EL-ATTAR v. HOLLYWOOD PRESBYTERIAN MEDICAL CENTERRespondent’s Request for Judicial NoticeCal.February 27, 2012COPY SUPREME COURT 5196830 PILED FEB 2 7 2017 Frederick kK. Ohirich Clerk . IN THE Deputy SUPREME COURT OF CALIFORNIA OSAMAH EL-ATTAR, Plaintiff and Appellant, Uz. HOLLYWOOD PRESBYTERIAN MEDICAL CENTER, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FOUR CASE No. B209056 MOTION FOR JUDICIAL NOTICE; DECLARATION OF ANNA M. SUDA; [PROPOSED] ORDER GRANTING JUDICIAL NOTICE HORVITZ & LEVY LLP CHRISTENSEN & AUER DAVID S. ETTINGER (BAR No. 93800) JAY D. CHRISTENSEN(Bar No.65446) H. THOMAS WATSON(Bar No. 160277) ANNA M. SUDA (Bar No. 199378) 15760 VENTURA BOULEVARD, 18TH FLOOR 225 SOUTH LAKE AVENUE, SUITE 860 ENCINO, CALIFORNIA 91436-3000 PASADENA, CALIFORNIA 91101 (818) 995-0800 « FAX: (818) 995-3157 (626) 568-2900 * FAX: (626) 568-1566 dettinger@horvitzlevy.com jdc@ca-healthlaw.com htwatson@horvitzlevy.com ams@ca-healthlaw.com ATTORNEYS FOR DEFENDANT AND RESPONDENT, HOLLYWOOD PRESBYTERIAN MEDICAL CENTER TABLE OF CONTENTS Page TABLE OF AUTHORITIES|...eecceccecccesseceeseseceessesessnsneeens ii MOTION FOR JUDICIAL NOTICE 0000... ccccccccceseeeeeeneneees 1 MEMORANDUM OFPOINTS AND AUTHORITIES.........0000000... 3 THIS COURT SHOULD TAKE JUDICIAL NOTICE OF THE 2011 CHA MODEL MEDICAL STAFF BYLAWS BECAUSE THEY ARE NOT REASONABLY SUBJECT TO DISPUTE AND ARE RELEVANT TO THE ISSUE PRESENTED IN THIS CASE.00.0... cccccccccccccessssseessesstssssecerssssesseseecesececeesseseeeeeners 3 A. Reviewing courts have authority and a duty to take JUCIcial NOTICE. ....... eee ee cece teeeeeeeceeseeseceusceseeessueessasseaaaaneesees 3 B. The 2011 CHA Model Medical Staff Bylaws may be judicially noticed because they are not reasonably Subject to dispute. ........cccccccccccccessssssssseceececeeeececesseesssssesseeseeeecs 4 C. This court should take judicial notice of the CHA Model Medical Staff Bylaws because they are relevant to the issue pendingbefore this COULt. ............:.cccccccceeceeesesssssssseseenee D CONCLUSION o.oo eeccccccceececeseeseeeeeseeessaseesseceesseeecnseeenssesereesesueenes 7 DECLARATION OF ANNA M. SUDA... ccceccccceeseeereeesereeens 8 [PROPOSED] ORDER GRANTING JUDICAL NOTICE.............. 9 TABLE OF AUTHORITIES Page(s) Cases Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802.0... ccccccccecsessessessssectessesseseevsssesessesesscevsseseesee 4 Coffin v. Alcoholic Beverage Control Appeals Bd. (2006) 139 Cal.App.4th 471 woeseesececsececcensaeecececeeeeees 5 El-Attar v. Hollywood Presbyterian Medical Center (2011) 198 Cal.App.4th 664 woo.eecececeesccccseeeeeececeeeeuseas 5 Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30 oo.ceeesseeccceceeeeueaaeeeeeeeeeeess 5 Matchett v. Superior Court (1974) 40 Cal.App.3d 628.0...cccscessssscsesssscesceeseseesennnnees 5 Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614 ..ccccccccccssscssssessssssessessessesteseecsstssesvecesseseecesee 4 Statutes Evidence Code § ABD oiccccessesecceesecceesseuevsssscseseceessssssaaaeaesseecaseerecaeaaeaseeseseccess 5 § 452, subd. (Ch)... eeeeeeeecescecceseceseceeeesecenssttesseseecs 1,3, 4,5 § ABB occcccccceececccereceeeuenseceescscsscueuauaeececeeeeeauaussuceaueeetanauaas 1,3 § 459 oicccececeecccccessseeesssssssstseevececeeauaeaueusceveeeessaeaeasseevess 1, 3,5 Rules of Court Cal. Rules of Court PUL! 8.25QA) oo. ccccccccccccccccccesscsvescenssusecccccsevsueccsececcecceseeeeesecesesencescs 1 YUle 8.520(2) .......cccccccccessesessesssetessssssseceeccsssssesssssecessesessrereeeeeeeeeeres 1 rn Miscellaneous California Hospital Association, Model Medical Staff . Bylaws & Rules (2011) (as of Feb. 23, 2012) .o......ee cc eeececeeeeeeneees 4 1 IN THE SUPREME COURT OF CALIFORNIA OSAMAH EL-ATTAR, Plaintiff and Appellant, v. HOLLYWOOD PRESBYTERIAN MEDICAL CENTER, Defendant and Respondent. MOTION FOR JUDICIAL NOTICE Defendant and respondent Hollywood Presbyterian Medical Center (Hospital) moves under Evidence Code sections 452, subdivision (h), 453, and 459, and rules 8.252(a) and 8.520(g) of the California Rules of Court, for this court to take judicial notice of the California Hospital Association (CHA) Model Medical Staff Bylaws 2011, attached as Exhibit A to the declaration of Anna M. Suda supporting this motion. This request for judicial notice is being filed concurrently with the Hospital’s opening brief on the merits. It is supported by the attached declaration of Anna M. Suda, the attached memorandum of points and authorities, andall thefiles, records, and briefs in this case. February 24, 2012 HORVITZ & LEVY LLP DAVID S. ETTINGER H. THOMAS WATSON CHRISTENSEN & AUER JAY