How to keep the Joint Commission happy and plaintiff's attorneys frustrated.

Many medical staffs tend to back away from the scrutiny required to properly determine that a medical staff applicant is competent to perform the specific privileges requested or to carry out the duties required of a member of the medical staff because of their fear of litigation for denying the individual the opportunity to make a living when membership or privileges are denied. If the credentialing process is structured properly, an applicant will almost always be denied on the basis of not having completed the application, which would of course make pursuit of such a claim all but pointless. Once this fear is neutralized, the medical staff can more freely conduct its credentialing process.

Before the staff concerns itself with structuring its credentialing process so that denial will be on the basis of an incomplete application, it must first ascertain that it is collecting the information fundamental to making an informed decision regarding the applicant's qualifications. The JCAHO requirements for offering medical staff membership and granting clinical privileges should invariably be followed in order not only to comply with JCAHO standards but also to ensure the thoroughness of the process. The JCAHO requirements are:

* Demonstration of current licensure and registration.

* Documentation of adequate education and training.

* Demonstration of professional competence.

* Documentation of adequate health status.

* Information regarding challenges to license or registration, including voluntary or involuntary surrender of same.

* Information regarding voluntary or involuntary surrender, decrease, or limitation of clinical privileges.

* Information regarding voluntary surrender or loss of medical staff membership.

* Information regarding involvement in any professional liability action.

* Peer recommendations.

* Departmental recommendations.

* Querying the National Practitioner Data Bank.

* Results of departmental monitoring and evaluation activities in privileging at time of reappointment.

The professional competence of the individual, as well as the status of licensure, medical staff memberships, privileges, etc., will be substantiated by peer recommendations and by information obtained from other health care organizations. At the time of initial application, licensure and training must be validated by the primary source (the licensing board, medical school, etc.) This means documentation that someone at the facility was contacted and reported a valid current license, graduation on a particular date, etc.

At time of reappointment, a copy of a current license/registration is adequate for JCAHO purposes. Legally, however, it is a good idea to validate the status of the license from the primary source at the time of any recredentialing action.

It is not adequate to merely obtain a statement from the applicant that he or she is in good health. Health status needs to be confirmed by some other source. This may be in the form of documentation of a physical examination or of a report from one of the other information sources on the application. If from a report, it should state that no health problems that would interfere with the applicant's performance of medical staff duties or competency to perform the privileges requested are known to the informant. Never merely ask, "Do you have any physical or mental health problems?" or "Do you know if the applicant has any physical or mental health problems?" The Americans with Disabilities Act declares such questioning illegal. The questions must be posed in terms of any problems or disabilities that might interfere with the performance of the tasks or job for which the individual is applying. If a physical examination is required, it must be required of all applicants in order not to violate this act.

In order to comply with Joint Commission standards, the organization must document that its credentialing process includes all of these activities. If it collects these data, it will be obligated to make use of them in credentialing. If so, it will from time to time find itself in the position of denying requested privileges or membership to an individual on the basis of the information gathered or, alternatively, on the basis that the application is not complete. If the organization denies membership or privileges on the basis of nonconformance with its requirements, the requirements must be prescribed in the medical staff's bylaws/rules and regulations, or members of the medical staff will be potentially liable for acting as individuals, since their actions will not be empowered by their bylaws.

Although the requirements for membership and privileging are basically the same, different privileges require different practitioner capabilities. Because the provision of a particular service may require a great deal of different training and experience than another, some mechanism must be devised to determine that a particular individual is competent to provide a particular service. The process of granting clinical privileges is designed to do just that. Basic to the entire process is the requirement that the individual document competency to perform the procedures/services in which he or she is requesting to engage.

Structuring the Process

Although the Joint Commission requires that competency to perform the privileges granted be documented, it does not yet require that a statement of competency be documented for each privilege granted. This must be done, however, in order to protect oneself in court. It is also an integral part of structuring the process to deny membership or privileges on the basis of noncompletion of the application. The steps in constructing this process are as follows:

1. Amend the medical staff bylaws to state, "it shall be the responsibility of the applicant to furnish an application completed to the satisfaction of the credentials committee."

2. Amend the bylaws to state what a completed application must include. List every item of information on the application that the applicant is required to supply, as well as the supporting documents that are required. Items such as name, address, telephone number, etc. can be aggregated into identifying information; the point is not to omit any item of information that is required. Do not aggregate medical education; instead, spell out "medical school," "internship," etc. Include the questions to which the applicant must respond, such as "voluntary or involuntary surrender of licensure," as individual items.

3. Amend the bylaws to state, "it shall be the responsibility of the applicant to furnish the hospital all information required, including that deriving from any individual, organization, facility, or institution listed on the application."

4. Amend the application for appointment or reappointment to state, "I request the hospital to obtain the information required from each of the individuals, organizations, facilities, agencies, or institutions listed above and authorize the hospital's use of the information obtained in processing my application for membership and/or clinical privileges."

5. Amend the bylaws to state, "by signing the application for appointment or reappointment, the applicant shall request the hospital to obtain the information required from the individuals, organizations, facilities, agencies, or institutions listed on the application and shall authorize the hospital to utilize the information obtained in processing his or her application/reapplication for membership and or clinical privileges. (Each of the statements above would be repeated in the section for application and again in the section for reapplication and thus would not contain the phrases "application/reapplication")

6. Include in the section of the bylaws that describes the reappointment process a statement such as, "it shall be the responsibility of an applicant for reappointment to the courtesy medical staff to assist the hospital in obtaining the results of performance assessment or improvement activities regarding him or her as a provider from the hospital(s) of which he or she has been an active staff member." (Note that courtesy medical staff is used here to denote any category of the medical staff that does not require admitting or consulting activity in order to maintain staff status in the category).

