GW GARFUNKEL WILD P C ATTORNEYS AT LAW

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Medical Staff Credentialing and Peer Review – Common Mistakes November 2, 2018 Stacey L. Gulick, Esq. Partner Garfunkel Wild, P. C. Sgulick@garfunkelwild. com 516 -393 -2264 Great Neck, NY (516) 393 -2200 5070250 Hackensack, NJ (201) 883 -1030 Stamford, CT (203) 316 -0483 Albany, NY (518) 242 -7582

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW If peer review, privileging or credentialing decisions result in corrective actions that limit privileges, or professional misconduct is identified, reporting obligations may arise. 5070250 GW www. garfunkelwild. com

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW NATIONAL PRACTITIONER DATA BANK 5070250 GW www. garfunkelwild. com

Who Reports? Entities that are required to report to the NPDB include medical malpractice payers, hospitals and other health care entities, professional societies, health plans, peer review organizations, private accreditation organizations, federal government agencies, state law enforcement agencies, state Medicaid fraud control units, state agencies administering or supervising the administration of a state health care program, and state licensing and certification authorities (including state medical and dental boards). 5070250 GW www. garfunkelwild. com 4

Who Reports • Hospitals must report. • Other health care entities (e. g. , ASCs) must report if they have a formal peer review process. A formal peer review process is the conduct of professional review activities through formally adopted written procedures that provide for adequate notice and an opportunity for a hearing. 5070250 GW www. garfunkelwild. com 5

What Needs to be Reported? • Any professional review action that adversely affects the clinical privileges of a physician or dentist for a period of more than 30 days or the acceptance of the surrender of clinical privileges, or any restriction of such privileges by a physician or dentist, (1) while the physician or dentist is under investigation for possible incompetence or improper professional conduct, or (2) in return for not conducting such an investigation or proceeding. Note: Adverse clinical privileges actions that must be reported to the NPDB are professional review actions - that is, they are based on a physician's or dentist's professional competence or professional conduct that adversely affects, or could adversely affect, the health or welfare of a patient. Eligible health care entities must report clinical privileges actions taken against physicians and dentists when those actions meet the criteria to be reported. 5070250 GW www. garfunkelwild. com 6

Reporting FAQ A health plan terminated contracts with several psychologists in its network because the plan determined it already had too many psychologists in that geographic area. Reportable? No. While health plans are required to report actions that meet the definition of an "other adjudicated action or decision, " that definition specifically excludes business or administrative decisions by health plans that result in contract terminations unrelated to health care fraud, or abuse, or quality of care issues. The contract terminations taken by this health plan were based on the health plan's business decisions regarding its network and were not related to health care fraud, or abuse, or the quality of health care delivered by the practitioners involved. 5070250 GW www. garfunkelwild. com 7

Reporting FAQ A hospital automatically revoked a physician’s clinical privileges when the physician lost her license. Should this action be reported? No. Administrative Actions that do not involve a professional review action should not be reported to the NPDB. This revocation of clinical privileges is automatic because the practitioner no longer holds a license. Regardless of the reason for the state medical board's licensure action, the hospital's revocation of privileges was not the result of a professional review action 5070250 GW www. garfunkelwild. com 8

Reporting FAQ After receiving multiple “quality of care” complaints about a physician, a hospital initiated an investigation. During the investigation, the physician resigned her clinical privileges at the hospital. Since there was no professional review action taken, should a report be submitted to the NPDB? Yes. The investigation was triggered by an event involving professional competence and centered on the physician's performance outside the scope of a routine review. Since the physician resigned her clinical privileges while under investigation, a report must be submitted to the NPDB 5070250 GW www. garfunkelwild. com 9

NPDB Attestation At the time of registration renewal, eligible entities that are required to report are asked to attest that they have submitted all reportable adverse actions. 5070250 GW www. garfunkelwild. com 10

NPDB Immunity The immunity provisions in Title IV, Section 1921, and Section 1128 E protect individuals, entities, and their authorized agents from being held liable in civil actions for reports made to the NPDB unless they have actual knowledge of falsity of the information contained in the report. 5070250 GW www. garfunkelwild. com 11

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW State Reporting Obligations 5070250 GW www. garfunkelwild. com