D. CHRISTENSEN ANNA M. SUDA H. Thomas Watson Attorneys for Defendant and Respondent HOLLYWOOD PRESBYTERIAN MEDICAL CENTER MEMORANDUMOF POINTS AND AUTHORITIES THIS COURT SHOULD TAKE JUDICIAL NOTICE OF THE 2011 CHA MODEL MEDICAL STAFF BYLAWS BECAUSE THEY ARE NOT REASONABLY SUBJECT TO DISPUTE AND ARE RELEVANT TO THE ISSUE PRESENTEDIN THIS CASE. A. Reviewing courts have authority and a duty to take judicial notice. Evidence Code section 452, subdivision (h), allows courts to take judicial notice of “[flacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Under Evidence Code section 453, such judicial notice is compulsory if “a party requests it and [{] (a) [g]lives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and [] (b) [f]urnishes the court with sufficient information to enableit to take judicial notice of the matter.” Under Evidence Code section 459, appellate courts have the same right, power, and duty to take judicial notice as do thetrial courts. B. The 2011 CHA Model Medical Staff Bylaws may be judicially noticed because they are not reasonably subject to dispute. The CHA Model Medical Staff Bylaws 2011 are the type of documents that courts may judicially notice because they are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) A true and correct copy of the CHA model bylaws has been secured by the Hospital’s counsel and is attached as Exhibit A to the supporting declaration of Anna M. Suda. These model bylaws are also available at the CHA’s official web site: California Hospital Association, Model Medical Staff Bylaws & Rules (2011) (as of Feb. 23, 2012). In Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 819, this court took judicial notice, under Evidence Code section 452, subdivision (h), of the 1971 model medical staffbylaws, which at that time were jointly adopted and approved by the California Medical Association (CMA) and the California Hospital Association (CHA). Similarly, in both Anton, at pages 818-819, and Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 628,fn. 15, this court took judicial notice of the model bylaws of the Joint Commission on Accreditation ofHospitals, which contain provisions regarding medicalstaff eligibility. Other courts have takenjudicial notice of model medical staff bylaws as well.! (See Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 627 [“We avail ourselves of Evidence Code section 452, subdivision (h), to take judicial notice of nationwide, generally accepted standards describing the organization and functions of medical staffs and medical staff committees in accredited hospitals”]; see also El-Attar v. Hollywood Presbyterian Medical Center (2011) 198 Cal.App.4th 664, 676-677, typed opn., 14 [discussing the California Medical Association’s Model Medical Staff Bylaws, but without specifying whether the court took judicial notice of them].) C. This court should take judicial notice of the CHA Model Medical StaffBylaws becausetheyare relevant to the issue pending before this court. As explained more fully in the Hospital’s concurrently filed openingbrief on the merits (OBOM), the CHA Model Medical Staff Bylaws 2011 are relevant to the issue pending before this court 1 Courts have likewise taken judicial notice of bylaws governing other types of administrative proceedings. (See Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 35, fn. 1 [“[p]ursuant to Evidence Code sections 452 and 459, the court takes judicial notice of the bylaws of the San Bernardino County Employees Retirement Association” in an action seeking damagesfor alleged delay in awardofdisability retirement benefits]; see also Coffin v. Alcoholic Beverage Control Appeals Bd. (2006) 139 Cal.App.4th 471, 479, fn. 6 [taking judicial notice on the court’s own motion of instructions given by Department ofAlcoholic Beverage Control in a hearing regarding an applicant’s petition for a liquor license].) concerning the Hospital governing board’s authority to appoint the hearing officer and judicial review committee panel membersfor Dr. El-Attar’s peer review proceeding. Dr. El-Attar’s peer review followed the governing board’s denial of his application for readmission to the Hospital’s medical -staff—an action that the Medical Executive Committee (MEC)of the Hospital’s medical staff did not endorse. (OBOM 11-14.) Accordingly, although the Hospital’s medical staff bylaws specified that the MEC shall appoint the hearing officer and physician members of the judicial review committee adjudicating the soundness of the board’s action, the MEC resolved that the Hospital’s governing board should make those appointments because the peer