be related.  Thus, deciding to forego a minor privilege on the biannual reapplication would cause a report, if an “investigation,” although unrelated to that privilege, is underway. A 6-week maternity leave could result in a NPDB report if, unbeknownst to the pregnant physician, any inquiry into her practice has begun.

Investigation Although the Data Bank ultimately determines when an investigation began, delineating in bylaws what is and is not an investigation should set practical parameters.

Notice Bylaws should stipulate that physicians receive written notice of any investigation.

Surrender Physicians should be authorized to receive a written statement as to whether there is an ongoing investigation prior to resigning any privileges, reapplying, or taking any leave of absence longer than 30 days.

The Guidebook addresses other NPDB reporting and querying requirements for malpractice payments and licensure and medical society actions.   For further information, contact Libby Snelson at

Employed or Unemployed, the Medical Staff Works

In most medical staffs, hospital employment of physicians is on the rise. Of course, states such as Texas and California, where hospital employment of physicians is illegal, are the exceptions (foundations, anyone?) This development can naturally cause division within the medical staff organization. Tensions can be unnaturally created or increased when hospital purse strings are or are perceived to be puppet strings.

To counter suspicion and even the playing field, medical staff bylaws and other governance documents should address hospital employment head-on in a way that protects employed members from non-professionals exerting control over the practice of medicine and preserves professionalism for both independent and dependent physicians.

Get this in writing:

  • · Credentialing and other professional standards must apply equally to employed and unemployed applicants and members
  • · Conflict of interests including hospital financial relationships shall be disclosed for elections and committee appointments
  • · Voting, eligibility for office, committee participation and other citizenship rights are available to all
  • · Medical staff members cannot be fired from their hospital employment or contracts merely because they fulfill Medical Staff assignments in good faith consistent with the bylaws.

© 2011 Elizabeth A. Snelson, Esq.

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MS 01.01.01 ADOPTED: Tune-up or Overhaul for Bylaws?

The Joint Commission adopted a new standard on medical staff self-governance and bylaws on March 12, 2010. Years in development, MS 01.01.01 (formerly numbered MS 1.20) will go into effect March 31, 2011. Medical staff bylaws amendments will be required, no matter how current your bylaws are, but to what degree? Here’s an estimate:


If the bylaws were broken apart into a hearing plan or an organization manual or a credentialing policy, or any combination thereof, extensive revision will likely be needed. The new standard lists 24 provisions and processes (Elements of Performance 12-36) that must be included in the medical staff bylaws, ranging from leadership selection and privileging to corrective action and hearings.


In some medical staffs, bylaws have not kept up with Medicare’s Conditions of Participation requirements that history and physicals be addressed, not in rules and regulations, but in medical staff bylaws. MS 01.01.01 as revised meets the Conditions, and so should well-maintained bylaws.


Most medical staffs will find that the bylaws will need a tune-up to comply with the new standard’s unique requirements. For example, medical staff bylaws now must include processes to manage conflicts between the medical staff and its medical executive committee, and provide for the medical staff and medical executive committee to communicate proposed rules, regulations and policies to each other. Few -if any- medical staffs have such processes already running.


I have completed revisions for several client medical staffs, and tuned-up model medical staff bylaws published by state medical societies to comply with MS 01.01.01. It can get a little technical, and there are opportunities for the medical staff to be steered wrong and delegate away its authority over its own governing documents. Do not put off taking your bylaws in for service--the standard goes into effect March 31, 2011.

© 2010 Elizabeth A. Snelson, Esq.
 Legal Counsel for the Medical Staff PLLC

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The Medical Staff Has A Lawyer? No Fair!

Interesting accusation-that the medical staff is not being collaborative when it retains a lawyer to work on its medical staff bylaws. It is especially interesting to hear an accusation that the medical staff is “adversarial” because it has hired legal counsel, when that accusation comes from the hospital’s lawyer--or, three of the hospital’s lawyers on a conference call, as happened to me recently. And no, the medical staff does not have three lawyers. Somehow, the hospital having lawyers is NOT adversarial. The medical staff having a lawyer=adversarial. The scenario would be funny in the abstract, but in reality, the medical staff does not have time for jokes.

