Choosing the Correct Corrective Action

Choosing the Correct Corrective Action Session Code: TU16 Date: Tuesday, October 24 Time: 2:30 p.m. - 4:00 p.m. Total CE Credits: 1.5 Presenter(s): Timothy Adelman, JD

Choosing the Correct Corrective Action Presented By: Tim Adelman tadelman@hallrender.com (410) 224-3000 Agenda Understanding Corrective Action v. normal Peer Review Understanding the purpose of Corrective Action Overview of the Legal Framework impacting the implementation of Corrective Action Best practices for choosing an effective Corrective Action Corrective Action v. Peer Review Peer Review may refer to an entire process that includes routine reviews, focused reviews, investigation and corrective action. Corrective Action is a specific action imposed on a practitioner to address substandard conduct. Corrective Action 3 1

Peer Review Examples of Peer Review» Review of Quality Reports submitted by individuals» Review of quality data (length of stay, blood loss, return to OR, etc.) to assess a practitioner s performance.» Review of complains by patients relating to care and treatment.» Imposition of an FPPE 4 Peer Review - FPPE Focused Professional Practice Evaluation» FPPE is a process whereby the organization evaluates the privilege-specific competence of the practitioner who does not have documented evidence of competently performing the request privileges or may also be used when a question arises regarding a currently privileged practitioner s ability to provide safe, high quality patient care. TJC MS.08.01.01 5 6 Peer Review - FPPE TJC: MS.08.01.01 Only Has 9 Elements of Performance: Period of evaluation for all initially requested OMS develops criteria for evaluating performance when care issues are identified Monitoring process includes: Criteria for monitoring, method for establishing monitoring plan specific to privilege, method for determining during and circumstances under external monitoring are required Consistently implemented Triggers are clearly defined Decision to monitor is based on current clinical competence, practice behavior and ability to perform privilege Criteria are developed that determine type of monitoring Measures employed to resolve performance issues are clearly defined Measures employed to resolve performance issues are consistently implemented 2

Peer Review - FPPE FPPE is:» a process to evaluate a practitioner s performance. FPPE is not:» a corrective action but may include reportable actions, i.e. the requirement to have a proctor present for all surgical procedures. "A good FPPE process allows a medical staff to bridge the gap between having no firsthand knowledge of a practitioner's competency to one in which we have sufficient information to allow monitoring of ongoing competency through the peer review process." - HealthleadersMedia, 2015 7 Peer Review - FPPE Examples of FPPE for cause:» Chart review of next 10 cases» Use of a proctor to evaluate performance in the Operating Room» Interviews of Operating Room personnel to evaluate the practitioner s conduct» Interviews of staff to determine whether ongoing reachability issues 8 Peer Review - FPPE Examples of what is NOT a FPPE for cause:» Mandating that a practitioner have no further complaints about reachability» Removal from Emergency Department On-Call Roster» Requirement to use surgical first assistant for all procedures. 9 3

Peer Review - FPPE So FPPE is Done, Now What? Preferred: Convert to established OPPE process with no identified or actionable concerns Possible: Continuation or extended duration to validate or resolve concerns Possible: Modification of privileges, additional education or training Possible: Corrective action Corrective Action Examples of Corrective Action» Requirement to have a proctor physical present for the next 10 surgical procedures» Removal from ED on-call roster» Summary Suspension» Letters of reprimand» Termination of clinical privileges» Requirements to attend CME» Requirement to obtain a Physical/Mental Health Evaluation Reporting Obligations for Corrective Action HCQIA State Reporting Obligations Hospital s Response to Future Questions Applicant s Response to Future Questions 4

Health Care Quality Improvement Act HCQIA provides immunity for Professional Review Actions:» Action or recommendation of a professional review body... Which is based on the competence or professional conduct of an individual physician. 42 U.S.C. 11151(9) Health Care Quality Improvement Act HCQIA - Professional review action means an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges of the physician. Health Care Quality Improvement Act Standards for Immunity under HCQIA» Reasonable belief action in furtherance of quality healthcare» Reasonable effort to obtain the facts» Adequate notice and hearing procedures» Reasonable belief that action warranted by facts Rebuttable presumption that immunity standards have been met Must be overcome by preponderance of the evidence 5