review proceeding concerned the board’s recommendedaction. (/bid.) The CHA modelbylawsprovidethat, if a peer review hearing is based upon an adverse action by the hospital’s governing board, the chair of the governing board shall fulfill the functions otherwise assigned to the chief of the medical staff, and the hospital’s governing board shall assumetherole of the medical staffs MEC with respect to the peer review proceedings. (CHA Model Medical Staff Bylaws 2011, § 14.6-1; see id. 9 14.1-5, 14.6-4, 14.6-5.) As explained in the Hospital’s opening brief, the CHA Model Medical Staff Bylaws are relevant because they demonstrate that Dr. El- Attar’s fair procedure rights were not infringed and show that the Court of Appeal’s decision would undermine the medical staff bylaws of every California hospital that has adopted the CHAModel Medical Staff Bylaws. (OBOM 40, 44-46.) CONCLUSION For all the foregoing reasons, the Hospital respectfully requests that this court take judicial notice of the CHA Model Medical Staff Bylaws 2011. February 24, 2012 HORVITZ & LEVY LLP DAVID S. ETTINGER H. THOMAS WATSON CHRISTENSEN & AUER JAY D. CHRISTENSEN ANNA M. SUDA By: H. Thomas Watson Attorneys for Defendant and Respondent HOLLYWOOD PRESBYTERIAN MEDICAL CENTER DECLARATION OF ANNA M. SUDA I, Anna M. Suda, declare asfollows: 1. I am an attorney duly admitted to practice before this Court. Iam a Senior Associate at Christensen & Auer, counsel of record for defendant and respondent Hollywood Presbyterian Medical Center in the action styled El-Attar v. Hollywood Presbyterian Medical Center, Supreme Court Case No. $196830. I have personal knowledgeofthe facts set forth herein. If called asa witness, I could and would competently testify to the matters stated herein. 2. Attached hereto as Exhibit A is a true and correct copy of the CHA Model Medical Staff Bylaws 2011, which I secured from the California Hospital Association. I declare under penalty ofperjury underthe laws of the State of California that the foregoing is true and correct. Executed this 22"4 day of February, 2012, at Pasadena, California. _—Anna M. Suda 5196830 IN THE SUPREME COURT OF CALIFORNIA OSAMAH EL-ATTAR, Plaintiff and Appellant, Uz. HOLLYWOOD PRESBYTERIAN MEDICAL CENTER, Defendant and Respondent. [PROPOSED] ORDER GRANTING JUDICIAL NOTICE Good cause appearing in El-Attar v. Hollywood Presbyterian Medical Center (Case No. S196830), judicial notice is taken of the California Hospital Association (CHA) Model Medical Staff Bylaws 2011, attached as Exhibit A to the declaration of Anna M. Suda supporting the motion for judicial notice filed by Hollywood Presbyterian Medical Center. Dated: CHIEF JUSTICE CHA MODEL MEDICAL STAFF BYLAWS2011 CHA ModelMedical Staff Bylaws 2011 Model Medical Staff Bylaws Introduction The Model MedicalStaff Bylaws are designed to comply with California and federal law, and the applicable standards of The Joint Commission (TJC). The 2008 edition of the Model Medical Staff Bylaws was published amidst uncertainty as to TJC’s medical staff bylaws standard (then known as MS1.20), whichcalled into question the CHA Model Medical Staff Bylaws format of addressing major issues in the Bylaws, and including implementing details in the Rules. - The controversy surrounding MS1.20 caused TJCto suspendits implementation, and instead convene a Task Force to review the standard. In the meantime, TJC also . implemented a new numbering scheme, and MS1.20 was renumbered as MS.01.01.01. In March 2010, TJC announced acceptanceof the Task Force’s recommendedrevisions to MS.01.01.01, which are effective March 2011. While these revisions do impact some of CHA’s Model Medical Staff Bylaws, they leave intact the fundamental structure of the CHA Model Medical Staff Bylaws — namely allowing major issues to be addressed in the Bylaws, and additional details to be includedin the Rules. In August 2010, CHA published an Interim Edition of the Model Medical Staff Bylaws addressing the changesnecessitated by the new MS.01.01.01 Standard and the Centersfor Medicare & Medicaid Services (CMS) Medicare Conditionsof Participation. This 2011 Edition presents somefurther refinements to those Interim changes,as well as other changes to address recent legal developments. Refinements to the MS.01.01.01 revisions(i.e., MS.01.01.01-related changes that did not appear in the Interim amendments) are highlighted with a *. Throughout the Bylaws,there are optional provisions and alternative selections the Medical Staff can use to prepareBylaws that meetits needs and practices. Explanatory comments are called out, while options