Webinar gives tips on navigating physician peer review process

Hospitals and compliance officers should know the reporting requirements of the Health Care Quality Improvement Act (HCQIA) (42 U.S.C §11101 et seq.) and be “very strict” in complying with the four standards to obtain immunity from damages. In a Health Care Compliance Association webinar entitled, Physician Peer Review: 10 Steps to Navigating the Process, Theresamarie Mantese and Fatima M. Bolyea, health care attorneys at Mantese Honigman, PC, gave practical tips on dealing with the process of physician peer review.

Federal and state reporting requirements

HCQIA (42 U.S.C. §11133) requires health care entities to report the following “reportable events” to the applicable state board of medical examiners: (1) a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days; (2) the surrender of clinical privileges while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or in return for not conducting such an investigation or proceeding; or (3) in the case of a professional society, a professional review action by the professional society that adversely affects the membership of a physician in the society.

Mantese noted that it is important to know both federal and state requirements, since state requirements can be more stringent. For example, in Michigan reporting requirements are triggered when a disciplinary action affects a health professional’s privileges for more than 15 days.

Compliance officers must also clearly define “investigation” so that they know when reporting requirements are triggered. While the NPDB Guidebook defines “investigation” broadly, a general review of physicians for overall performance in relation to each other is not an investigation.

Immunity from damages

HCQIA (42 U.S.C. §11112(a)) provides that hospitals and other participants are immune from damages if the professional review action was taken: (1) in the reasonable belief that the action was in the furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures; and (4) in the reasonable belief that the action was warranted by the facts. Compliance officers should, said Mantese, be “very strict” is attempting to comply with these standards. She said the third prong is where the most litigation happens and one of physicians’ strongest arguments in challenging a professional review action.

HCQIA immunity applies to money damages only, not to equitable relief such as reinstatement or the striking of a report. Mantese said, however, that if immunity applies, a request for equitable relief usually fails, too.

Notices

Under 42 U.S.C. §11112(b), the hospital is required to give the physician notice of a proposed action. If the notice is deficient, the physician should challenge it. Mantese encouraged compliance officers to have a template of a notice to ensure that the fundamental features are included. She emphasized that each notice should be compliant, even if the same information is repeated across notices; several notices cannot be taken together to create completeness.

Hospital policies

The presenters emphasized the importance of adequate hospital policies and bylaws, including the appeal rights of physicians after a peer review hearing. For example, the bylaws are critical in determining what records the physician can obtain from the hospital. A fair hearing plan is also a good idea in case the physician claims that the hospital arbitrarily denied a request for documents. According to Mantese, hospitals should consider providing the physician with as much information as possible—the more information the physician has about an issue, the less likely he or she is to bring litigation, and the case is more likely to be dismissed if litigation does ensue.

Peer review hearing

If the physician requests a hearing on a timely basis, then a hearing must be held (as determined by the health care entity) before: (1) an arbitrator mutually acceptable to the physician and health care entity; (2) a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician; or (3) a panel of individuals who are appointed by the entity are not in direct competition with the physician involved. A panel usually consists of other physicians on staff at the hospital.

During the hearing, the physician has the following rights: (1) representation by an attorney; (2) a record of the proceedings; (3) the ability to call, examine, and cross-examine witnesses; (4) to present relevant evidence regardless of its admissibility in a court of law; and (5) the ability to submit a written statement at the close of the hearing.

A question that usually emerges is whether the panel members are in direct economic competition with the physician. If the physician raises this issue and the hospital has a number of people to serve on the panel, it should simply replace that person.

The presenters strongly recommended having a court reporter at the hearing. Because a common point of contention is which party will cover the costs, they recommended splitting the cost between the provider and the physician. Mantese also emphasized that hearing “exhibits are very, very important.” One person should maintain control of the exhibits during the hearing, and no one should leave until all are marked and accounted for.

Post-hearing

After the hearing the parties should submit a brief written statement with proposed findings of fact. Pursuant to HCQIA, upon completion of the hearing, the physician involved has the right to receive (1) the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations; and (2) a written decision of the health care entity, including a statement of the basis for the decision.