Twelve Steps Related to the Loss of Clinical Credentials
Virtually all health care providers, from doctors, to physician’s assistants, to dentists, to nurses, to psychologists, to social workers all require licenses from the state in which they practice. In the military, to qualify for credentials to practice in a military treatment facility (MTF), the provider must be licensed in one or more states. The quality assurance and licensing program in the military is governed by Department of Defense Manual 6025.13 (October 29, 2013). As with most DoD policies, the individual services are responsible for overseeing and the implementation and compliance of the health care providers quality assurance policy. In the Army, Army Regulation 40-68, Clinical Quality Management, is the controlling regulation. In the Air Force, AFI 44-119, Medical Quality Operations, governs. In the Navy, BUMEDINST 6010.31 covers adverse actions for privileged health care providers. Regardless of the service, the quality assurance program is designed to ensure competent providers administer safe and effective care to their patients.
Although governed by regulation, credentials boards widely vary in the way they conduct the actual board even within services. For example, in AR 40-68, paragraph 10-8(a)(3) provides that “for procedural guidance on how to conduct the hearing, AR 15-6 may be consulted, but its provisions are not mandatory.” In the Hearing Boards in which we have participated, they are run by the president of the board with the advice of the legal advisor, but are widely divergent on what rules apply. The baseline for conducting the credentials board is Enclosure 7 to DoDM 6025.13, and the individual service regulation/instruction.
This is a three-part blog post that will walk the provider and practitioner through the credentials suspension or revocation process. We have divided the process into 12-steps. This post will discuss steps one (1) through four (4) including the incident, the investigation, the credential committee review and the peer review process. The second post will look at steps five (5) through eight (8) including the MTF commander’s action, the Hearing Board, the Final Review, and the Request for Reconsideration. The final post will address steps nine (9) through twelve (12) covering the Appeals Board, action by the appellate authority (The Surgeon General), separation from federal service and notification to state licensing authorities.
Our goal is to provide familiarization to this process to which most judge advocates have not been exposed, and for which providers have everything riding.
Step One – An Incident Generating Potential Action Against Clinical Privileges
Actions may be taken against a provider’s privileges when her performance or patient care is suspected or deemed “not to be in the best interest of patient care.” The actions could range from abeyance, to suspension, to revocation of clinical privileges. AR 40-63, Paragraph 10-2(a). The revocation of clinical privileges can be initiated when there is “reasonable cause” to doubt the provider’s “competence to practice or for any other cause affecting the safety of patients or others.” AR 40-63, Paragraph 10-2(b). This includes a single incident of gross negligence, a pattern of inappropriate prescribing, a pattern of substandard care, an act of incompetence or negligence causing death or serious bodily injury, abuse of legal or illegal drugs or diagnosis of alcohol dependence, documented impairment due to alcohol or drugs and treatment failure, or significant unprofessional misconduct.
Not unsurprisingly, a hospital commander could “shoe horn” virtually any alleged misconduct into the category of “significant unprofessional misconduct.” The Army Regulation defines “unprofessional conduct” as “conduct that is beyond, or outside of, professional requirements for rendering beneficiary care and which negatively affects, or has the potential to negatively affect, the professional relationship or contract with the beneficiary.” What is “negatively affects?” From whose perspective?” However, “unprofessional conduct” is not the basis for the action against credentials – significant unprofessional MIS-conduct is. Not surprisingly, “significant unprofessional MIS-conduct” is undefined. This exposes a provider to an attack on her credentials based on undefined and unclear standards, allowing for personal animosity and dislikes to cloud this procedure, especially when the actions are based solely on “significant unprofessional misconduct.”
Step Two – The Quality Assurance Investigation
Upon learning that a clinical adverse action may be appropriate, a Quality Assurance (QA) Investigation is conducted. The MTF Commander or her designee will appoint an impartial Investigating Officer to conduct the QA Investigation. In the Army, the provider must be notified in writing within 14 calendar days that her clinical privileges have been placed in abeyance, and if the abeyance is not resolved within 30 days, it becomes a summary suspension. The QA Investigation Investigating Officer (IO) may interview the provider, but an interview is not required, and the provider does not have a right to counsel during the QA Investigation. Further, additional simultaneous investigations such as Article 32 Investigations (now called preliminary hearings) and AR 15-6 Investigations may be appropriate. The QA IO will likely testify at any subsequent hearing when the findings are recommendations are reviewed. AR 40-68, Paragraph 10-6(d); DoDM 6025.15, Enclosure 7, Paragraph 2(a)-(c).