areitalicized, bracketed and blue. For example, in the Preamble, the nameofyour hospital should be insertedinsteadof“finsert nameofhospital].” Revisions to this edition are shownin red: additions are underlined, deletions are stricken over. Please note that when a section has been addedordeleted, the subsequent numbers have changed. CHA Model Medical Staff Bylaws | 2011 Model Medical Staff Bylaws Preamble These Bylaws are adopted in recognition of the mutual accountability, interdependence and responsibility of the Medical Staff and the Governing Bodyoffinsert name of hospital] in protecting the quality of medical care provided in the hospital and assuring the competency of the hospital’s Medical Staff. The Bylaws provide a frameworkfor self-government, assuring an organization of the Medical Staff that permits the Medical Staff to dischargeits responsibilities in matters involving the quality of medical care, to govern the orderly resolution of issues and the conduct of Medical Staff functions supportive of those purposes, and to account to the Governing Bodyfor the effective performance of Medical Staff responsibilities. These Bylaws provide the professional and legal structure for Medical Staff operations, organized Medical Staff relations with the Governing Body,andrelations with applicants to and membersofthe Medical Staff. Accordingly, the Bylaws address the Medical Staff's responsibility to establish criteria and standards for Medical Staff membership andprivileges, and to enforce thosecriteria and standards; they establish clinical criteria and standards to oversee and manage quality assurance,utilization review, and other Medical Staff activities including, but notlimited to, periodic meetings of the MedicalStaff, its committees, fand departments,] and review and analysis of patient medical records; they describe the standards and proceduresforselecting and removing Medical Staff Officers; and they address the respective rights and responsibilities of the Medical Staff and the Governing Body. Finally, notwithstanding the provisions of these Bylaws, the Medical Staff acknowledges that the Governing Body mustact to protect the quality of medical care provided and the competency of the Medical Staff, and to ensure the responsible governanceofthe hospital. In adopting these Bylaws, the Medical Staff commits to exercise its responsibilities with diligence and goodfaith; and in approving these Bylaws, the Governing Body commits to allowing the Medical Staff reasonable independence in conductingtheaffairs of the Medical Staff. Accordingly, the Governing Body will not assume a duty or responsibility of the Medical Staff precipitously, unreasonably,or in bad faith; and will do so only in the reasonable and goodfaith belief that the Medical Staff has failed to fulfill a substantive duty or responsibility in matters pertaining to the quality of patient care. COMMENT:The above Preamble summarizesthe intentof the Bylaws, capturing not only the statutory provisions of Business & Professions Code Section 2282.5, but also the legislative intent articulated in the enacting legislation (SB 1325, enacted in 2004). CHA believes these are important provisionsto include in the Bylaws, especially as they state the interdependency and reciprocal commitments of the Medical Staff and the Governing Body. CHA Model Medical Staff Bylaws 2014 Definitions COMMENT:Definitions may be addedto or deleted; however, they should be placedin alphabeticalorder fo facilitate easeof reference. 1, Allied Health Professional or AHP means an individual, other than a licensed physician, dentist, [clinical psychologist] or podiatrist, who exercises independent judgmentwithin the areas of his or her professional competence andthelimits established by.the Governing Body, the MedicalStaff, and the applicable State Practice Act, who is qualified to render direct or indirect medical, dental, [psychological] or podiatric care under the supervision or direction of a Medical Staff memberpossessingprivileges to provide such care in the hospital, and who maybeeligible to exercise privileges and prerogatives in conformity with the policies adopted by the Medical Staff and Governing Body, these Bylaws and the Rules. AHPsare noteligible for Medical Staff membership. COMMENT:Notall hospitals allow clinical psychologists to become Medical Staff members. See the Comment accompanying definition 11. 2, Chief Executive Officer means the person appointed by the Governing Bodyto serve in an administrative capacity orhis or her designee. 