Difficult Physicians


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Physicians can pose problems by not responding to facility calls and inquiries, taking liberties with notes and statements in the residents\'
medical records, and present risk due to issues and investigations with the Medical Board. This program offered providers guidance on managing such difficult issues, including how to identify, resolve and document these issues. The program will discuss issues of residents\'
rights, physician credentialing programs and other relevant legal

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Difficult Physicians

  1. 1. Difficult Physicians & Issues That Arise DIFFICULT PHYSICIANS AND ISSUES THAT ARISE Scott Kiepen Darryl Ross Hooper, Lundy & Bookman Wroten & Associates 575 Market Street, Suite 2300 20 Pacifica, Suite 1100 San Francisco, CA 94105 Irvine, CA 92618 (415) 875-8510 (949) 788-1790 OVERVIEW Physicians can pose problems: Not attending resident visits as frequently as necessary Failing to respond to facility calls and inquiries Inaccurate notes / statements in medical record Failure to respect privacy of residents Physician conduct outside of facility that may compromise resident safety Physician no longer caring for residents as facility deems necessary Physicians subject to investigations or discipline by Medical Board Unreasonable demands on facility personnel Physician credentialing programs Can you refuse to permit a physician to enter your building? Can you refuse to allow a physician to see his/her patient? Long term approach to constructive resolution Quality Assurance Facility Leadership Mandatory Reporting RISK CREATED BY PHYSICIAN ISSUES Citations and deficiencies for poor care Citations and deficiencies for failing to report Citations and deficiencies for alleged kickbacks depending on pricing structure of physician compensation Potential cross referral to BMFEA for criminal investigation Civil lawsuits from unhappy families Civil suits from physicians for interference with patient/physician relationshipScott Kiepen / Darryl Ross 1
  2. 2. Difficult Physicians & Issues That Arise FACILITY RIGHTS & OBLIGATIONS vs RESIDENTS RIGHTS 42 Code of Federal Regulations § 483.10 The resident has a right to a dignified existence, self- determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident…. 42 CFR § 483.10(d)(1): Free Choice Right to Choose Physician: Every resident has the right to choose his/her own physician and pharmacy. Residents do not have to use the nursing homes physician or pharmacy. 42 CFR § 483.10(e): Privacy and confidentiality. The resident has the right to personal privacy and confidentiality of his or her personal and clinical records. FACLITY / RESIDENT TESNION – FEDERAL SCHEME 42 U.S.C. 1395i–3(b)(1) Quality of life: “In general - a skilled nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.” 42 U.S.C. 1395i–3(c)(1)(a) Specified rights - A skilled nursing facility must protect and promote the rights of each resident, including each of the following rights: Right to choose a personal attending physician, Fully informed in advance about care and treatment, Fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, Participate in care and treatment or changes in care and treatment. FACLITY / RESIDENT TESNION – STATE SCHEME 22 California Code of Regulations § 72527 (a)(3) To be fully informed by a physician of his or her total health status and to be afforded the opportunity to participate on an immediate and ongoing basis in the total plan of care including the identification of medical, nursing and psychosocial needs and the planning of related services. (a)(5) To receive all information that is material to an individual patients decision concerning whether to accept or refuse any proposed treatment or procedure. (a)(9) To be free from mental and physical abuse. (a)(11) To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs.Scott Kiepen / Darryl Ross 2
  3. 3. Difficult Physicians & Issues That Arise FACILITY RIGHTS Right to enforce provisions to implement systems of care Right to refuse to associate with providers, assuming no residents presently in the facility Right to report physician PRACTICAL CONSIDERATIONS Resident right to access physician of their choice Physician / Medical Board Issue and What Facilities Can / Should Do During Pendency of Any Such Proceedings Conflicts Between Staff and Physicians Facility Obligations to protect residents VEHICLE TO EXERCISE FACILITY RIGHTS Medical Director Administrator QA Process Physician Credentialing Process Attorney Investigations Governing BodyScott Kiepen / Darryl Ross 3
