1. Sponsored by the Mass Collaborative, MHA, MMS, and MAMSS
Provider Credentialing Symposium – Meeting the Challenges, Improving the Process
Sponsored by the Mass Collaborative, MHA, MMS, and MAMSS
April 27, 2016

2. Alan Einhorn, Foley & Lardner, LLP
Effective Credentialing;: Why It’s Needed, How to Do It, and What’s Next?
Alan Einhorn, Foley & Lardner, LLP

3. Credentialing: Why and How
The common sense answer to “why”:
To protect our institutions and ourselves from harm resulting from inadequate education, inexperience, poor performance, illness and/or unacceptable conduct

4. Why else? The following: Lessons from the courts Medicare COPs
State Licensure Laws
Other State Laws
Accreditation Standards

5. Conditions of Participation
Medical Staff
Must examine credentials of candidates for medical staff appointments and make recommendations to the governing body
Governing Body
Must appoint members of the medical staff after considering the recommendations of existing staff members
Must assure that the medical staff is accountable to the governing body for the quality of care provided to patients
Must ensure that the criteria for selection are…competence, training, experience, and judgment…

6. State Licensure Laws Hospital Licensure
All MA hospitals must satisfy the Medicare COPS (may do so via Joint Commission Accreditation)
Physician Licensure/PCA Regulations
No hospital may appoint, hire, associate with for the purpose of providing patient care, or grant or renew the privileges of a licensee unless it performs detailed, enumerated credentialing functions

7. Other State Laws Medical Peer Review
Derived from State statute and PCA Regs
Impacts the structuring of credentialing processes, committees
Designed to promote and protect robust discussion and deliberation regarding credentialing and peer review decisions
Protects the proceedings, records and reports of “medical peer review committees” against disclosure in discovery, in court, and in most administrative tribunals
Does not protect all credentialing information collected for credentialing purposes

8. Accreditation Standards
The Joint Commission (“TJC”) is the primary accreditation authority for acute hospitals, though it is not the only one
TJC accreditation can mean “deemed” compliance with Medicare and Medicaid COPs
TJC accreditation can also mean satisfaction of conditions of participation for many insurers and health plans
TJC accreditation has arguably come to reflect the “standard of care” for organizational and operational quality for hospitals
Because of its primacy, TJC is perhaps the single greatest influence on the structure and content of medical staff bylaws, including their credentialing processes.

9. Accreditation Standards (cont’d)
TJC’s accreditation manual states that the medical staff is responsible for delineating the scope of privileges granted practitioners, and for the ongoing evaluation of competency of privileged practitioners
TJC requires that the following (among other things) must be included in medical staff bylaws
Qualifications for appointment to the Medical Staff (EP 13)
Process for credentialing/re-credentialing licensed independent practitioners (may include process for credentialing other practitioners) (EP 26)
Process for privileging and re-privileging licensed independent practitioners (may include process for privileging other practitioners) (EP 14)
Process for appointment/reappointment to Medical Staff (EP 27)

10. Accreditation Standards (cont’d)
TJC
Requires hospitals to collect information regarding each practitioner’s current license status, training, experience, competence, and ability to perform the requested privilege
Provides that privilege recommendations to the governing body be based on the assessment of this data
Emphasizes that credentialing includes collection, verification, and assessment; and it contemplates the use of credentials verification organizations (“CVOs”) to assist in the collection and verification functions.

11. Accreditation Standards (cont’d)
TJC states that, before recommending privileges, the medical staff evaluates:
Challenges to licensure or registration
Voluntary and involuntary relinquishment of license or registration
Voluntary and involuntary termination of medical staff membership
Voluntary and involuntary limitation, reduction or loss of clinical privileges
Evidence of unusual pattern or an excessive number of professional liability actions resulting in adverse final judgment
Documentation of health status
Relevant applicant-specific data (when available)
Morbidity and mortality data (when available)

12. Accreditation Standards (cont’d)
TJC also requires queries to the NPDB and the review of information provided by peers
Peer recommendations are considered particularly useful in instances (including on reappointment) when there is insufficient peer review or performance information to make a determination regarding the granting or denial of a requested privilege
Peer recommendations should come from individuals in the same professional discipline as the applicant, from someone with personal knowledge of performance, behavior, etc., and from someone whose reference can be trusted

13. Accreditation Standards (cont’d)
TJC, and the MA BoRM, make clear that credentialing is not a one-time event.
Appointments/re-credentialing at least very 2 years
Focused Professional Practice Evaluation (FPPE); 2 types:
When practitioner has credentials to suggest competence, but period of evaluation is needed to confirm
If questions arise regarding a practitioner’s performance
Ongoing Professional Practice Evaluation (OPPE)
An ongoing evaluation of each practitioner’s professional performance

14. Ongoing Credentialing Processes
FPPEs are implemented for all initially requested privileges
Initial appointment
Reappointment
Requests for additional/new privileges
FPPE is time-limited
If utilized to assess specific concerns, the specific performance concern is evaluated
Relevant information is integrated into performance improvement activities

15. Ongoing Credentials Processes
OPPE evaluation information is to be factored into decisions to maintain or revise existing privileges
OPPE evaluation information is also to be integrated into performance improvement
NOTE: FPPE and OPPE are distinct from the “corrective action” process (“improvement” v. “discipline”), but can trigger corrective action