Step Three – The Credentials Committee Review and Recommendation
Upon conclusion of the QA Investigation, the findings are presented to the MTF Credentials Committee which will review the investigation and make recommendations to the MTF Commander. There must be one member of the MTF Credentials Committee with the same clinical profession as the provider under review. The IO will generally testify at the MTF Credential Committee review. The provider does not have the right to be present for the MTF Credentials Committee review of the QA Investigation, but can provide materials for the committee to review. The MTF Credentials Committee will recommend one of a list of recommendations to the MTF Commander: that no further action be taken and the provider is reinstated, that a formal peer review be conducted, or other action, such as administrative, personnel, civil or criminal, be taken. AR 40-68, Paragraph 10-6(e). Although not mentioned in the Army Regulation, the DoD Manual also provides that the Credentials Committee review can recommend that the provider undergo a period of Monitoring and Evaluation (M&E). A documented plan of M&E establishing clear expectations and measures of success is developed, and the provider is routinely reviewed throughout the period of M&E. This M&E is not considered an adverse action nor reportable to any regulatory entities. DoDM 6025.13, Enclosure 7, Paragraph 2(d)(2). This difference between Army and DoD guidance is one of the many reasons why the practitioner must consult both the DoD Manual and the service regulation when representing providers facing loss of clinical credentials.
Step Four – The Peer Review Panel
If recommended by the Credentials Committee and approved by the MTF Commander, a Peer Review Panel is convened. The peer review process is intended to review the provider’s performance, conduct, or condition to determine the extent of the problem(s) and to make recommendations through the credentials committee to the MTF commander. The provider is notified similar to how she was notified of the abeyance of privileges. Although encouraged to consult with counsel, neither the provider or her counsel has the right to be present at the Peer Review Panel proceeding. It is important that the provider take the opportunity to meet with counsel about presenting materials tot he Peer Review Panel. In the Army, the provider will be given the opportunity to present written materials and make a verbal statement to the Peer Review Panel. The members of the Peer Review Panel should have similar backgrounds and be in the same discipline as the provider under review. After reviewing the materials, the Peer Review Panel will make one of the following recommendations to the MTF Commander: 1) Reinstatement, 2) Suspension, 3) Restriction of Privileges, 4) Reduction of Privileges, 5) Revocation, and 6) Denial. (AR 40-68, paragraph (f)(5)). Again, although not provided for in the Army Regulation, the DoD Manual provides that the Peer Review Panel can also recommend reinstatement of privileges with M&E, which is a well-defined, time-limited, well-documented plan of intensified peer review to confirm the provider possesses the skill, knowledge, and ability to render safe and effective healthcare. Enclosure 7, Paragraph 2(h)(2).
Because of the differences between the DoD guidance, including some timelines, it can be tricky to navigate the medical provider’s credentials review process. Next week, we will address Step Five – Action by the MTF Commander, Step Six – The Hearing Board, Step Seven – The MTF Commander’s Final Decision, and Step Eight – The Appeal in the Form of Request for Reconsideration.
Written by Will M. Helixon, will@helixongroup.com
Background of The Law Office of Will M. Helixon
The Law Office of Will M. Helixon was established in 2016, and is headquartered in Kansas City, Missouri. It was established to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. The firm’s members have handled multiple complex and high-profile military cases in their over 108 years of combined military law experience. The firm now handles most military matters, including medical issues involving the MEB/PEB process, business and securities law, trusts and estate planning, and family law including juvenile matters, adoption and guardianship issues.
In addition to being licensed in all military courts, the firm’s members and of counsel are licensed in Kansas, Missouri, Texas, Oklahoma, New York, Florida, California, Massachusetts, Arkansas, Maryland and the District of Columbia.
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