Delegated Credentialing A Solution to the Insurer Credentialing Waiting Game?

Chapter EE Delegated Credentialing A Solution to the Insurer Credentialing Waiting Game? Charles J. Chulack, Esq. Horty, Springer & Mattern, P.C. Pittsburgh EE-1

EE-2

Table of Contents Chapter EE Delegated Credentialing A Solution to the Insurer Credentialing Waiting Game?... EE-1 Charles J. Chulack, Esq. I. Introduction... EE-5 II. Accreditation Standards... EE-5 A. Background and General Requirements... EE-5 B. Specific Accreditation Requirements for Delegated Credentialing...EE-7 1. Credentialing Policies...EE-7 2. Practitioners Rights... EE-8 3. Credentialing Committee... EE-9 4. Verification...EE-10 5. Additional Accreditation Requirements... EE-11 III. IV. Medicare, Medicaid and State Credentialing Requirements... EE-13 Credentialing Best Practices... EE-15 V. Negotiating with Health Insurers... EE-17 VI. VII. Sub-Delegation... EE-19 Querying and Reporting... EE-20 VIII. Conclusion... EE-22 EE-3

EE-4

I. Introduction Hospitals and physician group practices want their individual providers to be placed on health insurer panels, and eligible for reimbursement, as quickly as possible. However, health insurer credentialing is often time-consuming and inefficient, with some health insurers taking up to 180 days to credential a physician or other individual provider. Hospitals and physician group practices often have well-functioning credentialing and peer review policies and procedures in place. These policies and procedures provide an excellent foundation for performing delegated credentialing for health insurers. Some adjustments to those policies and procedures are typically necessary for a health insurer to agree to delegate credentialing and peer review activities to a provider. This is because health insurers are governed by different legal and regulatory requirements and accreditation standards. This paper will cover, in a delegated credentialing context, relevant accreditation standards; best practices for credentialing and peer review; Medicare, Medicaid and state mandates; contract provisions to include in delegated credentialing agreements; issues involving sub-delegation; and querying and reporting to entities such as the National Practitioner Data Bank ( NPDB ). II. Accreditation Standards A. Background and General Requirements The National Committee for Quality Assurance ( NCQA ) Health Plan Accreditation program is the most prevalent and widely-recognized health plan accreditation program in the country. Accordingly, the majority of this section will focus on the NCQA Health Plan Accreditation Requirements. Where significant differences exist between the NCQA Health Plan Accreditation Requirements and requirements for other accreditation entities, such as the Utilization Review Accreditation Commission ( URAC ), those differences will be noted. By way of background, the NCQA is a multi-faceted entity set up as a private, not-for-profit organization whose purpose is improving the quality of health care through a number of programs. About NCQA (Overview), NCQA, http://www.ncqa.org/about-ncqa (last visited Dec. 6, 2016). One of those programs is Health Plan Accreditation. Id. at EE-5

http://www.ncqa.org/programs/accreditation/health-plan-hp.aspx. The program is similar to the Joint Commission s Accreditation program for hospitals, but the NCQA s program applies to health plans. NCQA accreditation (and accreditation by other entities) for health plans is important for a number of reasons. First, accreditation demonstrates that the health plan was subject to a comprehensive evaluation which bases results on measurement of clinical performance and consumer experience. Id. Second, the NCQA standards and guidelines reflect the key requirements of federal law and regulations for the state health insurance marketplace plans. Id. Most states recognize NCQA accreditation as meeting their requirements for Medicaid and commercial plans and Medicare deems plans with NCQA accreditation as compliant with the regulations and rules relating to Medicare Advantage. Id. When it comes to delegated credentialing, most, if not all, health insurers will require that a delegate s processes and procedures are compliant with relevant NCQA Standards and Guidelines before they agree to delegate credentialing and recredentialing to the delegate. Therefore, it is essential to work relevant accreditation requirements into your policies and procedures and operationalize those requirements. Under the NCQA guidelines, [d]elegation occurs when an organization gives another entity the authority to perform an activity that the organization would otherwise perform to meet a requirement in the NCQA standards and guidelines. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Appendix 5 Guidelines for Delegation and Automatic Credit, 5-2 (2016). NCQA permits delegation of a number of activities but not all activities. NCQA allows health plans to delegate credentialing, recredentialing, case management, utilization management, disease management, and health promotion to providers such as physician group practices to reduce redundancy of effort and oversight. Id. On the other hand, NCQA prohibits the delegation of activities involving certain standards and elements, such as member experience, privacy and confidentiality, and marketing information. Id. Under the NCQA Accreditation Requirements, health plans cannot delegate their oversight of the provider performing the delegated credentialing. Id. However, if the delegate sub-delegates to another EE-6

