• State Licensing Board & Commission Defense
• Medicare and Medicaid Reimbursement
• Alcohol & Drug Abuse
• Peer Review Proceedings
• Mediation
• Medicaid Fraud
• National Practitioner Data Bank Disputes
• Federal Health Care Provider Exclusion
• Professional Risk Avoidance

      The need for self-regulation has been promoted among health care professionals for decades. Various efforts have been undertaken with inconsistent results. Currently, several venues exist for peer review among providers, and these primarily involve physicians and nurses within healthcare facilities, occurring primarily in hospital facilities.

 

    The Joint Commission (www.jointcommission.org) now requires accredited members to meet certain minimum standards as a part of accreditation. Federal law, the Health Care Quality Improvement Act of 1996, mandated that if an organization is a “health care entity,” it must undertake  peer review, and in doing so, must meet certain minimum standards including but not limited to, adequate notice of the charges, the opportunity for a hearing before a panel or hearing officer, and the opportunity to present and cross-examine witnesses. However, many times Bylaws are crafted to ensure the power to take action remains with the reviewing committee, Medical Executive Committee or governing Board of the hospital. In these cases, “creating a record” may help provide the best outcome for the practitioner as very often the ramifications of such actions do not end with the hospital process.   

 

    The National Practitioner Data Bank (“NPDB”) was established as a central repository for the reporting of certain peer review and disciplinary actions by “healthcare entities”. The NPDB affords access to those reports to any entity qualifying as a “healthcare entity”. Certain peer review actions or investigations are also mandatorily reportable to the NPDB and if a report is made, it is simultaneously made to the subject’s licensing Board, thus triggering an automatic investigation of the matter by a state licensing Board.

 

      In addition to hospital-based peer review and state licensure board investigations, there is now peer review or quality assurance activity by Medicare, Medicaid, managed care entities, group practices and professional practice organizations. These reviews may now include assessment not only of standard of care issues, but behavioral issues, and financial recoupment.

 

    Peer review is a challenging and often frustrating process for professionals undergoing such proceedings. It has historically been plagued by procedurally unfair bylaw provisions, lack of reasonable and fair process, and medical politics. Case law is usually in favor of protecting the process. However, a professional who is involved in a peer review investigation or proceeding is well served with knowledgeable legal counsel to provide the best legal and factual defenses. In “sham peer review”, the preservation of legal objections which might afford further legal relief is essential.  

 

    The latest peer review offensive tool is behavioral control under the label “Disruptive Physician” which, in the typical case, is broadly defined and subjectively applied. Unfortunately, this tool is sometimes used against physicians or nurses who are openly critical of hospital procedures, lack of needed resources or who are critical towards other hospital staff.

 

      Attorneys at Sharp & Cobos, L.L.P., have substantial experience with peer review in facilities, professional associations, managed care entities, Medicare, and Medicaid. We have also prepared “physician friendly” Medical Staff Bylaws, and have served as independent hearing officers in hospital peer review. Like our clients, we are committed to achieving the goal of quality health care. We are also committed to a fair and reasonable peer review process, enacted with the view to preserve the professional’s career and avoid subjectively applied standards and harsh punitive action. We believe that the goal of peer review is to correct and to improve health care, not to punish, but only after a fair and full opportunity to determine the facts. We practice in this area because its challenges are many and the imbalance of power of the reviewing entities can be overwhelming to a practitioner. We also understand that there is significant stress and cost to the practitioner under review. We are committed to the fullest of legal and factual defenses available to the practitioner.