NPDB Reporting Obligations Denial of reappointment to hospital medical staff» Report if MEC determines denial relates to professional competence or conduct that could adversely affect patient welfare Denial of application by hospital governing body» Report if a result of a professional review action & related to professional competence Summary Suspension for more than 30 days» Report if based on professional competence/conduct, and a result of a professional review action Restriction on clinical privileges for more than 30 days» Report if result of professional review action based on professional competence/conduct leading to the inability to exercise independent judgment Termination of Privileges (distinct from termination of employment)» Report if a result of a professional review action & related to professional competence/conduct Withdrawal while under investigation or to avoid investigation» Report NPDB Reporting Obligations Walker v. Memorial Health System of East Texas, (2/8/2017) Hospital imposed proctoring requirement for surgeon s next five cases In practice, the requirement remained in place for 30+ days Hospital made a NPDB report stating it imposed a proctoring requirement that lasted longer than 30 days Surgeon sought preliminary injunction requiring hospital s submission of void report *also alleged business disparagement, tortious interference with contract, and racial discrimination NPDB Reporting Obligations Walker v. Memorial Health System of East Texas, (2/8/2017) U.S. District Court judge granted preliminary injunction requiring hospital to submit void report Proctoring requirement was not imposed for more than 30 days, therefore not reportable Although the hospital was aware of the reporting requirements (including the 30-day requirement) it nevertheless decided to adopt a proctoring requirement that is silent as to duration. 6

NPDB Reporting Obligations Takeaways from Walker Restrictions on clinical privileges without a specific duration may not be reportable to NPDB» examples: proctoring requirement for X cases; mandatory pre-procedure consults for certain types of cases; CME requirement before performing a future procedure Summary suspensions versus clinical privileges Courts give deference to NPDB Guidebook State Reporting Obligations May be a requirement for the Hospital or licensed providers to report certain corrective actions. State reporting obligations may exist when a NPDB reporting obligation does not Typically there is immunity for making reports Need to verify peer review privilege to ensure only appropriate information is disclosed. State Reporting Obligations Example: Colorado Statutory Requirement ( 25-3-107) Mandatory to report any disciplinary action to:» suspend,» revoke, or» otherwise limit the privileges of a licensed physician or podiatrist that is taken by a hospital governing board. to the Colorado Medical Board or the Colorado Podiatry Board in the form prescribed by the appropriate Board. The hospital must provide additional information as is deemed necessary by the Colorado medical board or the Colorado podiatry board to conduct a further investigation and hearing. 7

Other Reporting Obligations Some states may require a hospitals may have to respond to inquire for privilege verification. If you do respond to privilege verification, make sure it is accurate. Kadlec Medical Center v. Lakeview Anesthesia Associates, 527 F.3d 412, 2008 U.S. App. LEXIS 10267 (5th Cir. La. 2008) Practitioner may have to answer on applications for licensure or privileges about restrictions, limitations, suspension, or termination of privileges. The risk of failing to take Corrective Action The evidence reveals that the instances of [Dr.] Albaghdadi s abusive treatment of women were greater in number and severity than those involving men. The evidence also suggests that the hospital was aware of Albaghdadi s treatment of Kopp and others. Kopp v. Samaritan Health System 13 F.2d 264 (8 th Cir., 1993) The risk of failing to take Corrective Action Nieto v. Kapoor, 268 F.3d 1208 (10 th Cir., 2001) Dr. Kapoor s behavior which led at least six people to leave the ENMMC, some to leave the state, and some of the profession of nursing altogether affected not only the patients,, plaintiffs, and other employees of the Eastern New Mexico Medical Center, it arguably impacted the overall public health. 8

The risk of failing to take Corrective Action Nieto v. Kapoor, 268 F.3d 1208 (10 th Cir., 2001) Compensatory Damages - $1,875,000 Punitive Damages - $1,875,000 The risk of failing to take Corrective Action In re Peer Review Action 749 N.W. 2d 822 (Minn, 2008) Hospital repeatedly acted in manners contrary to its established safeguarding policies; it treated Physician differently from others who had been subjected to peer review; and it imposed a harshly public punishment against Physician without first attempting a less-extreme intervention. The risk of failing to take Corrective Action In re Peer Review Action 749 N.W. 2d 822 (Minn, 2008) The factual findings made by the district court are sufficient to support the conclusion that Hospital engaged in the intentional doing of a wrongful act or the willful violation of a known right. 9