entity, such as a credentials verification organization ( CVO ), to do primary source verification, then the health plan and the provider can decide who is going to perform the oversight of that sub-delegate. Id. The reason that health insurers will insist that delegates be NCQA-compliant (or compliant with a different accreditation entity that accredits that particular health plan) has to do with NCQA s evaluation of delegation. Like the Joint Commission, NCQA evaluates the health insurers that it accredits. When a health plan delegates activities, such as credentialing and recredentialing, to a health care provider, NCQA will want to know whether the health care provider is performing those delegated activities in compliance with NCQA Accreditation Requirements. NCQA will conduct this evaluation in two ways: (1) it will directly evaluate the health care provider s performance of those delegated functions; and (2) it will evaluate whether the health insurer is properly overseeing the health care provider s performance of those delegated functions. Id. at 5-2. This does not necessarily mean that the delegate is going to have NCQA knocking on its door to perform a site visit. When a health insurer delegates credentialing and recredentialing functions, or any other functions, to a health care provider, the health plan has to have access to the provider s materials and documentation involved in performing that delegated function. For example, for delegated credentialing, the health plan will require access to a delegate s credentialing and, if applicable, peer review policy. When NCQA evaluates the health insurer, it will be able to evaluate those materials and documentation that the health insurer has in its possession. According to NCQA, it treats the delegate s documentation as the health insurer s documentation and evaluates it against the appropriate standard. Id. at 5-4. B. Specific Accreditation Requirements for Delegated Credentialing 1. Credentialing Policies For a health care provider such as a physician group practice to conduct delegated credentialing and recredentialing, it has to meet a number of requirements under the NCQA Accreditation Requirements. First and foremost, the provider has to have credentialing policies which include a well-defined credentialing and recredentialing process for evaluating and selecting licensed EE-7

independent practitioners to provide care to [the health plan s] members. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR1: Credentialing Policies, 307. The provider s credentialing policy must reflect a rigorous process to select and evaluate practitioners. Id. The credentialing policy has to address the types of practitioners that the provider will credential and recredential. Id. at CR1, Element A(1). In other words, the provider will have to decide whether it is going to conduct delegated credentialing only for physicians or for physicians and other individual providers, such as advanced care practitioners. The provider s credentialing policy will also have to identify, among other things, the verification sources used, the criteria for credentialing and recredentialing, the process for making credentialing and recredentialing decisions, and the process for ensuring the confidentiality of credentialing information. Id. at CR1, Element A(2), (3), (4) & (11). 2. Practitioners Rights NCQA Accreditation Requirements also have mandates for practitioners rights. Id. at CR1, Element B. Delegates must notify the practitioners who they credential about their right to review information submitted to support their credentialing application, correct any erroneous information in their credentials files, and receive the status of their application upon request. Id. at CR1, Element B(1)-(3). With respect to practitioners right to review information from outside sources, the delegate does not have to, under NCQA Requirements, make available sensitive information such as peer references, peer recommendations, and peer review protected information. Id. A delegate s credentialing policy should include an appeal process for practitioners who are subject to a professional review action. Id. at CR7, Element C. The NCQA appeal process is not as detailed as the safe harbor adequate notice and hearing provisions in the Health Care Quality Improvement Act ( HCQIA ). 42 U.S.C. 11112(b). Nonetheless, the delegate s credentialing policy should reflect the provisions in the HCQIA so that the delegate is eligible for immunity under the law for any actions that it might have to take against a practitioner. EE-8