The reason for including this provision is to provide the credentials committee with information regarding the applicant's previous performance. Consideration of this information in the reappointment/reprivileging process is not only a requirement of the Joint Commission, but also essential if the credentials committee is to make an informed decision. Because plaintiff's attorneys seem to know the JCAHO Accreditation Manual or Hospitals by heart, it also makes good sense legally. If the physician has had no activity at the credentialing facility since the last reappointment, the only such information available must come from other sources.

Making the above changes in the medical staff bylaws allows the credentials committee to use its discretion in determining whether an application is complete, depending on whether the information contained therein is satisfactory to it. Further, it not only forces the applicant to do the required work rather than the hospital's credentialing official, but also places the applicant in the position of being used as a lever to promote cooperation with other facilities that might otherwise be reluctant to furnish such sensitive information.

Once these changes have been made, the next step is to make certain that all the information listed is collected from every possible source. This mandates that the facility structure the information-gathering process rather than leave it to the applicant to contact the sources and tell them to furnish the hospital with the information he or she deems relevant. The credentialing hospital must be active in the process and inform sources as to the specific information requested. Letters should be sent to each information source requesting specific items of information, not just "would you please send us any information you have relative to the applicant's medical staff status" or "is there any derogatory information regarding this applicant?"

Each source should receive essentially the same letter of inquiry. Minor differences in the letters would, of necessity, occur. For example, the applicant's medical school would not be asked to comment on the applicant's competency to perform privileges requested, and a peer would not be asked to comment on the individual's track record regarding delinquent medical records or attendance at meetings. With these kinds of exceptions, however, the same letter should be sent to all sources. While the terms "he or she" and "him or her" are used in this discussion of confirmation letters, they should never be used in the letters themselves. The actual gender of the applicant will dictate usage. After introductory comments, the letter should include the following;

* Respondents should be asked how long and in what capacity they have known the applicant.

* Each of the questions the applicant is required to answer, such as voluntary or involuntary surrender of license, limitation or termination of clinical privileges, termination of medical staff membership while under investigation, etc., should be posed in every confirmation letter sent.

* Verification of the applicant's health status should be solicited by asking "to your knowledge does he or she have any physical, mental, or emotional health problem(s), including use of alcohol or drugs, that might interfere with his or her capacity to carry out duties as a member of the medical staff or impair his or her competence to perform any of the specific clinical privileges requested.

* The next portion of the letter should consist of a list of each of the privileges the applicant has requested, as well as the category of privileges requested if categories are used in the credentialing process. (Be certain to define the type of privileges included in the category, if used). Headings with spaces for appropriate check marks should be placed beside each privilege to allow the respondent to comment "competent" or "not competent" and to make comments (e.g., limitations, inadequate knowledge to assess). The listing of privileges is an integral part of the letter and not an attachment. Psychologically, including the privilege list as part of the letter, rather than attaching it, will make it seem central to the information gathering effort rather than a peripheral after-thought.

* Be sure to include, at the end of the letter, a statement calling attention to the fact that the applicant has requested the information. The statement might read, "You will note by the authorization enclosed that Dr. Doe has requested you to furnish the above information to us, and, of course, a speedy reply would be most appreciated by him." I think it a good idea to highlight the word "request" on the authorization to release information that is enclosed with the letter.

* Make certain that all outgoing correspondence for credentialing information-gathering purposes comes from and is signed by the chairman of the credentials committee (or, in the absence of a credentials committee, the medical staff body that performs the credentialing function). Specifically, there should be no appearance that the request for the information comes from hospital administration, because in most states the "hospital's work product" is discoverable in court, whereas portions of the credentials file dealing with the quality of care of providers is not. Including any of the hospital's work product in the credentials files risks the entire credentials file, including performance assessment or improvement information, being discoverable. I strongly suggest that the hospital provide stationery with the credentials committee letterhead in order to prevent any possible chance of letters being construed by plaintiffs' attorneys as being part of the hospital's work product.

Operation of the Process

Once the above structure is in place, the credentials committee can determine the point at which an application is deemed to be completed. For example, suppose that letters from all the affiliate hospitals, peers, licensing bodies, training programs, etc. have been returned with great recommendations in each, with the exception of one letter that contains one blank in which a privilege requested has not been checked in any fashion. The credentials committee may choose to assume, in view of all the other information, that this was merely an oversight and consider it complete, because the form itself has been completed. They could, of course, insist that it to be filled out. On the other hand, if any of the other letters contain information that raises some doubts in the minds of the committee, it is empowered to insist that the applicant clarify the information for them before the application can be considered complete. Assume, further, that a response indicates that the applicant's privileges had been limited or withdrawn while he or she was under investigation. The committee is able to insist that the applicant provide them with full details from the facility involved ore the application can be considered complete.

The key point is that the application is not complete, not merely that derogatory or questionable information was reported. The fact that the application has never been completed means that the applicant and his or her attorneys will have to really stretch to pursue a suit for denying membership and thus livelihood. Further, when an applicant must obtain data from a source that he or she knows will be furnishing derogatory information, he or she will almost certainly cease pursuit of the application and will allow it to die a natural death as the time limit for processing expires. As anyone knows who has ever been in the position of having to remove a member from the staff or to deny privileges, it is much easier to prevent marginal candidates from receiving membership or privileges than it is to remove them after the fact. This method not only offers that opportunity but also provides the medical staff that uses it with maximal integrity of its credentialing process.

O. Lee Trick, MD, is President, Quality Healthcare Consultants, Houston, Tex. He is a surveyor for the Joint Commission on Accreditation of Healthcare Organizations and a member of the American College of Forensic Examiners.