3. [Chief Medical Officer (CMO)] means a practitioner appointed by the Governing Body to serve as a liaison between the Medical Staff and the administration.] COMMENT: Some hospitals have Chief Medical Officers who help the MedicalStaff fulfill its functions and whooften take very active roles in quality improvement and peerreview.if a different title is used for the CMO, such as Vice President for Medical Affairs, that title may be usedin lieu of CMO,orthe definition can be revisedto referto the title: Hospitals that do not have CMOsshould delete the italicized references and provisions throughoutthe Bylawspertaining to the CMO.Note,in prior editions of the CHA Model Bylaws, we used the term Medical Director to describe this position. However, in many hospitals, there are service-specific Medical Directors whoseroles are morelimited than that contemplated for the CMO. Accordingly, we have shifted the terminologyto correlate with the broaderrole typically assignedto this position. Throughout the Bylaws, references to “Medical Director” have been changed to Chief Medical Officer.Also, note, fo maintain the alphabetical orderof the definitions, this description has been moved,and affects the numbering of subsequentdefinitions. 4. Chief of Staff meansthe chiefofficer of the Medical Staff elected by the MedicalStaff. 5. Date of Receipt meansthe date anynotice, special notice or other communication was delivered personally; orif such notice, special notice or communication was sent by mail, it shall mean 72 hoursafterthe notice, special notice, or communication was deposited, postage prepaid, in the United States mail. (See also, the definitions of Notice and Special Notice.) 6. Days means calendar days unless otherwise specified. 7. Ex Officio means service by virtue of office or position held. An ex officio appointmentis with vote unless specified otherwise. 8. Governing Body meansthe[board ofdirectors], [board oftrustees], [district board]. As appropriate to the context and consistent withthe hospital’s Bylaws,it may also mean any Governing Body committee or individual authorized to act on behalf of the Governing Body. 3 CHA Model Medical Staff Bylaws 2011 9. Hospital means[insert nameof hospital], and includesall inpatient and outpatient locations and services operated underthe auspicesofthe hospital’s license. 10. Medical Executive Committee or Executive Committee means the executive committee of the MedicalStaff. 11. Medical Staff means the organizational componentof the hospital that includesall physicians (M.D.or D.O.), dentists, [clinical psychologists], and podiatrists who have been granted recognition as members pursuantto these Bylaws. COMMENT: Some hospitals allow clinical psychologists to join the Medical Staff; others do not. Throughout these Bylaws, references to clinical psychologists areitalicized so the Mecical Staff can easily revise them depending on whetherclinical psychologists are membersof the MedicalStaff or the AHP staff. However,a health carefacility owned or operatedby the State thatoffers care or services within a clinical psychologist's scope of practice mustestablish Rules, regulations and procedures for consideration of an application for Medical Staff membership andclinical privileges submitted by a clinical psychologist. 12. Medical Staff Year meansthe period from fUanuary 1 through December31]. 13. Member meansany practitioner who has been appointed to the MedicalStaff. 14. Notice means a written communication delivered personally to the addressee or sent by United States mail, first-class postage prepaid, addressed to the addresseeat the last address as it appearsin theofficial records of the Medical Staff or the hospital. (See also, the definitions of Date of Receipt and Special Notice.) 15. Physician meansan individual with an M.D.or D.O. degree whois currently licensed to practice medicine. 16. Practitioner means, unless otherwise expressly limited, any currently licensed physician (M.D. or D.O.), dentist, [clinical psychologist] or podiatrist. 17. Privileges or Clinical Privileges means the permission granted to a Medical Staff member or AHPto renderspecific patient services. 18. Rules refers to the Medical Staff fand/or department] Rules adopted in accordancewith these Bylaws unless specified otherwise. 19. Special Notice means a notice sent by certified or registered mail, return receipt requested. (See also, the definitions of Date of Receipt and Notice above.) . 20. [System means the [insert name of health system].] 