3. Credentialing Committee Delegates must have a credentialing committee that uses a peer-review process to make recommendations regarding credentialing decisions. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR2: Credentialing Committee. The credentialing committee uses participating providers to provide advice and expertise for credentialing decisions. Id. at CR2, Element A(1). The NCQA Standards indicate, in the Explanation section of CR2, that a credentialing committee is required to have members from the range of practitioners participating in the organization s network. In other words, if as a delegate a provider plans to credential advanced practice clinicians, there should be advanced practice clinician representation on the provider s credentialing committee. Under the NCQA Accreditation Requirements for the credentialing committee, a delegate has a couple of options for reviewing applications and credentials packets. The first option is to submit all practitioner files, including files that meet established thresholds and those that do not, to the credentialing committee for review. Id. at CR2, Element A, Factors 2 & 3. The second option is to submit only those practitioner files that do not meet established thresholds for full committee review. Id. Practitioner files that do meet established thresholds can be submitted to the medical director or other qualified physician for review and approval. Id. NCQA does not define what constitutes a practitioner file that meets established thresholds, but it does refer to these files as clean files. Id. Nonetheless, a delegate s policies and procedures should clearly define what constitutes a clean file if the delegate is going to permit them to be reviewed by the medical director. NCQA Accreditation Requirements recognize that there may be a review board or governing body for making final credentialing decisions. The bottom line is that the NCQA standards do not require that the credentialing committee make the final decision on the credentialing and recredentialing of practitioners. However, the URAC standards require final credentialing decisions to be made by the credentialing committee. While the URAC standards are similar in some respects to the NCQA standards, the relevant URAC standard requires that the organization establishes a credentialing EE-9

committee that has final authority to approve or disapprove applications by providers for organization participation status. URAC, Health Plan Accreditation Standards, P CR-3, 214 (2014). (Emphasis added.) Like the NCQA standards, URAC standards allow for decisions on clean applicants to be made by a senior clinical staff person, provide[d] that such designation is documented and provides reasonable guidelines. Nonetheless, for group practices or hospitals which already have a credentialing process in place that complies with other requirements, such as the Medicare Conditions of Participation for Hospitals, and gives the final decision on credentialing to the Board of Directors, there are several options to address this issue. First, since the standard only applies to credentialing and recredentialing practitioners for the purpose of delegated credentialing, a provision could be added to the provider s credentialing policy which gives the credentialing committee final decision-making authority in this area. This final authority would not equate to a decision on medical staff appointment or clinical privileges. It would just pertain to credentialing for participation in the health plan. The credentialing policy could also allow the medical director to make final decisions on credentialing and recredentialing (again, for the limited purpose of participation in the health plan) for all clean applicants. Alternatively, in order to satisfy the URAC requirement, the board of the hospital could appoint a board credentialing committee (or use an established professional affairs committee), and grant that committee final decision-making authority for credentialing or recredentialing practitioners who are seeking provider status with the health insurer. Each health insurer is different and each insurer has some discretion on how it wants to handle delegated credentialing. So it would be a good idea to run these options by the health insurer to confirm that the option meets the insurer s requirements. 4. Verification As a part of the credentialing process, NCQA standards and guidelines also require the verification of credentialing information through primary sources. NCQA Accreditation Requirements obligate delegates to verify the following: (1) a current and valid license to EE-10