Legal Protections when taking Corrective Action Case law upholding immunity Cohlmia v. Cardiovascular Surgical Specialists 2012 U.S. App. LEXIS 18877 (10 th Cir., 2012) Summers v. Ardent Health Services 150 N.M. 123, 257 P.3d 943 (2011) Couch v. Board of Trustees of the Memorial Hospital of Carbon County 587 F.3d 1223 (10 th Cir., 2009) Choosing the Correct Corrective Action Example - Rude or Aggressive Surgeon Phase 1 - Informal meeting with the physician to discuss the behavior - not reportable Phase 2 - Issuing a letter of reprimand - not reportable Phase 3 - Implementation of an FPPE - not reportable Phase 4 - Require the practitioner to undergo a mental health evaluation, anger management course, or other behavior modification program - not reportable Choosing the Correct Corrective Action Example - Rude or Aggressive Surgeon Phase 5 - Imposition of a suspension not longer than 14 days to allow for an investigation into the conduct. - not reportable to NPDB but maybe to State Phase 6 - Imposition of summary suspension while further corrective action is considered- reportable to NPDB if longer than 30 days and likely reportable to the State Phase 7 Termination of Clinical Privileges Reportable 10

Choosing the Correct Corrective Action Example Impaired Physician due to suspect substance abuse. Phase 1 - Require the physician to be tested for substances - not reportable to NPDB but suspected impairment may be reportable to the State Phase 2 - The physician may take a medical leave of absence to address the concern - not reportable to NPDB but suspected impairment may be reportable to the State Phase 3 - Require the practitioner to undergo a substance abuse or mental health evaluation - not reportable to NPDB but suspected impairment may be reportable to the State Choosing the Correct Corrective Action Example Impaired Physician due to suspect substance abuse. Phase 4 14 day precautionary suspension to investigate - not reportable to NPDB but may be reportable to the State Phase 5 - Imposition of summary suspension while further corrective action is considered- reportable to NPDB if suspension is longer than 30 days and likely reportable to the State Phase 6 - Termination of Clinical Privileges Reportable Choosing the Correct Corrective Action Example Impaired Physician due to mental or physical condition. Phase 1 - Informal meeting with the physician to discuss the behavior - not reportable Phase 2 - Require the practitioner to undergo a mental health evaluation or skills assessment evaluation. - not reportable Phase 3 - The physician may take a medical leave of absence while the physician undergoes evaluation or treatment for the impairment - not reportable to NPDB but health concern impacting clinical care may be reportable to the State 11

Choosing the Correct Corrective Action Example Impaired Physician due to mental or physical condition. Phase 4 - Imposition of an FPPE that incudes proctoring or observing the physician for a specific number of cases over a period of time or number of cases - Reportable to the NPDB if mandatory to have a proctor and imposed for more than 30 days and may be reportable to the State Phase 5 Imposition of 14 day suspension pending evaluation/investigation - not reportable to NPDB but may be to the State. Phase 5 - Imposition of summary suspension while further corrective action is considered- reportable to NPDB if suspension is longer than 30 days and likely reportable to the State Phase 6 - Termination of Clinical Privileges Reportable Choosing the Correct Corrective Action Example The physician has a significant bad outcome in treatment a patient. Phase 1 - Informal meeting with the physician to discuss the performance - not reportable Phase 2 - Imposition of an FPPE that focuses on chart review as the means of evaluation - not reportable Phase 3 - Require the practitioner to undergo a mental health evaluation or skills assessment evaluation - not reportable Choosing the Correct Corrective Action Example The physician has a significant bad outcome in treatment a patient. Phase 4 - physician may take a leave of absence while the physician undergoes skills training - not reportable Phase 5 - Imposition of an FPPE that incudes proctoring or observing the physician for a specific number of cases over a period of time or number of cases - Reportable to the NPDB if mandatory to have a proctor and imposed for more than 30 days and may be reportable to the State 12

Choosing the Correct Corrective Action Example The physician has a significant bad outcome in treatment a patient. Phase 6 Imposition of 14 day suspension pending evaluation/investigation - not reportable to NPDB but may be to the State. Phase 7 - Imposition of summary suspension while further corrective action is considered- reportable to NPDB if suspension is longer than 30 days and likely reportable to the State Phase 8 - Termination of Clinical Privileges Reportable Additional Corrective Actions to Consider Asking a physician to voluntarily refrain from exercising privileges for a period of time» The NPDB would likely consider this to be reportable. However, if the physician volunteers, without being asked, then this may not be reportable to the NPDB. Requiring a second opinion before procedures» If there is not requirement for a concurring second opinion, then not reportable. Limitation to the number of patient encounters in a day» This is likely not reportable to the NPDB as this is not a restriction on privileges but a limitation on volume. However, there is no clear guidance from NPDB as to how they would interpret the reporting obligation Outside Resources for Corrective Actions Comprehensive Physician Evaluation Programs» Physician Renewal Center» Vanderbilt Center for Professional Health» UC San Diego Physician Assessment and Clinical Education Program Continuing Medical Education Programs» Require physician to obtain approval in advance for a CME program» Review the materials in advance approving the program to make sure it is appropriate» Ensure there is adequate documentation to ensure the program was completed. 13