Connecticut Licensed health care professionals and hospitals are required to report (referred to as filing a petition), within 30 days, when such health care professional or hospital has any information that appears to show that a licensed health care professional is, or may be, unable to practice his or her profession with reasonable skill or safety for any of the following reasons: (A) Physical illness or loss of motor skill, including, but not limited to, deterioration through the aging process; (B) emotional disorder or mental illness; (C) abuse or excessive use of drugs, including alcohol, narcotics or chemicals; (D) illegal, incompetent or negligent conduct in the practice of the profession; (E) possession, use, prescription for use or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes; (F) misrepresentation or concealment of a material fact in the licensure process; or (G) violation of any provision of the chapter of the general statutes under which the health care professional is licensed or any regulation established under such chapter. 5070250 GW www. garfunkelwild. com 13

Connecticut Note: The reporting mandate may be fulfilled by referring a health care practitioner to the HAVEN Program. 5070250 GW www. garfunkelwild. com 14

New Jersey The Health Care Professional Responsibility and Reporting Enhancement Act requires New Jersey health care entities to report a licensed health care professional who is employed by, under contract with, or has e clinical privileges granted by that health care entity to the New Jersey Division of Consumer Affairs IF the health care entity has taken action against the licensed health care professional for impairment, incompetence or professional misconduct which relates to patient safety. Such report must be made within seven (7) days. Reporting Form: https: //www. nj. gov/health/forms/cn-9. pdf 5070250 GW www. garfunkelwild. com 15

New Jersey This includes: • second opinion requirements, • non-routine concurrent or retrospective review of admissions or care, • non-routine supervision by one or more members of the staff, or • the completion of remedial education or training Note: When a report is made, the applicable health care professional must receive a copy of the report. 5070250 GW www. garfunkelwild. com 16

New Jersey Health care entities must also report if a health care practitioner: • voluntarily resigns from the staff or relinquishes any privilege if the health care entity is (which includes the expressed intention to) reviewing the health care professional's: (a) patient care or (b) conduct that demonstrates an impairment or incompetence or is unprofessional, relating adversely to patient care or safety. • while under, or subsequent to, a review of patient care or professional conduct is granted a leave of absence for reasons relating to a physical, mental, or emotional condition or drug or alcohol use which impairs the health care professional's ability to practice with reasonable skill and safety. (Note: no report is required for pregnancy-related leaves of absence or if the health care professional has sought assistance from an approved professional assistance and is following the treatment regimen) • is a party to a medical malpractice liability suit, to which the health care entity is also a party, and in which there is a settlement, judgment, or arbitration award. 5070250 GW www. garfunkelwild. com 17

New Jersey In addition, licensed health care professionals are required to file a report with the Health Care Professional Information Clearing House Coordinator if that health care professional is in possession of information which reasonably indicates that another licensed health care professional has demonstrated an impairment, gross incompetence or unprofessional conduct which would present an imminent danger to an individual patient or to the public health, safety or welfare of the patient. 5070250 GW www. garfunkelwild. com 18

New York Hospitals and other Article 28 facilities are required make a report within thirty (30) days of the occurrence of any of the following: • the suspension, restriction, termination or curtailment of the training, employment, association or professional privileges or the denial of the certification of completion of training of an licensed health care professional or of a medical resident for reasons related in any way to alleged mental or physical impairment, incompetence, malpractice or misconduct or impairment of patient safety or welfare; • the voluntary or involuntary resignation or withdrawal of association or of privileges with such facility to avoid the imposition of disciplinary measures; or • the receipt of information which indicates that any professional licensee or medical resident has been convicted of a crime; • the denial of staff privileges to a physician if the reasons stated for such denial are related to alleged mental or physical impairment, incompetence, malpractice, misconduct or impairment of patient safety or welfare. 5070250 GW www. garfunkelwild. com 19

New York Hospitals, other Article 28 facilities and licensed health care professionals are required to make a report within thirty days of obtaining knowledge of any information which reasonably appears to show that a physician is guilty of professional misconduct as defined in the New York Education law governing physicians. 5070250 GW www. garfunkelwild. com 20