practice; (2) a valid DEA or Controlled Dangerous Substance certificate, if applicable; (3) education and training; (4) board certification status, if applicable; (5) work history, including employment dates and any gaps in work history, with any gaps over one year being clarified in writing by the practitioner; (6) malpractice history; (7) state sanctions; and (8) any Medicare and Medicaid sanctions. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR3: Credentialing Verification. 5. Additional Accreditation Requirements NCQA has requirements for credentialing applications. To the extent that a provider interested in delegated credentialing intends to use its current application, the application should be reviewed for compliance with relevant accreditation standards. Under NCQA Accreditation Requirements, the credentialing application must include the following: (1) Reasons for inability to perform the essential functions of the position. (2) Lack of present illegal drug use. (3) History of loss of license and felony convictions. (4) History of loss or limitation of privileges or disciplinary actions. (5) Current malpractice insurance coverage. (6) Current and signed attestation confirming the correctness and completeness of the application. Id. at CR3, Element C. Because health insurer credentialing does not involve or implicate any type of employment relationship, these requirements, on their face, do not take into consideration employment discrimination laws. Thus, if a delegated provider is using an employment application for employment purposes and delegated credentialing purposes, the employment discrimination laws should be taken into account. For example, the Americans with Disabilities Act prohibits disability-related questions before a conditional offer of employment has been made. 42 U.S.C. 12112(d)(2). In light of this, the employment application, if used for delegated credentialing purposes, should not be amended to comply with the NCQA mandates requiring the credentialing application to include the [r]easons for inability to perform the essential functions of the position. The NCQA Accreditation Requirements do make a passing reference to this in the Explanation section for CR3, Element C, where they instruct that [t]he inquiry regarding inability to perform essential functions may vary or may exceed NCQA standards, depending on the organization s interpretation of applicable legal requirements such as the Americans with Disabilities Act. EE-11

While listing every single one of the NCQA Accreditation Requirements for credentialing is beyond the scope of this paper, there are a few others which are of interest for providers intending to take on delegated credentialing. For example, the delegate must perform recredentialing at least every 36 months. This should not be a problem for hospital providers considering the Joint Commission requires and the Medicare Hospital Conditions of Participation recommend that individual providers are recredentialed no more than every two years. See The Joint Commission, Accreditation Requirements for Hospitals, MS.06.01.07, Element 9 (2016) ( Privileges are granted for a period not to exceed two years ) & Medicare, Conditions of Participation for Hospitals, Interpretive Guidelines for 42 C.F.R. 482.22(a)(1) (last revised November 11, 2015) ( CMS recommends that an appraisal be conducted at least every 24 months for each practitioner. ); see also 28 Pa. Code 107.5(c) ( Reappointment shall be required of every member of the medical staff at regular intervals no longer than every 2 years. ). NCQA Accreditation Requirements for credentialing and recredentialing also require ongoing monitoring and interventions. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR6: Ongoing Monitoring and Interventions. This is basically a pared-down peer review process which involves the collection and review of certain types of information (such as Medicare and Medicaid sanctions, adverse events, and patient complaints) and the implementation of appropriate interventions to address any identified issues. Id. at CR6, Element A. CR 7 of the NCQA Accreditation Requirements addresses mandates related to notifying the appropriate authorities when an action has been taken against a practitioner and practitioner appeal rights for any such action. Under CR7, policies and procedures must describe the incidents that are reportable, how and when reporting occurs, the entities to which reports are made, and the reporting responsibilities of the staff. Hospitals and group practices that have implemented a peer review process may not include these details in their policies and procedures. However, if a provider intends to engage in delegated credentialing, policies and EE-12

procedures should be reviewed for compliance and amended if not in compliance with this requirement. III. Medicare, Medicaid and State Credentialing Requirements The NCQA Accreditation Requirements are comprehensive when it comes to credentialing standards and most of the requirements overlap with federal and state requirements for health insurer credentialing. However, there are a few additional requirements under federal and state law and regulations. If a provider is interested in taking on delegated credentialing for an insurer that has Medicare Advantage and Medicaid plans, these details will need to be addressed in the delegate s policies and procedures. For example, Medicare Advantage plans have to have written policies and procedures for the selection and evaluation of providers to serve on their panels. 42 C.F.R. 422.204(b). These policies and procedures have to include an initial credentialing process that involves the use of a written application, verification of state licensure or certification from primary sources, any state licensure discipline, and eligibility for payment under Medicare. Id. at 422.204(b)(2)(i). Recredentialing must occur at least every three years with a process that ensures updates to information obtained during initial credentialing and evaluation of performance indicators collected through quality improvement programs. Id. at 422.204(b)(2)(ii). While most of these requirements overlap with accreditation standards, some do not. For example, Medicare requires verification that the practitioner has not opted out of participation with Medicare or is excluded from Medicare participation. 42 C.F.R. 422.204(b)(4); see also Medicare, Managed Care Manual, Chapter 6 Relationships with Providers, 60.2 (last revised June 6, 2003) (describing excluded provider and opt-out provider checks for confirmation of eligibility for participation in Medicare). Additionally, the Participation Procedures for the Medicare Advantage program arguably do not permit the use of a hearing officer, as opposed to a hearing panel, for a practitioner s right to challenge a decision to exclude him or her from panel participation. See 42 C.F.R. 422.202(d) (providing for a practitioner s right to appeal an adverse decision and indicating that the majority of the hearing panel members are peers of the EE-13