  4. 4. Difficult Physicians & Issues That Arise SOLUTIONS - FACILITY OPERATIONS Shall exercise general supervision over the affairs of the licensed facility and Licensee establish policies concerning its operation in conformance with these regulations and the welfare of the individuals it serves. (Title 22 CCR § 87205 (a)) If the licensee is a corporation or an association, the governing body shall be Governing Body active, and functioning in order to assure accountability. (Title 22 CCR § 87205 (b)) Shall have the responsibility and authority Administrator to carry out the policies of the licensee. (Title 22 CCR § 87405 (b)) MEDICAL DIRECTOR §483.75(i) Medical Director (1) The facility must designate a physician to serve as medical director. (2) The medical director is responsible for – (i) Implementation of resident care policies; and (ii) The coordination of medical care in the facility. Intent Coordinate medical care, provide clinical guidance and oversight regarding resident care policies. Identify, evaluate, and address/resolve medical and clinical concerns and issues that: Affect resident care, medical care or quality of life; or Are related to the provision of services by physicians and other licensed health care practitioners. ADMINISTRATOR INTERVENTION 22 California Code of Regulations Title 22, §72501(a) “The licensee shall be responsible for compliance with licensing requirements and for the organization, management, operation and control of the licensed facility. The delegation of any authority by a licensee shall not diminish the responsibilities of such licensee.” Responsibility to Protect Residents Document effortsScott Kiepen / Darryl Ross 4
  5. 5. Difficult Physicians & Issues That Arise QUALITY ASSURANCE PROCESS IS…. IS… Powerful tool designed to balance a plaintiff’s concerns in obtaining access to committee records versus the public’s interest in a high- quality healthcare system. California State Operations Manual - Appendix PP (F520) QA is a management process that is ongoing, multi-level, and facility- wide. QA encompasses all managerial, administrative, clinical, and environmental services, as well as the performance of outside providers and suppliers of care and services. Objectives: Keeping systems functioning satisfactorily and consistently; Preventing deviation from care processes from arising; Discerning issues and concerns with facility systems; and Correcting inappropriate care processes. CONSIDER FORMING COMPLIANT QI COMMITTEE Committee Members should include: • The director of nursing services; • A physician designated by the facility; and • At least 3 other members of the facilitys staff. [42 Code of Federal Regulations § 483.75(o)(1)] Committee must meet at least once a quarter; Committee must identify issues with respect to which quality assessment and assurance activities are necessary; and Committee must develop and implement appropriate plans of action to correct identified quality deficiencies. [42 CFR § 483.75(o)(2) ] FOCUS OF CQI COMMITTEE Area 1: Quality Assessment • Evaluation of a process and/or outcomes. Area 2: Quality Assurance • Organizational structure, processes, and procedures designed to assure that care practices are consistently applied. Area 3: Quality Deficiencies • Potential markers of quality that the facility considers to be in need of investigating. Area 4: Quality Improvement • Ongoing interdisciplinary process that is designed to improve the delivery of services and resident outcomes. California State Operations Manual - Appendix PP (F520)Scott Kiepen / Darryl Ross 5
  6. 6. Difficult Physicians & Issues That Arise STEP 2 – FORM CQI COMMITTEES IDT’s Root Cause Analysis – conduct analysis and summarize findings; Document Trends and identify concerns; Maintain a log; Develop an Action Plan; Submit findings to QA Committee; and Re-visit issues to determine progress. Adherence reduces risk of discovery in civil litigation, demonstrates good faith, and possibly minimize citations (CA Health & Safety Code § 1424.1) GOALS OF CQI’s CQI’ Define terms “quality” and “success”: • Quality can be defined as meeting and/or exceeding expectations • Success can be defined as meeting the needs your residents Adjust thought processes of CQI members: • Most problems are found in processes, not in people • Goal of CQI should be to improve processes, not blame • Brainstorm to identify new strategies Team should have knowledge of the system needing improvement • Staff CQI with discipline specific personnel STEP 3: Prepare Plans Of Correction, Root Cause Analysis & Trending Studies Committee must evaluate root cause, trends, and develop appropriate corrective plans of action. Action plans may include: Development or revision of clinical protocols, policies & procedures; Training for staff concerning changes, including monitoring and feedback; Purchase of / repair equipment and/or improve the physical plant; and Development of standards to evaluate staff performance. Committee may delegate the implementation of action plans to various facility staff and/or outside consultants Root Cause analysis, trending reports and action plans MUST be submitted by CQI to QA CommitteeScott Kiepen / Darryl Ross 6