Protection Against Liability • Connecticut: No health care professional, hospital or person making a report to the department or an assistance program shall, without a showing of malice, be liable for damage or injury to the health care professional. • New Jersey: A health care entity, or any employee thereof, which makes a report under these reporting obligations, in good faith and without malice, is not liable for civil damages in any cause of action arising out of the provision or reporting of the information. • New York: Any person or facility which makes a report in good faith and without malice shall have immunity from any liability, civil or criminal, for having made such a report. 5070250 GW www. garfunkelwild. com 21

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Special Considerations for Impaired Physicians 5070250 GW www. garfunkelwild. com

Connecticut – New Haven • http: //www. haven-ct. org/ • HAVEN is a confidential assistance program for health care professionals licensed by the State of Connecticut Department of Public Health who may be suffering from physical or mental illness, emotional disorder or chemical dependency • Reporting can be avoided if the health care professional participates with Haven 5070250 GW www. garfunkelwild. com 23

New Jersey - PAPNJ • The Professional Assistance Program of New Jersey (PAPNJ) (http: //www. papnj. org/) accepts reports and provides counseling/treatment services to impaired practitioners. • Practitioners who take a leave of absence in order to participate in a PAPNJ program may avoid being reported to the NJ Division of Consumer affairs provided no other instances of professional misconduct have occurred. 5070250 GW www. garfunkelwild. com 24

New York - CPH • The Physician Health Program for New York State The Committee (“CPH”) provides non-disciplinary, confidential assistance to physicians, residents, medical students, and physician’s assistants experiencing problems from stress and difficult adjustment, emotional, substance abuse and other psychiatric disorders, including psychiatric problems that may arise as a result of medical illness. • Reporting to CPH does not alleviate the requirement to report to the OPMC • CPH will advocate on behalf of physicians who participate in its program. 5070250 GW www. garfunkelwild. com 25

New York - CPH • CPH records have stricter confidentiality protection than medical records or peer review records (e. g. , CPH records are not discoverable in civil proceedings such as malpractice suits). • CPH provides no information to the National Practitioner Databank or any of the other state or federal data banks. • CPH and OPMC have distinctly different roles. CPH is a health program uniquely designed to help physicians recover from behavioral health disorders. OPMC has the mission of protecting public health. The law requires that CPH inform OPMC when a physician is considered an imminent danger to public health. Generally, a physician’s desire to avoid referral to OPMC assists in his/her recovery. 5070250 GW www. garfunkelwild. com 26

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Additional Reporting Obligations for Controlled Substances 5070250 GW www. garfunkelwild. com

DEA Federal regulations require that registrants notify the DEA Field Division Office in their area, in writing, of theft or significant loss of any controlled substance within one business day of discovery of such loss or theft. The registrant shall also complete and submit to the Field Division Office in their area, DEA Form 106, "Report of Theft or Loss of Controlled Substances" regarding theft or loss. https: //apps. deadiversion. usdoj. gov/webforms/dtl. Login. jsp 5070250 GW www. garfunkelwild. com 28

CONNECTICUT • Concerns related to drug diversion or inappropriate prescribing of controlled substances should be reported to both: • the Department of Public Health and • the Department of Consumer Protection, Drug Control Division. • The website for the Department of Consumer Protection is www. ct. gov/dcp 5070250 GW www. garfunkelwild. com 29

NEW JERSEY • CDS registrants are required to report theft or loss of controlled substances to Drug Control Unit. • Reporting form can be found at: https: //www. njconsumeraffairs. gov/dcu/Applications/Report-of-Theft-or. Loss-of-Controlled-Substances. pdf. 5070250 GW www. garfunkelwild. com 30

NEW YORK • Reports regarding lost controlled substances (e. g. , diverted controlled substances) must be made promptly to the New Department Health, Division of Controlled Substances • The report form can be found at: https: //www. health. ny. gov/forms/doh-2094. pdf 5070250 GW www. garfunkelwild. com 31

GW GARFUNKEL WILD, P. C. ATTORNEYS AT LAW Confidentiality 5070250 GW www. garfunkelwild. com

STATE LAW PRIVILEGE • New York has statutory privileges for credentialing and physician peer review information provided certain requirements are met. • New Jersey has no such privileges. • Connecticut has statutory privileges for peer review conducted by a Medical Review Committee. 5070250 GW www. garfunkelwild. com 33

QUESTIONS 5070250 GW www. garfunkelwild. com 34