affected physician ). At least one major health insurer has interpreted this provision as only allowing for a hearing panel, and not a hearing officer, for practitioner appeals. Pennsylvania Medicaid requirements for provider enrollment parallel, in most respects, those of Medicare and accreditation entity requirements. The Affordable Care Act s program integrity provisions for provider screening and enrollment have been incorporated into the Pennsylvania Medicaid enrollment requirements. Pa. Dep t of Health and Human Servs., Provider Enrollment and Screening Requirements of the Affordable Care Act, http://www.dhs.pa.gov/provider/providerenrollmentandscreeningrequirementsoftheaffordablecar eact/index.htm (last visited Dec. 6, 2016). These provisions include criminal background checks and provider screening based on risk level for fraud and abuse. Id. See also Pa. Dep t of Health and Human Servs., MA Assistance Bulletin 99-16-13, Assignment of ACA Categorical Risk Levels and the Implementation of Site Visits, http://www.dhs.pa.gov/cs/groups/webcontent/documents/bulletin_admin/c_235991.pdf (last visited Dec. 6, 2016). Accordingly, if a provider is performing delegated credentialing for a Medicaid managed care organization, the managed care organization is going to require that you agree to these Medicaid mandates when carrying out your delegated credentialing duties. Pennsylvania has a number of credentialing requirements for managed care organizations. Under 28 Pa. Code 9.761, managed care plans are required to establish, maintain and adhere to a health care provider credentialing system for the purpose of creating an adequate health care provider network. Any such credentialing system must include policies and procedures addressing, among other things, initial credentialing, recredentialing (which includes an evaluation of enrollee satisfaction and quality insurance data), and restrictions on and termination of plan participation. Id. at 9.761(a). As noted earlier, many of the Pennsylvania managed care credentialing rules overlap with what is required by accreditation entities such as NCQA. Pennsylvania recognizes this and indicates in the regulations that [a] plan may meet the requirements of [ 9.761] by establishing a credentialing system that meets or exceeds standards of a Nationally recognized accrediting body acceptable to the Department. Id. at 9.761(c). EE-14

IV. Credentialing Best Practices The NCQA Accreditation Requirements, federal regulations, and state regulations provide a floor for eligibility criteria for initial credentialing and recredentialing. For example, the NCQA Accreditation Requirements obligate the credentialing entity to verify [a] current valid license to practice. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR3: Credentialing Verification, Element A(1). But, providers, whether it is a physician group practice or a hospital, want to attract and grant membership to only highly qualified individuals. The basic qualifications or threshold eligibility requirements for credentialing and recredentialing should be expanded in pursuit of this desire. Therefore, the NCQA requirement for [a] current valid license to practice could be expanded to a current, unrestricted license and registration in this state, which is not subject to any probationary terms or conditions not generally applicable to all licensees, and have never had a license to practice or registration revoked, restricted or suspended by any state licensing agency. If starting from scratch in drafting a credentialing policy that will be used for delegated credentialing purposes, a delegate may also want to consider if other threshold eligibility criteria make sense even though the criteria are not required by regulation or accreditation standard. Such a criterion could include the following: the practitioner has not had medical staff or allied health staff appointment, clinical privileges, or status as a participating provider denied, revoked, or terminated by any health care facility or health plan for reasons related to clinical competence or professional conduct. A delegate s credentialing policy should include authorization for release and immunity granted by applicants and members and an agreement that the hearing process is the sole and exclusive remedy for actions taken. Additional provisions that could be included in a credentialing policy to protect those performing credentialing functions and the credentialing entity is an agreement by the applicant that if the applicant does challenge an action and does not prevail, he or she will be responsible for all costs incurred in defending such legal action, including costs and attorneys fees, and expert witness fees. EE-15

