Clinical Privileges, Fair Hearings, and Peer Review

Peer review hearings, whether those held by medical staffs of hospitals or by peer review organizations that contract to review Medicare claims and complaints are often referred to as “fair hearings.” These include the medical review hearings held by hospital medical staffs to resolve issues involved with a physician’s clinical privileges and medical staff membership. For a list “maxims” for medical staff peer review hearings, see below, or click here.

The term “fair hearing is also used by state Medicaid Programs to refer to the formal administrative hearing that a Medicaid beneficiary or other beneficiary of an entitlement program must be provided before he or she has those benefits changed, reduced, or terminated. These are usually in response to actions initiated by the state Agency for Health Care Administration (AHCA), the Department of Children and Families (DCF), the Agency for Persons with Disabilities (APD), the Department of Health (DOH) or the Department of Elder Affairs (DOEA). The Health Law Firm has successfully represented a number of Medicaid beneficiaries in such proceedings. For a list of practical tips for preparing for “fair hearings” involving Medicaid beneficiaries, click here.

Often, such hearings do not appear to be fair, especially if the subject (or respondent) in such a hearing is attempting to represent himself. This is not advisable. One must know the procedural rules that apply to such proceedings as well as the legal cases that have interpreted or voided such rules. One must also have experience in using these for the benefit of his or her client(s). A lay person will often find himself in greatly over his or her head in representing himself or his child or kin.

The attorneys of The Health Law Firm have experience in most, if not all, types of “fair hearings” involving health care issues and health care providers.

Indest’s Maxims for Hospital Peer Review Hearings

1. The peer review process is different in every hospital.
2. The hospital’s resources are virtually unlimited.
3. You need legal representation from the time of the first rumor.
4. You must be represented by an experienced, knowledgeable health care attorney during the peer review process. The hospital will be.
5. The “nonconformist” or “trouble maker” will be forced into a hearing situation. The guy everyone likes won’t be.
6. If hospital administration (including nursing staff) is out to get you, you will be gotten.
7. You will probably be offered an opportunity to resign prior to the commencement of the investigation . . .
8. But you will foolishly turn down the opportunity to resign.
9. There are many options and alternatives available early in the process, but only an experienced health care attorney will know them.
10. A “fair hearing” is not fair.
11. It may not matter what the peer review or fair hearing committee recommends; but if it is favorable to you, it should help immensely.
12. Those who judge you are not your peers.
13. The only rights you have are those in your medical staff bylaws (unless you are at a “public hospital” or in California)
14. The consequences to you of an adverse outcome will be lifelong and career-altering.
15. Once a peer review proceeding is commenced, it’s not just going to go away, and none of your friends on the Executive Committee or Board of Trustees is going to make it go away.
16. Once a peer review proceeding is commenced against you, you will be in the most important fight of your career and possibly your life.
17. You have no power, no control and no leverage.
18. You are going to have to spend lots of money to properly defend yourself and you will not get it back if you win.
19. If you think you will be successful in suing in court to have an incorrect result overturned, you are probably wrong.
20. Court litigation can give you the leverage you need to obtain a favorable outcome on the peer review proceeding.

Indest’s Recommendations for the Subject of a Hospital Peer Review Hearing

1. You must ensure that your medical staff bylaws contain true “due process” rights for accused physicians.
2. You should attempt to have state legislation passed that requires all hospitals to afford physicians certain due process rights in peer review proceeding similar to what California has done.
3. The Medical Staff should never allow hospital administration (or the hospital parent corporation) to force them to adopt medical staff bylaws changes which eliminate or limit the hearing rights or due process rights of a physician who may be the subject of an adverse decision.
4. The peer review committee (fair hearing committee) should have its own independent legal advisor in all hearings. This must be someone other than from the law firm which represents the hospital.
5. You must treat the peer review process like you would a civil trial against you for medical malpractice.
6. If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you.
7. Also, immediately retain a litigation attorney who has experience in this type of civil litigation. File suit immediately if the matter is not proceeding fairly and in accordance with medical staff bylaws and state laws.
8. If your hearing procedures/peer review procedures are not in your medical staff bylaws, make sure that both the medical staff bylaws and the hearing procedures state that the hearing procedures have the same force and effect as the medical staff bylaws.