21. [System Member meansa facility or entity (such as anaffiliated hospital, urgent care center, surgery center, foundation or other entity) that is part of fhe system] COMMENT:System should be definedfor hospitals that are part of a health system and desire to develop and implement cooperative credentialing and peer review among the health system entities. Throughoutthese Bylaws, enabling language authorizes such cooperative arrangements. Hospitals that are not part of a health system,or that do not wish to participate in such cooperative arrangements, should drop theitalicized references throughout the Bylawsto the system-oriented provisions. 22. Telemedicineis the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video or data communications. 4 CHA Model Medical Staff Bylaws | 2011 Article 1 Name and Purposes 1.1 Name The nameof this organization shall be the Medical Staff of finsert nameof hospital]. 1.2 Description 1.2-1 The Medical Staff organization is structured as follows: The membersofthe Medical Staff are assigned to a Staff category depending upon nature and tenureofpractice at the hospital. All new membersare assignedto the Provisional Staff. Upon satisfactory completion of the provisional period, the membersare assignedto oneofthe Staff categories described in Bylaws, Article 3, Categories of the Medical Staff. 1.2-2 [Members are also assigned to departments, depending upon their specialties, as follows: [Insert list of departments — this will be the same asthelist for your hospital at Bylaws, Section 10.2-1]. Each departmentis organized to perform certain functions on behalf of the department, such as credentials review and peer review.] 1.2-3 There are also Medical Staff committees, which perform staff-wide responsibilities, and. which overseerelated activities being performed by the /departments//{department committees]. 1.2-4 Overseeingall of this is the Medical Executive Committee, comprised of the elected officials of the Medical Staff, {the department chairpersons,] representatives elected at large, and [insert other membersofyourhospital’s Medical Executive Committee]. 1.3 Purposes and Responsibilities 1.3-1 The Medical Staffs purposesare: a. To assurethatall patients admitted or treated in anyofthe hospital services receive a uniform standard of quality patient care, treatment andefficiency consistent with generally accepted standardsattainable within the hospital’s means and circumstances. b. To providefor a level of professional performancethat is consistent with generally accepted standards attainable within the hospital’s means and circumstances. c. To organize and support professional education and community health education and supportservices. d. To initiate and maintain Rules for the Medical Staff to carry out its responsibilities for the professional work performed in the hospital. e. To provide a meansfor the Medical Staff, Governing Body and administration to discuss issues of mutual concern and to implement education and changes intended to continuously improvethe quality of patient care. f. To provide for accountability of the MedicalStaff to the Governing Body. g. To exerciseits rights and responsibilities in a manner that does not jeopardize the hospital’s license, Medicare and Medi-Cal provider status, accreditation, for tax exempt status.] 1.3-2 The Medical Staffs responsibilities are: 5 CHA Model Medical Staff Bylaws 2011 a. To provide quality patient care. b. To account to the Governing Bodyfor the quality of patient care providedbyall members authorized to practice in the hospital through the following measures: 1. Review and evaluation of the quality of patient care provided throughvalid and reliable patient care evaluation procedures; 2. An organizational structure and mechanismsthat allow on-going monitoring of patient care practices; 3. A credentials program, including mechanismsof appointment, reappointment and the matchingof clinical privileges to be exercised or specified services to be performed with the verified credentials and current demonstrated performance of the Medical Staff applicant or member; 4. A continuing education program basedat least in part on needs demonstrated through the medical care evaluation program; 5. A utilization review program to provide for the appropriate useof all medical services. c. To recommendto the Governing Body action with respect to appointments, reappointments, staff category fand departmentassignments], clinical privileges and corrective action. d. To establish and enforce, subject to the Governing Body approval, professional standardsrelated to the delivery of health care within the hospital. e. To account to the Governing Bodyfor the quality of patient care through regular reports and recommendations concerning the implementation, operation, and results of the quality review and evaluation activities. f. To initiate and pursuecorrective action with respect to members where warranted. g. To provide a frameworkfor cooperation with other community health facilities and/or educationalinstitutions orefforts. h. To establish and amend from timeto time as needed Medical Staff Bylaws, Rules and policies for the effective performance of Medical Staff responsibilities, as further described in these Bylaws. i. To select and remove Medical Staff officers. j. To assess Medical Staff dues and utilize Medical Staff dues as appropriate for the purposesof the MedicalStaff. 