Regulatory and accreditation requirements often do not specify how a health plan or its delegate must conduct peer review. Instead, these requirements generally say that it must be done. The NCQA Accreditation Requirements instruct that appropriate interventions must be implemented when an instance of poor quality is identified. Id. at CR6, Element A(5). Similarly, the Medicare Managed Care Manual notes that [i]n the event that an MA organization finds an incidence of poor quality or any type of sanction activity against a health care professional, it should intervene and correct the situation appropriately. Medicare, Managed Care Manual, Chapter 6 Relationships with Providers, 60.2. Nonetheless, a delegated provider s credentialing policy should include details on how peer review will be conducted. A detailed section on collegial intervention should be included. Most issues relating to clinical competence or professional behavior can be addressed and resolved through collegial intervention efforts. Provisions on automatic relinquishment of membership should also be included. Automatic relinquishment is a self-executing process that is triggered when certain defined events occur or when certain defined requirements are not met. For instance, membership should be automatically relinquished any time an individual fails to satisfy the basic qualifications. Automatic relinquishment could also be triggered if a member fails to provide requested information or if there is criminal activity such as an arrest, indictment, or conviction pertaining to any felony or to certain misdemeanors. As noted earlier, NCQA Accreditation Requirements have mandates for practitioner hearing/appeal rights when an adverse action is taken. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR7: Practitioner Appeal Process, Element A. Under NCQA, the following elements must be a part of the practitioner appeal process: written notification indicating that a professional review action has been brought against the practitioner, reasons for the action and a summary of the appeal rights and process, allowing the practitioner to request a hearing and the specific time period for submitting a request, allowing at least 30 calendar days after the notification for the practitioner to request a hearing, allowing the practitioner to be represented by an attorney or another person of the practitioner s choice, appointing a hearing officer or a panel of individuals to review the appeal, and providing written notification of the appeal decision that EE-16

contains the specific reasons for the decision. While satisfaction of these requirements is a good starting point, a delegate s credentialing policy should go further and include all the requirements necessary for the delegate to be eligible for application of the notice and hearing safe harbor in the HCQIA. For example, the credentialing policy should specifically outline the practitioner s rights during the hearing, which, in addition to representation by an attorney or another person of the practitioner s choice, include the right to: have a record made of the proceedings; to call, examine, and cross-examine witnesses; to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law; and to submit a written statement at the close of the hearing. 42 U.S.C. 11112(b)(3)(C). V. Negotiating with Health Insurers Providers interested in becoming a delegate will want to reach out to health insurers as earlier as possible. This will assist the provider in determining what the insurer requires of the provider to become a delegate for credentialing purposes and, in particular, any requirements the insurer has which are separate from NCQA Accreditation, federal, and state requirements. For example, in our experience, at least one health insurer required that a physician group practice have a year of experience credentialing practitioners under the group practice s delegated credentialing policies and procedures. The same insurer required the physician group practice to credential all of its practitioners from scratch. Some of these requirements may be negotiable since they are not necessarily rooted in accreditation or regulatory sources, but, rather, are practices of the health plan. Providers may also want to discuss with the health insurer whether the insurer prefers using its own delegated credentialing agreement or would, instead, use a delegated agreement proposed by the provider. For smaller health care providers that do not have the time or resources to draft their own delegated credentialing agreement, they may want to look to the health plan for a first draft of a proposed contract. Many of the larger health insurers will have their own delegated credentialing agreements and will insist on starting from those agreements. However, some of the provisions in those proposed agreements are negotiable and providers should review them carefully for any desired revisions and to ensure that the provider is capable of complying with the agreement. EE-17

