Physicians can pose problems for nursing facilities like failing to respond to calls or having inaccurate medical records. This document discusses issues that arise with difficult physicians and strategies facilities can take. Facilities have rights but must also protect residents' rights. They can develop quality assurance programs and physician credentialing to help manage physician issues. Investigations may be needed and facilities should focus on resident care and resolving conflicts constructively.

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
relationship
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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 home's 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 patient's
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.
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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 Body
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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 efforts
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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 facility's 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)
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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 Committee
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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 Physicians
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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 Reviewed
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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 exposure
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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) 788-1790
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