Outside Resources for Corrective Actions Independent Physical or Mental Health Assessment» Ensure evaluator is approved in advance by Medical Staff Leader(s)» Ensure physician is required to execute any authorization necessary for the evaluator to speak to the Medical Staff Leader(s)» Ensure evaluator is aware of the issues/concerns so a proper assessment can be completed» Require physician to follow through with any ongoing treatment recommendations Proctors» Consider whether you require physician to arrange for and pay for the cost of a proctor» Ensure proctor has appropriate clinical privileges at the Hospital» Require the proctor to prepare a written evaluation following each case or at the conclusion of a series of cases.» Assess who is covering the proctor s liability in performing the role of proctor. Concepts to Remember Do not confuse FPPE with Corrective Action Prefer to use escalating Corrective Action Tailor Corrective Action to the specific substandard conduct to be addressed Ensure you understand both NPDB and State reporting obligations Ensure consistency between Medical Staff Bylaws, Rules, Regulations & Policies 41 Questions? 42 14

Description of Conduct Proposed Corrective Action Reporting Obligations Surgeon is rude and aggressive with Hospital staff while preparing for or performing surgery. Conduct may include yelling at staff, throwing instruments or other materials, saying demeaning comments to staff. Informal meeting with the physician to discuss the behavior. The discussion should focus on identifying the improper conduct, asking the physician how he/she anticipates avoid such conduct in the future, and providing clear expectations moving forward. licensing agencies unless the state has a specific required report for disruptive conduct. While this meeting is informal, a report of the meeting should be documented for the physician credentials/peer review file. Issuing a letter of reprimand identifying the specific conduct that is unacceptable (reference policy and bylaw provisions if applicable) and a warning that further conduct may result in the initiation of formal corrective action. Implementation of an FPPE with the purpose of focusing on professional conduct. This would involve interviewing staff on a periodic basis to determine whether the physician is acting appropriate. The physician should be notified in advance of the FPPE. Require the practitioner to undergo a mental health evaluation, anger management course, or other behavior modification program. You may permit the practitioner to select the course but any course should be approved in advance by a hospital or medical staff leader. It is recommended that the practitioner be required to authorize a representative of the Hospital or medical staff obtain the findings, results and recommendation of any such evaluation or program. If the conduct was egregious, imposition of a suspension not longer than 14 days to allow for an investigation into the conduct. Following the investigation, action should be taken to (1) further evaluate the physician's performance; (2) licensing agencies unless the state has a specific required report for disruptive conduct. licensing agencies unless the state has a specific required report for disruptive conduct. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. licensing agencies unless the state has a specific required report for disruptive conduct. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. but may be report to state licensing agencies. The practitioner would be considered under an "investigation" such that a resignation while under this suspension would require a report

impose corrective action; or (3) close the matter. If the conduct is egregious or repetitive and the conduct may result in an imminent danger to the health of any individual i, imposition of summary suspension while further corrective action is considered. If the conduct is egregious or excessively repetitive, a recommendation to terminate or not renew clinical privileges. Remember, unless the physician is also summarily suspended, the physician may continue to exercise their clinical privileges until they have exhausted their due process rights under the Medical Staff Bylaws. to the NPDB and/or state licensing agency. If the suspension is not longer than 30 days, this is not reportable to the NPDB but may be report to state licensing agencies. If the suspension is longer than 30 days, then it is reportable to the NPDB and likely the state licensing agency. Termination of clinical privileges is reportable once the action is final, i.e. the governing body has upheld the recommendation and hearing/appeal rights are exhausted. Description of Conduct Proposed Corrective Action Reporting Obligations The physician appears impaired due to suspect substance abuse. If permitted by the Medical Staff Bylaws, Rules, Regulations or policies, immediately require the physician to be tested for substances. If the results are positive, review the results with the physician during an informal meeting and recommend the physician enroll in the state physician health program. If the physician test positive for substance or admits to substance abuse while treating patients or on-call, the physician may take a medical leave of absence to address the concern. It is recommended that the Medical Staff Bylaws prohibit returning from a medical leave of absence until approved by the medical staff leaders or hospital administrator. Require the practitioner to undergo a substance abuse or mental health evaluation. You may permit the practitioner to select the course but any course should be approved in advance by a hospital or medical staff leader. It is recommended that the practitioner be required to authorize a representative of the Hospital or Suspected impairment while practicing medicine is typically reportable to state licensing agencies by Hospital and maybe by physicians individually. Some states do not require a report by the Hospital if the physician self-refers to the physician health program. unless there is an associated professional review action that last longer than 30 days. Suspected impairment while practicing medicine is typically reportable to state licensing agencies by Hospital and maybe by physicians individually. Some states do not require a report by the Hospital if the physician self-refers to the physician health program. unless there is an associated professional review action that last longer than 30 days. licensing agencies unless the state has a specific required report for disruptive conduct. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE

medical staff obtain the findings, results and recommendation of any such evaluation or program. If the facility is concerned that the practitioner is not safe to practice while the substance abuse or mental health evaluation is being performed, a suspension may be imposed not longer than 14 days to allow for evaluation and investigation into the conduct. If the impairment is egregious, imposition of summary suspension while further corrective action is considered. If the conduct is egregious, a recommendation to terminate or not renew clinical privileges. Remember, unless the physician is also summarily suspended, the physician may continue to exercise their clinical privileges until they have exhausted their due process rights under the Medical Staff Bylaws. could require a report to the NPDB and/or state licensing agency. but may be report to state licensing agencies due to suspected impairment while treating patients or due to the length of a suspension. The practitioner would be considered under an "investigation" such that a resignation while under this suspension would require a report to the NPDB and/or state licensing agency. If the suspension is not longer than 30 days, this is not reportable to the NPDB but may be report to state licensing agencies. If the suspension is longer than 30 days, then it is reportable to the NPDB and likely the state licensing agency. Termination of clinical privileges is reportable once the action is final, i.e. the governing body has upheld the recommendation and hearing/appeal rights are exhausted. Description of Conduct Proposed Corrective Action Reporting Obligations The physician appears impaired due to mental or physical limitations. This may include the aging practitioner who appears to have reduction in his/her clinical or cognitive skill. Mandating a physical/mental evaluation or skills assessment based solely on age may be a violation of the ADA/ADEA. There must be some associated (observed) conduct that indicates an impairment. Informal meeting with the physician to discuss the concerns. The discussion should focus on identifying the concerned conduct, methods to reduce the effect of the impaired due to mental or physical limitations (such as using a surgical 1 st assistance or voluntarily relinquishing privileges for certain procedures). While this meeting is informal, a report of the meeting should be documented for the physician credentials/peer review file. Require the practitioner to undergo a mental health evaluation or skills assessment evaluation. You may permit the practitioner to select the evaluator or assessment course but the evaluator or assessment course should be approved in advance by a hospital or medical staff leader. It is recommended that the practitioner be licensing agencies unless the state has a specific required report for concerns of provider impairment. licensing agencies unless the state has a specific required report for concerns of provider impairment. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for

required to authorize a representative of the Hospital or medical staff to obtain the findings, results and recommendation of any such evaluation or assessment course. The physician may take a medical leave of absence while the physician undergoes evaluation or treatment for the impairment. It is recommended that the Medical Staff Bylaws prohibit returning from a medical leave of absence until approved by the medical staff leaders or hospital administrator. Imposition of an FPPE that incudes proctoring or observing the physician for a specific number of cases over a period of time or number of cases. For example, the physician must be observed 10 times over the next 30 cases or 30 days. Imposition of an FPPE that requires a proctor or observer for a specific number of cases or time period. For example, the physician must have a proctor or observe present for the next 10 cases or for each patient encounter over the next 30 days. The difference between this action and the one above is that the physician cannot perform a specific procedure without a proctor or observer present. If the facility is concerned that the practitioner is not safe to practice while the mental health evaluation or skills assessment is being performed, a suspension may be imposed not longer than 14 days to allow for evaluation and investigation into the conduct. clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. This is not reportable to the NPDB. It may be reportable to a state licensing agency if report for impairment is required. licensing agencies as the FPPE but do not restrict the privileges as there is not a specific mandate to have a proctor/observe for a specific patient encounter. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. This is reportable to the NPDB if the restriction is imposed for more than 30 days and may also be reportable to the state licensing agencies. If the proctoring/observer requirement can be completed within 30 days, then it would not be reportable to the NPDB. This could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. but may be report to state licensing agencies due to suspected impairment while treating patients or due to the length of a suspension. The practitioner would be considered under an "investigation" such that a resignation while under this suspension would require a report to the NPDB and/or state licensing agency.