The same goes for the credentialing plan or policy. That is, some health insurers, especially the larger insurers, will have their own credentialing policies. However, unlike the delegated credentialing agreement, there is more room for negotiation when it comes to a provider using its own credentialing policy. A provider interested in delegated credentialing should push hard for using its credentialing policy for a couple of reasons. First, a provider, whether it is a hospital or a group practice, is going to be familiar with its policies and procedures. Further, if the provider is going to have a number of different delegated credentialing agreements with different insurers, the provider is going to want to be performing its credentialing under the same policy. Second, health plans often are not as sophisticated with credentialing as hospitals (and even physician group practices). Health plan credentialing policies may not incorporate the various nuances of credentialing that a hospital credentialing policy would. A well-designed hospital or physician group practice credentialing policy will not only comply with accreditation, legal, and regulatory requirements, it will also include provisions which optimize the credentialing process, such as threshold eligibility criteria, automatic relinquishment, and hearing and appeal procedures that maximize the likelihood of HCQIA immunity. One of the most important items that a provider will want to clarify in its negotiations with health plans is the effective date for participating practitioners. The effective date should be the date on which the delegated credentialing entity makes a final credentialing decision on a particular provider. The delegated provider will want to include language in the agreement that the effective date for a practitioner s participation with the insurer is the date on which the practitioner is credentialed by the delegated provider. The NCQA Accreditation Requirements for credentialing and recredentialing contain distinct topics which must be addressed by a delegated credentialing agreement. Under NCQA, the delegation agreement must be in writing and mutually agreed upon, describe[] the delegated activities and the responsibilities of the [health plan] and the delegated entity, require[] at least semiannual reporting of the delegated entity to the [health plan], describe[] the process by which the organization retains the right to approve, suspend and terminate individual practitioners, providers and sites, even if the [health plan] delegates decision making, and EE-18

describe[] the remedies available to the organization if the delegated entity does not fulfill its obligations, including revocation of the delegation agreement. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR9: Delegation of CR, Element A. Thus, any proposed delegated credentialing agreement between a provider and a health plan must satisfy these requirements. Finally, NCQA requires health insurers to conduct a pre-delegation evaluation. Id. at Element C. As a part of this pre-delegation evaluation, a provider should discuss with the insurer when and where the insurer is going to conduct the pre-delegation evaluation, what documents the insurer will review, when the provider will receive the results of the evaluation, and the process for responding to the findings of the pre-delegation evaluation. VI. Sub-delegation Earlier in this paper, delegation was defined as a health insurer giving another entity, usually a health care provider, the authority to perform an activity that the health plan is required to perform under NCQA standards and guidelines. Id. at Appendix 5 Guidelines for Delegation and Automatic Credit, 5-2. The health insurer is still ultimately responsible for the delegated functions conducted by the health care provider but the health care provider takes the lead in performing the functions. Sub-delegation of certain delegated functions is permitted under the NCQA Accreditation Requirements. Sub-delegation is a straightforward concept as well, and means that the health care provider, as a delegate, gives a third party the authority to carry out a function that was delegated to the provider by a health insurer. For example, a health insurer may delegate credentialing, recredentialing, and credentials verification to a physician group practice that is owned by a health system. The health system uses a CVO for verifying all of the credentials information required for a practitioner. The CVO does all of the credentials verification for the physician group practice. The physician group practice, as a delegate for the health insurer for credentialing, recredentialing, and credentials verification, sub-delegates the credentials verification function to the CVO. EE-19

Providers pursuing delegated credentialing should make sure that the delegated agreement permits sub-delegation if the provider intends to sub-delegate certain activities, such as credentials verification. Typically, health insurer template delegation agreements do not address sub-delegation and, if they do, the agreements do not categorically prohibit sub-delegation. It is not unusual for a sub-delegation clause in a proposed agreement to read as follows: Under certain circumstances, the health plan may allow the health care provider, as the delegated entity, to sub-delegate all or a part of its delegated activities under the agreement. If a provider, as a delegate, intends to sub-delegate functions such as credentials verification, it should negotiate more permissive language regarding sub-delegation. For example, the delegate should negotiate for a sub-delegation clause that instead reads as follows: As a delegate for credentialing, recredentialing, and credentials verification, the health care provider intends to sub-delegate credentials verification to a credentials verification organization. The health plan agrees to such sub-delegation provided the criteria for sub-delegation in this agreement are met. NCQA standards require that either the health insurer or the delegate health care provider oversee the sub-delegate s performance of the sub-delegated activity and that the delegated agreement specify who is responsible for this oversight. If the health care provider as a delegate agrees to oversee the sub-delegate s activity, then it is required to report to the health plan on the sub-delegate s performance. Id. at Appendix 5 Guidelines for Delegation and Automatic Credit, 5-5. A health insurer may insist, as a condition of delegating credentialing, that the delegate oversees any sub-delegate s performance of sub-delegated activities. Nonetheless, the sub-delegation agreement should at a minimum spell out the respective responsibilities of the parties. The sub-delegate agrees to perform its sub-delegated activities in compliance with NCQA Accreditation Requirements and state and federal law and regulations and the delegate agrees to perform oversight of the sub-delegate s activities. VII. Querying and Reporting If the delegate is a physician group practice and the physician group practice has agreed to perform credentialing activities, including credentials verification, then the physician group EE-20