16. Temporary Privileges Available in 2 circumstances :
For Staff applicants, for up to 120 days in any 1 year period, MA requires complete Staff application on file, and evidence of valid MA license, malpractice insurance, DEA certificate (if prescribing), and references
TJC requires verification of relevant training and experience and current competence, NPDB query, no limitation/termination of licensure or staff status
For non-Staff applicants, for up to 30 days in any 1 year period, MA requires evidence of valid MA license, malpractice insurance, DEA certificate (if prescribing), and references
TJC requires verification of current competence

17. Massachusetts Considerations
TJC and MA principles relating to credentialing are consistent in most respects
Still, the PCA regs require MA hospitals to take certain specific actions not explicitly required (though perhaps implied) by TJC, including:
Obtain a copy of the applicant’s most recent application for licensure, together with attachments
Obtain list and description of all malpractice claims and suits for past 10 years

18. Massachusetts Considerations (cont’d)
Obtain authorization from the applicant’s liability carrier(s) to release to the hospital detailed information about claims and actions
Obtain from the applicant the name of any hcf where the applicant had employment or privileges, and the reason for any discontinuance of either
Obtain authorization from the applicant to release information from other hcf’s at which he/she had employment or privileges relevant to the applicant’s competence to practice
Obtain authorization from the applicant for the hospital and the hcf’s at which he/she had employment or privileges to exchange information about pending and final disciplinary actions
Make reasonable inquiry of other hcf’s about the applicant before allowing the applicant to practice

19. “Process” Considerations
TJC and MA (BoRM) spell out required elements (and certain requirements) of the credentialing “process”
Non-compliance has implications for federal program participation, licensure and accreditation
There can, however, be flexibility in the “details” of the process.
For example…

20. Credentialing Considerations in the Real World
Application Process
Pre-screening? (e.g., license, peer recommendations, Medicare/Medicaid eligibility, insurance coverage, board certification/eligibility, “open” specialty)
Processing-inside vs. outside (CVO) credentials verification
Sequence and timing-guidelines are not deadlines

21. Credentialing Considerations in the Real World
Application Process
Generally: MS Office to Department, to Credentials, to MEC, to Governing Body
Streamline?
Interviews-if/when/how many?
Documentation-how much/when? pros/cons
Hearing/appeals triggers/timing
Important Tools
Acknowledgement, Authorization and Release
of having read and agreed to abide by the Bylaws
to the exchange of information
to release from liability
Explicit statement of burden of proof
complete, accurate, adequate information
sufficient information to resolve all doubts
Agreement to exhaust remedies

22. What’s New and What’s Coming
As Hospital “networks” develop and expand, and health system reform marches on, COPS, TJC, and state law requirements that are “hospital” focused WILL HAVE TO adapt…The process has started, but slowly…

23. What’s New and What’s Coming (cont’d)
Credentialing of Distant Site Telemedicine specialists is recognized by COPS, TJC, but
The COPS and TJC Standards contain ambiguities re the Medical Staff’s role
Some states have not explicitly endorsed privileging by proxy

24. What’s New and What’s Coming (cont’d)
Centralized Credentialing
Can multi-hospital networks streamline credentialing for practitioners who want privileges at multiple, separate hospitals within their networks?
Will doing so jeopardize compliance with COPS, TJC and state standards, and with peer review confidentiality laws—all of which are often focused on a “single hospital” process?
Can CVOs, “agency” concepts, and the “telemedicine” example be utilized here?

25. What’s New and What’s Coming (cont’d)
The “unified” medical staff
COPS and TJC both authorize “hospital systems” comprised of multiple, separately certified hospitals to elect to have a single, unified and integrated medical staff for some/all of their member hospitals, IF:
in accordance with state law
each of the hospitals’ medical staffs, by majority vote, approves the unified staff concept
the unified staff has bylaws that describe its processes for, e.g., credentialing and due process, AND include a process whereby the staff members at each hospital may vote to “opt out”
the unified staff is established in a manner that takes into account each hospital’s unique circumstances

26. What’s New and What’s Coming (cont’d)
”Unified” staff (cont’d)
Issues
There is no current definition of a “multi-hospital” system, as yet—so its not clear who can have a unified staff right now
One view—all hospitals must share a governing body that is “legally responsible” for them all (i.e., single entity with multiple, separately certified hospital “divisions”)
Second view—parent/subsidiary model (i.e., one entity is the sole “member” or shareholder of multiple hospitals, each of which is a separate corporation/entity) can be a multi-hospital system
Peer Review Confidentiality/state law considerations are implicated by a “unified Staff” concept
There are implications for Physicians as well

27. What’s New and What’s Coming (cont’d)
It seems likely that, to help streamline processes, enhance efficiency, and reduce redundancy and cost for credentialing and other essential hospital activities, the COPS, TJC and State law standards WILL change their focus from “hospitals” to “systems”—or at least offer the option of a “system” focus
When they do, the structure of the credentialing process will likely undergo significant change (likely primarily in the form of consolidation)
But the reasons for credentialing will not change; nor will the basic requirements for credentials review

28. Thank you
Alan H. Einhorn Foley & Lardner LLP 111 Huntington Avenue | Suite 2500 Boston, MA P