Most hospitals are aware of, if not accustomed to, the medical staff’s right to and need for independent counsel. After all, the American Medical Association has long-standing policy on the issue, to wit:

“The AMA strongly recommends that hospital medical staffs retain their own attorneys so that the medical staff will have its own legal advocates for guidance.” AMA Policy Compendium §235.992

Less sophisticated hospital administration see medical staff counsel as nothing short of a threat, even as they themselves are backed by teams of inhouse and outhouse counsel. Threats are for amateurs. Typically, having counsel for both medical staff and hospital means that issues get focused, positions are aired, and lawyers negotiate, or help bylaws committees negotiate, to a mutually acceptable end.

Insanely expensive? Well, paying three or more hospital lawyers will add up….

More expensive than getting taking months, even years to get nothing done? Not at all.

Medical staff bylaws that work for the medical staff and the hospital? Priceless.

© 2010 Elizabeth A. Snelson, Esq.

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Executive Session Freakout

Why are administrators freaking out over medical staffs meeting in executive session?

Executive session is a common parliamentary procedure in which non-members of the committee or department or medical staff are asked to leave the meeting so that members can discuss and vote on an issue in private. Executive session allows frank discussion, which might be chilled by the presence of administrators. Calling an executive session can allow business to progress by avoiding tabling an issue to allow members can discuss it among themselves. It’s a great tool for well-informed, expedited decision-making.

So why do some hospital administrators refuse to agree to executive session provisions in medical staff bylaws? The argument that to be collaborative, the hospital administrative “team” must be present at every minute of all medical staff, department and committee meetings does not ring true when countless administrative meetings convene without a medical staff representative in sight. Medical staff members don’t need to be at every nursing or management meeting, why must medical staff meetings always include administrative personnel? Refusal to allow the medical executive committee or other medical staff committees to meet with out being supervised/watched/monitored by administration seems a sign that a hospital is in serious trouble—or at least gives rise to suspicions that the hospital is in trouble and is up to something. Clearly, it establishes that the hospital administration does not trust the medical staff.

Note that “The AMA (1) supports the right of any hospital medical staff committee to meet in executive session, with only voting members of the medical staff present, in order to permit open and free discussion of issues such as peer review and to maintain confidentiality; and (2) encourages individual medical staffs to incorporate provisions in their bylaws to affirm this right.” AMA Policy Compendium H-235.987. AMA is not famous for harboring radicals or generating maverick policies. Doctors may need to discuss clinical issues-or problems with hospital personnel-among themselves to get to the root of a problem without being under an administrative microscope.

To avoid this sort of medical staff surveillance:

* add executive session language to the bylaws, such as:

At the call of its chairman, any medical staff committee or department may meet in executive session, with attendance restricted to medical staff members and any advisors or other assistant as the chairman may specifically request to attend.

* if administrators refuse to leave the room, table the agenda item until the next meeting, and hold an interim members-only conference call to discuss and determine the outcome to be formally taken at the next meeting. If administration does not want to slow business down, it will start honoring executive session.

© 2009 Elizabeth A. Snelson, Esq.
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"Peer" Review Policy Isn't

Is it too much to ask that peer review involve peers? So-called “Peer” Review Policies are being ginned out by hospitals, ostensibly to meet recent Joint Commission standards, but under which peers (those actually treating patients based on their post-college degrees and training) have nothing to do with the review except to apply a rubber stamp at the end. Don’t let accreditation be an excuse to take the peer out of peer review.

A typical cookie-cutter “peer” review policy has the hospital’s quality improvement staff feeding whatever information it feels warrants attention (or which the hospital needs to knock off an unprofitable service line or an outspoken physician) to the quality improvement committee, which, even if it is delineated in the medical staff bylaws, is comprised by no small number of administrative personnel. Surprise! The unprofitable or unglamorous service does not pass the package’s muster. The independent practitioners of a lucrative service are replaced by hired hands. The basis for such convenient decisions? Pre-packaged data sets purchased from the financial officer’s favorite pro-hospital consulting firm, or marketing survey/patient satisfaction “data” being used as if it were, well, data.