If it is believed that the impairment may result in an imminent danger to the health of any individual, imposition of summary suspension while further evaluation or corrective action is considered. If the impairment is significant, the medical may make a recommendation to terminate or not renew clinical privileges. Remember, unless the physician is also summarily suspended, the physician may continue to exercise their clinical privileges until they have exhausted their due process rights under the Medical Staff Bylaws. If the suspension is not longer than 30 days, this is not reportable to the NPDB but may be report to state licensing agencies. If the suspension is longer than 30 days, then it is reportable to the NPDB and likely the state licensing agency. Termination of clinical privileges is reportable once the action is final, i.e. the governing body has upheld the recommendation and hearing/appeal rights are exhausted. Description of Conduct Proposed Corrective Action Reporting Obligations The physician has a significant bad outcome in treatment a patient. For example, the physician perforates the colon during a procedure, does not recognize the perforation, fails to appreciate the cause of the patient's demise in the days following the procedure and the patient suffers physical harm. Informal meeting with the physician to discuss the clinical performance. The discussion should focus on identifying concerns with the clinical performance, asking the physician how he/she anticipates address the clinical concerns, and providing clear expectations moving forward. While this meeting is informal, a report of the meeting should be documented for the physician credentials/peer review file. Imposition of an FPPE that focuses on chart review as the means of evaluation. This may include a retrospective review of patient charts and may require the physician to provide access to their office charts to further evaluate the patient care. Require the practitioner to undergo a mental health evaluation or skills assessment evaluation. You may permit the practitioner to select the evaluator or assessment course but the evaluator or assessment course should be approved in advance by a hospital or medical staff leader. It is recommended that the practitioner be required to authorize a representative of the Hospital or medical staff to obtain the findings, results and recommendation of any such evaluation or assessment course. licensing agencies. licensing agencies. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. licensing agencies unless the state has a specific required report for concerns of provider impairment. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency.

The physician may take a leave of absence while the physician undergoes skills training. It is recommended that the Medical Staff Bylaws prohibit returning from a leave of absence until approved by the medical staff leaders or hospital administrator. Imposition of an FPPE that incudes proctoring or observing the physician a specific number of times over a period of time or number of cases. For example, the physician must be observed 10 times over the next 30 cases or 30 days. Imposition of an FPPE that requires a proctor or observer for a specific number of cases or time period. For example, the physician must have a proctor or observe present for the next 10 cases or for each patient encounter over the next 30 days. The difference between this action and the one above is that the physician cannot perform a specific procedure without a proctor or observer present. If the facility is concerned that the practitioner is not safe to practice while the mental health evaluation or skills assessment is being performed, a suspension may be imposed not longer than 14 days to allow for evaluation and investigation into the conduct. If it is believed that the impairment may result in an imminent danger to the health of any individual, imposition of summary suspension while further evaluation or corrective action is considered. This is not reportable to the NPDB. It may be reportable to a state licensing agency. licensing agencies as the FPPE but do not restrict the privileges as there is not a specific mandate to have a proctor/observe for a specific patient encounter. However, this could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. This is reportable to the NPDB if the restriction is imposed for more than 30 days and may also be reportable to the state licensing agencies. If the proctoring/observer requirement can be completed within 30 days, then it would not be reportable to the NPDB. This could be interpreted as an "investigation" such that a resignation or failing to reapply for clinical privileges during this FPPE could require a report to the NPDB and/or state licensing agency. but may be report to state licensing agencies due to suspected impairment while treating patients or due to the length of a suspension. The practitioner would be considered under an "investigation" such that a resignation while under this suspension would require a report to the NPDB and/or state licensing agency. If the suspension is not longer than 30 days, this is not reportable to the NPDB but may be report to state licensing agencies. If the suspension is longer than 30 days, then it is reportable to the NPDB

If the impairment is significant, the medical may make a recommendation to terminate or not renew clinical privileges. Remember, unless the physician is also summarily suspended, the physician may continue to exercise their clinical privileges until they have exhausted their due process rights under the Medical Staff Bylaws. and likely the state licensing agency. Termination of clinical privileges is reportable once the action is final, i.e. the governing body has upheld the recommendation and hearing/appeal rights are exhausted. i See The Joint Commission Sentinel Event Alert, Issue 40: Behaviors that undermine a culture of safety, July 9, 2008.