1.4 [Health System Affiliation] COMMENT:Theseare optionalprovisionsfor facilities desiring to develop and implement cooperative appointment, reappointment, and peer review procedures with other system members. Such cooperative processes are generally advisable only where the system membersare located in the same geographic area and the involved practitioner seeks membership at more than onefacility or entity in that area. (This could include geographically proximate acute care hospitals, surgery centers, medical foundations, etc.) These cooperative provisions are especially usefulin.effectively implementing and managing telemedicine programs operated among system affiliates. [This hospital is part of, or affiliated with, the system. Oneof fhe purposesof the system is to maintain comparably high professional standards amongits patient care facilities and to strive fo provide efficient 6 CHA Model Medical Staff Bylaws 2011 patient care and support services. In keeping with the foregoing, cooperative credentialing, peer review, corrective action, and proceduralrights are hereby authorized, in accordance with the guidelines in these Bylaws.] 1.4-1[Credentialing] [The Medical Staff may enter into arrangements with other system membersfo assistit in credentialing activities. This may include, withoutlimitation, relying on information in other system members’ credentials and peer reviewfiles in evaluating applications for appointment and reappointment, andutilizing fhe other system members’ medical or professional staff support resources to process orassist in processing applications for appointment and reappointment] 1.4-2 [Peer Review] [The Medical Staff may enter into arrangements with other system membersfo assistit in peer review activities. This may include, without limitation, relying on information in other system members’ credentials and peerreviewfiles, and utilizing the other system members’ medical or professional staff support resources to conduct or assist in conducting peer review activities.] 1.4-3 [Corrective Action] [The Medical Staff may work cooperatively with any other system memberat which a Medical Staff memberholds privileges to develop and impose coordinated, cooperative, orjoint corrective action measures as deemed appropriate to the circumstances. This may include, but is not limited to, giving timely notice of emerging orpending problems, as well as notice of corrective actions imposed and/or reciprocal effectiveness of such corrective actions as provided in the Bylaws, Section 13.6.] 1.4-4 [Joint Hearings and Appeals] [The Medical Staff and Governing Body are authorized to participate in joint hearings and appeals provided the applicable procedures are substantially comparable to those setforth in the Bylaws, Article 14, Hearings and Appellate Reviews.] CHA Model Medical Staff Bylaws | 2011 Article 2 Medical Staff Membership 2.1 Nature of Medical Staff Membership Medical Staff membership and/or privileges may be extended to and maintained by only those professionally competent practitioners who continuously meet the qualifications, standards, and requirements set forth in these Bylaws and the Rules. A practitioner, including one who hasa contract with the hospital to provide medical-administrative services, may admit or provide services to patients in the hospital only if the practitioner is a memberof the Medical Staff or has been granted temporary privileges in accordance with these Bylaws and the Rules. Appointmentto the Medical Staff shall confer only such privileges and prerogatives as have been established by the Medical Staff and granted by the Governing Body in accordancewith these Bylaws. 2.2 Qualifications for Membership 2.2-1 General Qualifications Membership on the Medical Staff and privileges shall be extended only to practitioners whoare professionally competent and continuously meet the qualifications, standards, and requirements set forth in the Medical Staff Bylaws and Rules. Medical Staff membership (except honorary Medical Staff) shall be limited to practitioners who are currently licensed or qualified to practice medicine, podiatry, [clinical psychology] or dentistry in California. 