Avoid peer review train wreck: Build compliance into your credentialing

New Medicare/Medicaid participation regs can derail your program

If you are not considering compliance requirements in your credentialing program, it’s probably on track for derailment. New federal compliance guidelines for participating in the Medicare and Medicaid programs must now be considered before you extend hospital privileges. Furthermore, any physicians already on your staff who do not meet the new criteria may have to be kicked off or you risk losing your Medicare/ Medicaid business.

Hospital Peer Review asked experts Fay Rozovsky, JD, MPH, and Mark Kadzielski, JD, to address the dilemma some hospitals may face due to the new guidelines and to propose steps you need to take to avoid compliance-driven credentialing pitfalls. Rozovsky is president of the Rozovsky Group, a consulting firm in Richmond, VA, as well as a member of HPR’s editorial advisory board. Kadzielski is head of the West Coast Health Law practice and a partner in the Los Angeles office of Epstein Becker & Green.

Credentialing liability exposure, they say, can stem from acting too precipitously on compliance. "Compliance and quality don’t coalesce very well," says Rozovsky. "In fact, they conflict."

Medicare compliance is based on law and accreditation standards. It has a punitive model — the federal sentencing guidelines. In contrast, hospitals have been working under a peer review model driven by quality issues since the 1986 Health Care Quality Improvement Act came along, which has to do with providing excellent care, not punishing noncompliance. The Act gave hospitals certain protections as long as they provided due process and took appropriate corrective action. Most state laws were changed to accommodate quality in hospitals, but in the ensuing 13 years much has changed.

Along came compliance, an initiative that is diametrically opposed to what the Health Care Quality Improvement Act told hospitals to do. Compliance is driven by a different agenda and doesn’t have protections, Rozovsky says.

While the quality act looked at problems as being systemic and recommended not pointing fingers at individual practitioners, the new compliance initiative sees people as potential problems. It states, like the federal sentencing guidelines, that hospitals should disassociate themselves from anyone sanctioned for fraud and abuse. Your organization’s new corporate compliance plan (CCP) probably is based on that premise — that you’ll have no one on staff who’s been tainted by fraud and abuse issues — and that’s the rub. Some compliance-credentialing issues are starting to come to the surface, and our experts suggest you do some homework fast to rethink contracts, bylaws, and the rules and regulations of your medical staffs.

But he’s a good doctor . . . ’

Consider this scenario: You have a very productive, highly qualified physician, but you find out he has been sanctioned by one of the federal funding programs. His name appears on the Office of the Inspector General’s (OIG) List of Excluded Individuals/Entities. How do you remove him from your staff? Your bylaws were not written to accommodate such actions. Your contracts do not take that scenario into account. The doctor may have a legitimate complaint: "How dare you do this to me? Show me in my contract or in the medical staff bylaws where it says you can take such action." And he or she may have a good point.

"Compliance and credentialing policies often don’t match up," says Rozovsky.

The OIG model compliance guidance for hospitals and the federal sentencing guidelines encourage an organization to disassociate itself from any contractor or employee who has been sanctioned by a federal program such as Medicare or Medicaid, has been debarred, or has otherwise been found culpable of misconduct under law involving the health care system.

What if the sanctioned doctor is a salaried employee or a contractor with credentials that accord him privileges under your bylaws, and your bylaws don’t provide for disassociating him for other than quality purposes?

It can get even more complex when that physician whom you’ve been credentialing and granting privileges is a shareholder in your physician-hospital organization. Or he or she may have an adjunct affiliation or be a faculty member of your medical school. You may have various contracts with the physician. "How do you get yourself out from under that?" asks Rozovsky.

Suppose the physician is the focus of a federal review, and, according to the model compliance guidance, has to be removed because he or she could jeopardize the integrity of your compliance program. The physician could be the head of a medical foundation or the chair of a department, and now the physician is the focus of a government review. "He has his hand on the switch to such a degree that, pending the outcome of the investigation, you don’t want his hand so close to the switch," she says. Do your bylaws allow suspension for that purpose?

Zero tolerance? Things could get ugly

Kadzielski agrees there could be a problem and says you could have a serious dilemma in store if your CCP guarantees that your facility is "as pure as driven snow. How can you tout zero tolerance for fraud and abuse on the one hand while allowing, within your midst, even one practitioner who has had a felony conviction for fraud, debarment for fraud, a civil judgment for fraud, or a licensure action, either pending or complete, related to fraud and abuse?" Eventually, he says, the following dialogue could take place:

Compliance staff to medical staff: "Get rid of the following doctors. Throw them off the staff now. We won’t tolerate them on our staff. They’re dirty."

Medical staff to compliance staff: "But they’re excellent clinicians. They have nothing to do with fraud in our system. Whatever happened, happened in a civil judgment, or in another state, or it was related to a billing misunderstanding. If we’re going to get rid of any doctors, we have to give them fair process."

Compliance staff to medical staff: "If we had a contractor who was selling us devices, and we found a fraud report on him in the database, we’d terminate the contract. In the same way, we have to terminate those doctors."

Rozovsky points out that the situation could get ugly. In some instances where a doctor is the subject of scrutiny, he or she could become a qui tam relator, a whistle-blower. The physician may see that course of action as one way to redirect attention back onto the hospital. The hospital takes the hit instead of the physician, or at least it shares the physician’s position. Another piece in this conundrum: If a doctor submits a bill to one of the federal health programs and the doctor’s level of care is deemed substandard, that’s considered a false claim under the False Claims Act. Your hospital now must look over its shoulder for instances like that, she says.

See the other articles in this and in the July and August issues of Hospital Peer Review for advice on how to proceed in these newly shark-infested waters.