HEALTH CARE LAW
Navigating the Credentials Maze
By Lee S. Goldsmith
The author, an attorney and medical doctor, is a partner with Goldsmith Harz in Englewood Cliffs.
When one considers whether or not an individual is "credentialed" one often considers the background and training of a physician and not those who are members of any other profession. Perhaps we have this orientation because the medical profession discusses the issue so openly. Or it may be that those of us in other professions do not care about the credentials of our own members.
The contrast between law and medicine is obvious. An individual graduates law school, passes the bar examination and is admitted to practice. That individual need not get any in-service training, need not perform an internship and can open an office for the practice of law upon being admitted to the bar. That attorney legally can perform the tasks associated with any field of law, either competently or incompetently. The Supreme Court may be concerned about our ethics, whether we have insurance and the manner in which we manage clients' funds, but there is no supervision of how we are practicing our profession from the time of our admission to the time of our death. Therefore, as long as we can earn a living, we can keep on practicing.
As a member of the Bar, there is nothing that would preclude me from writing a will or doing a closing even though I've never done either in 30 years. However, while my license to practice medicine includes surgery, there is no one who would allow to me pick up a scalpel.
The physician is constantly going through a credentialing and re-credentialing process from medical school through retirement. The process is meant to prevent known and potential problems. As it is repetitive, the individual physician's ability to practice, the income that can be earned from that practice and the scope of the work that can be performed are scrutinized constantly. Therefore, knowledge of the credentialing process is valuable to every attorney who routinely deals with physicians.
Licensure of physicians came into being in the latter part of the 19th century. At that time there were many medical schools turning out physicians. Many of these schools were "diploma mills" producing unqualified individuals who, because of need, were capable of gaining the confidence of individuals.
The notion of credentialing grew out of a desire to prevent unlicensed and untrained individuals from practicing medicine. It has evolved to prevent inadequate physicians from performing tasks for which they are not capable and to prevent incompetent physicians from continuing the practice of medicine in a state in spite of licensure revocations in another state.
Credentialing begins in medical school and the process is one of record production and reproduction. The medical student must produce identification pictures, copies of college diplomas and information regarding medical school attendance before taking the first part of the boards at the end of the second year of medical school.
To take the second and third parts of the boards a diploma from medical school must be copied and certified and pictures added. Application for a state license will require inclusion of all of the above materials with letters from physicians and professors who have worked with the student. Completion of the three parts of the boards will enable the physician to become licensed.
New Jersey's Rules
The process in New Jersey is managed by the State Board of Medical Examiners. The board has the authority to request the presence of any physician applying for a license at a hearing. Such hearings focus in on legitimate concerns raised in the application such as malpractice experience, gaps in professional activities, termination or leaving training programs before their completion and problems while on the medical staff of a hospital.
Once the physician is licensed in a given state that physician will apply for privileges to the staff of a hospital. In that process the physician will fill out an application requesting information about past training and malpractice experience. In addition, copies of the documents indicating graduation from college and medical school will have to be added, as well as certification that an approved residency training program was completed. Letters of recommendation from professors and medical school faculty will be required as will material from physicians in the training program. Gaps, when there is no information about training or professional activities, are questioned and reasons relating thereto must be documented with affidavits.
When a physician first applies to a hospital medical staff the application and materials are submitted to a credentials committee. The committee reviews the documents along with a recommendation from the chairman of the department within the hospital that the physician wishes to join. This recommendation will delineate the privileges that the physician will have in the hospital; that is, what that physician will be permitted to do while on the hospital staff.
As an example, a physician trained as an internist will receive privileges in the department of medicine and will not be allowed to perform surgery or read X-rays in the department of radiology. A physician making an application to the department of surgery will have privileges that delineate the type of surgery that can be performed. As innovative changes occur, such as the training in laparoscopy additional certifications will have to be added for that physician to be permitted to perform that type of surgery.
Hospital credentials are reviewed on a biannual basis. In that review the process will be repeated, though in a less formal manner. Since the physician is an active member of the medical staff, the chairman of the department will have had an opportunity to observe the quality of the work performed. The application form will be completed with some changes requested and submitted to the credentials committee and with the approval of the department chairperson passed to the executive committee of the medical staff and ultimately approved by the board of directors of the hospital. If there has been a problem, the re-application will be more carefully scrutinized Revision in privileges may well occur.
Hospitals vs. HMOs
The credentialing process in the hospital is coordinated and dictated by the Joint Commission of Accreditation of Hospitals, which in turn has established guidelines for the rules, regulations and bylaws of the medical staff. The staff manual can be found in each and every hospital.
The physician today will also have to apply for and be credentialed by each and every health maintenance organization for which membership is requested. The standards for HMO credentialing are set by the National Committee for Quality Assurance.
HMOs credential physicians annually. The information requested will require a clear statement regarding any history of license suspensions or revocations, illegal drug use, felony convictions, limitation of privileges or disciplinary actions and an attestation as to the correctness/completeness of the application. The final attestation allows for an immediate suspension of privileges if it is determined that the information on the application is not correct and eliminates the appeals process under most circumstances.
One of the marked differences in the effect of the credentialing process between hospitals and HMOs is potential liability. Under the case of Corleto v. Shore Memorial Hospital, 138 N.J. Super. 302 (Law Div. 1975), a hospital staff and board of trustees could be liable if they allow a physician on staff to perform procedures for which they are not qualified. On the other hand, an HMO will not be liable under the protection afforded by ERISA.
When initial credentialing is done the credentialing body in a hospital or HMO must verify the fact that the individual is licensed. In fact, the process usually entails checking if the individual is board-certified and often speaking with one or more than one of the individuals providing personal information or recommendations. Every credentialing body must access the information in the National Practitioner Data Bank when initially credentialing or re-credentialing a practitioner. The National Practitioner Data Bank is a national repository of information relating to all health practitioners. The data bank includes information regarding licensure problems, disciplinary actions and malpractice settlement or adverse history. The last step is an attempt to prevent the practitioner from going from one state to another when a license is revoked or suspended.
The fact that data must be forwarded to the National Practitioner Data Bank affects physicians' decisions. A physician might decide not to settle a malpractice case. If the matter is settled, the data will be sent. The data also will be sent if the matter is not settled and the physician loses. But if the case goes to trial and the doctor wins, there will be no reporting.
Copyright 1997 New Jersey Law Journal. Reprinted with permission.
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