  7. 7. Difficult Physicians & Issues That Arise SHOULD FACILITY HAVE A PHYSICIAN CREDENTIALING PROGRAM Benefits Enables Facility to Identify Problems With Physicians Before Admitting Residents Insulates Facility from Criticism Of Improper or Negligent Care Provider Creates Grounds to Attempt to Manage Poor Physician Behavior If Properly and Consistently Deployed, Insulates Facility from Threat of Civil Action by Physician Reduction of Risk Perceived by Insurance Carrier SHOULD FACILITY HAVE A PHYSICIAN CREDENTIALING PROGRAM- (CONT.) PROGRAM- Burdens Ideally Should be Program Involving Policies and Procedures Consistently Deployed Burdens on Administration to Deploy Unclear About Powers to Force Resident to Terminate Relationship With Physician of Choice Could Create Problems of Physician Coverage and Related Issues ELEMENTS OF A PROPER CREDENTIALING PROGRAM Letter to Physicians Explaining Goals and Essentials of Credentialing Program Authorization and Release of Information From Physician to Search Process for Implementing Background Checks--Third Party Vendor Process and Procedure for Reviewing Information and Granting Privileges Process for Review and Hearing Appeals From Denied or Terminated PhysiciansScott Kiepen / Darryl Ross 7
  8. 8. Difficult Physicians & Issues That Arise LETTER TO PHYSICIANS Physicians Might Be Resistive So Need To Explain Goals of Program Explain Data Bases From Which Information Will Be Obtained Explain Need to Sign Authorization and Release of Information Request Copies of licenses, certifications and proof of insurance AUTHORIZATION AND RELEASE Physician Must Sign Identify Specific Data Bases To Be Searched Obtain All Personal Identification Information Get Physician to Respond to Questions Ever been or presently excluded from any state or federal program? Ever been subject to, officer, director, shareholder or Medical Director for Provider subject to Corporate Integrity Agreement Ever been subject to discipline or faced license revocation from any medical board? Ever been convicted of a felony or named as a defendant in a criminal proceeding? PROCESS FOR IMPLEMENTING BACKGROUND CHECKS Facility Procedures for Checking Data Bases Third Party Vendor Which Data Bases How Frequently ReviewedScott Kiepen / Darryl Ross 8
  9. 9. Difficult Physicians & Issues That Arise PHYSICIAN DISCIPLINARY PROCESS Committee to Evaluate Information Defined Policy and Procedures for Granting Privileges Defined Policy and Procedures for Appeal Process INVESTIGATIONS Legal obligation to investigate allegations of neglect or abuse under 42 CFR 483.13 (c)(3) Legal obligation to report under 42 CFR 483.13 (c)(2) Evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. Facility must attempt to identify cause of injury Document investigation Maintain its records in a way that will enable third parties to review what the facility has done or not done to investigate the alleged abuse ATTORNEY INVESIGATIONS Investigations are privileged Preserve testimony of witnesses Collect and safeguard documents Assist in dealing with media Provide reassurance to staff Identify areas where in-servicing would be beneficial Evaluate liability exposureScott Kiepen / Darryl Ross 9
  10. 10. Difficult Physicians & Issues That Arise REPORTING Physicians can pose problems by not responding to facility calls and inquiries, taking liberties with notes and statements in the residents medical records. CA Business and Professions Code 2262 – altering or modifying records with fraudulent intent constitutes unprofessional conduct Physician documentations should be dispassionate and factual No personal or legal conclusions without doing a full investigation should be noted No late entries Line through erroneous entry with note in next logical location SUMMARY Develop Own System To Fit Facility Personal Needs No One System Fits All Facilities System Can Be Tailored to Fit Facility Profile Progressive system designed to address and remediate issue with minimal conflict and disruption of facility responsibility and resident rights. QUESTIONS? Scott Kiepen Darryl Ross Hooper, Lundy & Bookman Wroten & Associates 575 Market Street, Suite 2300 20 Pacifica, Suite 1100 San Francisco, CA 94105 Irvine, CA 92618 (415) 875-8510 (949) 788-1790Scott Kiepen / Darryl Ross 10