• Illinois Hospitals Must Satisfy New Requirements on Peer Review and Summary Suspension of Clinical Privileges
  • August 28, 2009
  • Law Firm: Hinshaw & Culbertson LLP - Rockford Office
  • As of August 14, 2009, an Illinois hospital that seeks to summarily suspend a physician’s clinical privileges because the physician’s continued practice would constitute an immediate danger to the public, must meet new requirements regarding documentation of the reasons for and prompt review of the summary suspension. Also, an Illinois hospital that uses external peer review for credentialing, privileging or disciplinary action must satisfy new documentation requirements.

    Summary Suspension

    In general, an Illinois hospital must provide to current members of the medical staff, upon request, a fair hearing concerning any adverse decision with respect to medical staff and clinical privilege determinations. However, a hospital or its medical staff may summarily suspend a person’s medical staff membership or clinical privileges without a prior hearing if the medical staff member’s continued practice would constitute an immediate danger to the public. As of August 14, 2009, hospitals must meet a number of new procedural requirements regarding the imposition of such summary suspensions.

    • Documentation of Immediate Danger. A hospital cannot implement a summary suspension unless it has available at the time the summary suspension is put into effect, “actual documentation or other reliable information” that an immediate danger exists. Hospitals are advised to develop written standards on how to document an immediate danger and to determine the reliability of information, as decisions to summarily suspend clinical privileges must be made quickly, on a case by case basis, and are often based on witness testimony rather than written documents.
    • Fair Hearing Requirements. A fair hearing on the summary suspension, which was formerly required under all circumstances, is not required if the summary suspension is based on the fact that the medical staff member’s license to practice medicine was revoked or suspended by the Illinois Department of Financial and Professional Regulation. This amendment will probably not affect most hospitals’ procedures for summary suspension due to immediate danger to the public. Many hospitals’ medical staff bylaws include separate procedures for summary suspension due to administrative reasons, such as, among others, loss of a medical license. In addition, the opportunity for a fair hearing is required by law for any administrative suspension that restricts the treatment or admission of patients. Therefore, medical staff members at many hospitals will likely continue to have fair hearing rights for suspension due to loss of license, despite this amendment to the law.
    • Review by Medical Executive Committee. Upon request by the suspended medical staff member, the Medical Executive Committee or a comparable medical staff committee must meet “as soon as is reasonably possible” to review the summary suspension and recommend whether the suspension should be “affirmed, lifted, expunged or modified.” The hospital’s governing board, or a committee of the board, must consider “on an expedited basis” the Medical Executive Committee’s recommendation to lift, expunge or modify the summary suspension. A recommendation to affirm the summary suspension need not be considered on an expedited basis. This aspect of the amendment to the law raises two issues:

    a.  Separate Meeting of Medical Executive Committee and Hearing by Hearing Panel. The law requires the Medical Executive Committee to “meet,” upon the suspended medical staff member’s request, to discuss the summary suspension; it does not require the Medical Executive Committee to conduct a hearing. However, the law continues to require a fair hearing on the summary suspension within 15 days of the imposition of the suspension. Thus, if the suspended medical staff member asks the Medical Executive Committee to review the suspension, and a separate hearing panel conducts a hearing during roughly the same time period, it is possible that the two bodies could offer different recommendations to the governing board. Also, it would seem to be a waste of time and resources for the Medical Executive Committee to meet and consider the summary suspension without the benefit of the hearing panel’s findings. Hospitals are advised to structure the Medical Executive Committee review to avoid this result. For example, the Medical Executive Committee could conduct the required hearing. The Medical Executive Committee’s conduct of the hearing must comply with the Health Care Quality Improvement Act (HCQIA) to ensure immunity from civil damages. Alternatively, the Medical Executive Committee could wait to meet until after receiving a recommendation from the hearing panel. However, it is unclear whether this would satisfy the requirement that the Medical Executive Committee meet “as soon as is reasonably possible.” The hearing must commence within 15 days, but no such specific time limit is imposed on the Medical Executive Committee meeting.

    b.  “Expungement” of Summary Suspension. The law permits the Medical Executive Committee to recommend that the summary suspension be “expunged.” Generally an expungement is the removal of a sanction from a person’s record. Hospitals are advised to carefully consider whether to permit an expungement of the summary suspension from the physician’s credentials file. If the summary suspension lasts for longer than 30 days and is a “professional review action” under HCQIA, it may be reportable to the National Practitioner Data Bank, regardless of whether it is “expunged.” Also, a response by the hospital or physician to a credentialing inquiry from a third party health care entity or health plan to the effect that the physician was not summarily suspended, due to the fact that the suspension was “expunged” from the physician’s credentials file, may expose the hospital or physician to liability for providing a misleading response to such an inquiry.

    Peer Review

    The amended Hospital Licensing Act includes new documentation requirements related to the peer review process. All peer review activities, including the reliance on external peer review, must be conducted in accordance with the medical staff bylaws. Any report by an external reviewer must be in writing and made a part of the internal review process. In addition, it must be made available to the peer review committee and the medical staff member under review. The hospital’s governing board must consider any written response to the external peer review report, which is submitted by the medical staff peer review committee or the medical staff member, under review within 30 days of the date of the external peer review report. This amendment recognizes the important role that external review can play, especially in sensitive or particularly challenging cases. If an Illinois hospital uses external peer reviewers, it must amend relevant documents to comply with the new requirements, which were effective immediately upon signature by the Governor on August 14, 2009.