Practical Tips for Fair Hearings Involving Medicaid Beneficiaries

1. Treat the case like you would a civil trial in Circuit Court.
2. Prepare and file a “List of Issues.”
   1. Update it as your discovery progresses or issues are added/eliminated
   2. Include a request for attorney’s fees and costs; specify the statutes or cases pursuant to which you are requesting these.
3. Coordinate ahead of time and visit the agency’s local office for the purpose of reviewing the official agency file on your client. Get copies of relevant documents at that time. Find out what you can about the case coordinator, the file and anyone else involved while you are there.
4. Talk to agency officials, case worker, etc., about the case any time you get the chance.
5. Remember that the Florida Administrative Procedures Act, Chapter 120, Florida Statutes, applies to all hearings held by state agencies pursuant to Section 120.57(1), Florida Statutes. These are such hearings and Chapter 120 applies to them. Review, in detail Sections 120.569 and 120.57, Florida Statutes.
6. Remember also that Chapter 28-106, Florida Administrative Code (F.A.C.) also applies to such hearings (except for those few rules for which the agency may have adopted certain different rules). These are your rules of procedure. Know them!
7. Remember that many of the florida Rules of Civil Procedure (Fla.R.C.P.) apply (Rule 28-106.206, F.A.C.). Consider serving discovery, especially requests for admissions, on the agency or department.
8. At the earliest possible time, get updated physicians’ reports, addressing relevant issues. Have them sent in to the agency with a copy to the Medicaid beneficiary.
9. File requests for “official recognition” (the same as judicial notice) to request the hearing officer to accept as fact:
   1. Any facts that are not subject to dispute;
   2. Statutes and regulations that are favorable to your position; and
   3. Other cases that are favorable to your position.
   4. Use these to educate the hearing officer and to make sure that
      basic facts required to prove the case are in the record as well as legal authority supporting your position. For those statutes, regulations, and cases that support you, underline the sections that support your position.
10. Obtain administrative subpoenas from the hearing officer and subpoena any witnesses you need for the hearing.
11. Get an expert or experts on the key issues in the case, including attorney’s fees.
12. Bring the Medicaid beneficiary to the hearing – get him/her to testify.
13. Bring any other family members who are familiar with any of the facts to the hearing and get them to testify.
14. Prepare well in advance to have one or more of the Medicaid beneficiary’s treating physicians testify, by telephone, if necessary. Be sure to serve a subpoena on each one.
    1. Call and coordinate the date and time for his/her testimony with the physician; then write a follow up letter to confirm.
    2. Serve a subpoena on the physician and file the return (or a certificate of service) in the record.
    3. Honor the doctor’s time.
15. Take the video depositions of any witnesses who will not be available to testify at the hearing. Play these in the hearing.
16. In other words, get as many witnesses as you can. Do not expect to rely solely on the agency file and physician’s reports.
17. Remember, in many cases the date that a notice was given by the agency or received by the beneficiary is crucial. Obtain and introduce as exhibits the envelopes in which notices by the agency were mailed (showing the postmark or meter date) and for tracked mail (certified mail, registered mail, express mail) or notices sent by couriers, go onto the appropriate website and print out the tracking information to show when it was sent and received. Introduce this as an exhibit at the hearing.
18. Be sure to obtain a court reporter and have the hearing(s) reported.
19. Be prepared to appeal. Make a record for the appeal (e.g., object to objectionable material and testimony; move to exclude it or have it stricken, use motion practice, etc.).
20. For the most part, the Florida Rules of Evidence apply. But review and be familiar with Rule 28-106.213, Florida Administrative Code.
21. Remember, as a general rule, hearsay is not admissible in an administrative hearing; except, hearsay may be admitted for the limited purpose of helping corroborate a fact upon which there has previously been admissible evidence introduced. (Rule 28-106.213(3), F.A.C.). As a general rule, always object to hearsay evidence.
22. Get copies of all prior agency manuals, forms, publications, guidelines, brochures, pamphlets, books, training materials, etc. that have been sent to the beneficiary or his/her family, from workshops or educational sessions, off of internet, etc.
    1. Excerpt the relevant portions of them.
    2. Underline supportive parts.
    3. Do formal “Notices of Filing” and file ahead of time.
    4. Introduce as exhibits at hearing.
23. Bring copies of the Florida Rules of Civil Procedure, Florida Rules of Evidence, and any cases explaining them that are helpful to your case. The hearing officer may not be an attorney and may not be aware of these.
24. At the hearing, introduce evidence on attorney’s fees and the basis for your request for attorney’s fees at the hearing. Be sure to include failure to make admissions that are later proven at the hearing (Rule 1.380, Fla.R.C.P.) as a ground for this, if applicable.
25. You may request that the hearing officer make a finding regarding entitlement to attorney’s fees and reserve jurisdiction to determine the amount of attorney’s fees at a later date. (Note: this is an alternate position; se below.)
26. If you are successful and your hearing officer was not an administrative law judge, file a Petition for Attorney’s Fees and Costs with the agency and request that it be forwarded to the Division of Administrative Hearings (DOAH) for the appointment of an administrative law judge (ALJ) to hear the petition.
27. If you lose, and you may appeal to a different District Court of Appeal, consider its prior rulings and compare them to those of the First District Court of Appeal. Decide what Court of Appeal would be more favorable inclined to your client’s position and select the one you feel would be more likely to rule in his/her favor.