Reality check, please! Unfiltered patient satisfaction survey outcomes used as specific measures of individual physicians, where the sick patient being surveyed may not remember whether that scrub-clad person is a neurosurgeon or a transport tech, or may be focusing more on the quality of the applesauce than on the sophistication of the diagnosis, cannot safely determine who should provide care. Those pre-printed “customized” quality measures that no one on the medical staff has ever seen, much less promulgated, are not going to improve quality on the ground or even be worth the exorbitant consultant’s fee, if there is no acceptance by the medical staff because the measures are unrelated to real clinical issues. Phony peer review isn’t worth the trouble, much less the price----assuming quality care really is the goal.

Medical staff bylaws should establish that peer review actually means review of peers by peers, done right, and for the right reasons. Done right means that clinical criteria are determined by clinicians on the medical staff, and the data sets are determined by medical staff departments, consistent with Joint Commission standard MS 4.40. Done right also means that state law requirements are followed to the letter and state-specific qualified protections are earned, which national consultants’ policy kits frequently overlook. Done for the right reasons means that instead of scalp-hunting, peer review results in improved quality, either by educating or assisting someone missing the standard the medical staff sets, or by correcting problems in the systems that fail to result in good care. Well-drafted medical staff bylaws prevent the use of peer review as punishment, and provide for the transparency needed to avert abuses, thus creating a medical staff in which members are comfortable bringing forward and solving real problems. No “peer” review policy needed.

© 2009 Elizabeth A. Snelson, Esq.
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Overkill Codes of Conduct

The Joint Commission ("TJC") recently broadcast as a "Sentinel Event Alert" a discussion of its standard LD 3.10, (effective 2009) which calls for a process to manage disruptive behavior. TJC followed up the next day with a broadcast email selling its book, seminar and audio conference on how to meet the standard it created. Other hospital consultants piggybacked on TJC's marketing, telling horror stories about "physician bullies" and selling "no tolerance" policies.

I have no tolerance for no tolerance. Overkill conduct codes subject medical staff members to discipline for "conduct disruptive to hospital operations", such as opposing the hospital's expansion plans at a city planning meeting, or pointing out problems with patient care. Among countless ridiculous but scary provisions in hospital codes of conduct, my favorite may be the one defining disruptive behavior as "adding to the workload of the staff"—which would include admitting a patient.

Medical staffs should be alerted to overkill conduct codes. In addition to imposing literally absurd requirements, such codes can be used to prevent physicians from competing with the hospital in any way, including being married to a cafe owner, which would fall under the code's clause blocking the medical staff member or immediate family from having an interest in an entity competing with hospital operations (its cafeteria.) Having an interest in a surgery center or imaging suite may not seem to be a "behavior" issue but might be blocked by the hospital's newly-laminated Behavior that Undermines the Mission list. Hospitals should be dinged for masking such anti-competitive schemes as necessary for "compliance."

Unprofessional conduct needs to be managed, but doing it badly creates costly errors. More than a new TJC standard is at stake. Poorly drafted codes of conduct disqualify actions for state and federal peer review protections, needlessly sacrificing legal immunity and confidentiality protections. Failing to follow existing procedures has been held to constitute malice, disqualifying the hospital and medical staff from Health Care Quality Improvement Act protection. (see In re: Peer Review Action Using codes of conduct as a guise for economic credentialing has been successfully challenged in Baptist Health v. Murphy (189 S.W.3d 438 (Ark. S.Ct. 2005). Forcing a new range of discipline on the medical staff outside the medical staff bylaws jeopardizes medical staff self-governance.

Really want to reduce unprofessional conduct? Adopt sensible, transparent requirements in medical staff bylaws, with emphasis on assisting professionals with emotional, physical or mental problems, encouraging constructive criticism and improving substandard systems.

© 2009 Elizabeth A. Snelson, Esq.
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