practice will need to query the NPDB for malpractice history and any actions taken by other health care entities. Under the HCQIA, hospitals are required to query the NPDB. 42 U.S.C. 11135(a). A health care entity may query the Data Bank. NPDB, NPDB Guidebook, Chapter D ( Queries ), available at https://www.npdb.hrsa.gov/resources/aboutguidebooks.jsp (April 2015). A health care entity is an entity that provides health care services and follows a formal peer review process. Id. at Chapter D ( Defining Eligible Entities ). A physician group practice that wants to do delegated credentialing for a health plan would fit the definition of health care entity because the group practice has relationships, typically employment relationships, with physicians and other practitioners to provide health care services and will follow a formal peer review process, which is required by NCQA Accreditation Requirements. Therefore, a physician group practice is an eligible entity and may query the NPDB for credentials verification purposes. If the physician group practice wants to sub-delegate credentials verification to a CVO, the group practice would register as the eligible entity and designate the CVO as an authorized agent for querying. The CVO would register as the authorized agent for the group practice. See generally Id. at Chapter D ( Queries: Authorized Agents ). With respect to reporting, the NPDB requires hospitals and other health care entities to report adverse clinical privileges actions. Id. at Chapter E ( Reports Reporting Clinical Privileges Actions ). An adverse clinical privileges action is defined as: 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 by a health care entity relating to possible incompetence or improper professional conduct, or (2) in return for not conducting such an investigation or proceeding. Clinical privileges include privileges, medical staff membership, and other circumstances (e.g., network participation and panel membership) in which a physician, dentist, or other health care practitioner is permitted to furnish medical care by a health care entity. EE-21

NCQA also requires reports of practitioner suspensions or terminations to the appropriate authorities, including the NPDB. NCQA, Standards and Guidelines for the Accreditation of Health Plans, Credentialing and Recredentialing, CR7: Practitioner Appeal Process, Element B. NCQA states that credentialing policies and procedures describe what specific incidents are reportable, how and when reporting occurs, and to whom incidents are reported. Id. at Element A, Explanation Factor 2. In our experience, some health insurers will request the actual NPDB report to conduct a pre-delegation evaluation. However, sharing of NPDB reports for this purpose is not permitted under the NPDB Guidebook. According to the Guidebook, In a delegated credentialing arrangement, the health care entity that delegates its credentialing responsibilities is not considered part of the credentialing process and is prohibited from receiving NPDB query results. NPDB, NPDB Guidebook, Chapter D ( Queries Delegated Credentialing ). VIII. Conclusion Delegated credentialing can help organizational health care providers achieve a number of goals, including reducing redundancies in credentialing and facilitating the placement of their individual practitioners on health insurance panels in a more timely fashion. Hospitals and some physician group practices have an abundance of experience in credentialing practitioners. This experience, and the policies and processes underlying it, lends itself well to the delegated credentialing process. However, before a provider can enter into a delegated credentialing arrangement with a health insurer several tasks must be performed, such as reviewing (and, if necessary, revising) credentialing policies for compliance with accreditation and legal requirements. None of these tasks are overly difficult to complete and operationalize. Organizational health care providers who desire more efficient and timely health insurer credentialing may want to explore delegated credentialing. EE-22