2.2-2 Basic Qualifications COMMENT:All Medical Staffs have basic standards every member must meet. Itis helpfulto identify those standards as the minimum necessary to have an application reviewed.In this way, the Medical Staff can avoid investigating and reviewing an applicant whofails to meet basic qualifications.Whether the applicant meets basic qualifications can be determined either by reviewing the application that is submitted or by using a two-step application process(often referred to as pre-application screening) in which applicants mustfill out forms demonstrating they meetthe basic Criteria before they can receive the complete Medical Staff application form. Medical Staffs may wantto avoid the two- step process, which builds in more paperwork and delays,in favor of informing applicants that their applications will not be processedif they fail to meet specified basic criteria. These Bylaws use the latter approach.Each hospital maysetits own basic standards. The exampleslisted below in Section 2.2-2 are relatively elevated standardsthatwill not be realistic for some hospitals. Thislist can be augmented or scaled dawn depending uponthé hospital's needs and _ constraints. All basic standards should, however, be capable of objective determination. A practitioner must demonstrate compliance with all basic standardssetforth in this Section in order to have an application for Medical Staff membership accepted for review. The practitioner must: a. Qualify under California law to practice with an out-of-state license orbe licensed as follows: 1. Physicians must be licensed to practice medicine by the Medical Board of California or the Board of Osteopathic Examinersofthe State of California; 2. Telemedicine providers whoare notlicensed in California must be registered as a telemedicine provider with the Medical Board of California. CHA Model Medical Staff Bylaws 2011 COMMENT: Traditionally physicians were requiréd to maintain licenses in the state in which the care was provided to a patient. With the onset of telemedicine, California and other states have had to address licensing issues with respect to how an out-of-state physician can provide services and/or consultation when they are notlicensed in the state where the patient is located.California has enacted two laws specifically relating to the practice of medicine acrossstatelines. Business & Professions Code Section 2052.5 establishes a registration program to permit out-of-state physicians to register to practice medicine in California. Business & Professions Code Section 2060 exempts practitioners located outside this state from the Medical Practice Act when consulting with anin-state physician; however, this exemption is not sufficient to enable the out-of-state physician to be a Telemedicine Provider of services directly to a patient. 3. Dentists mustbe licensedto practice dentistry by the California Board of Dental Examiners; . 4. Podiatrists must be licensed to practice podiatry by the California Board of Podiatric Medicine; 5. [Clinical psychologists must be licensed fo practice clinical psychology by the California Board of Psychology and Division of Allied Health Professions of the Medical Board of California.] b. If practicing clinical medicine, dentistry, or podiatry, have a federal Drug Enforcement Administration number. COMMENT:Somehospitals no longer require practitioners to maintain Drug Enforcement Administration (DEA) certificates if they will not have privileges to prescribe scheduled drugs. Ifa DEA certificate will not be required forall applicants, this subsection should be eliminated from the basic requirements. c. Be certified by or currently qualify to take the boardcertification examination of a board recognized by the American Board of Medical Specialties, the American Board of Podiatric Surgery, the American Board of Orthopedic Podiatric Medicine, or a boardor association with equivalent requirements approved by the Medical Board of California in the specialty that the practitionerwill practice at the hospital, or have completed a residency approved by the Accreditation Council for Graduate Medical Education that provided complete training in the specialty or subspecialty that the practitioner will practice at the hospital. This section shall not apply to dentists for clinical psychologists]. d. [Be eligible to receive payments from the federal Medicare and state Medicaid (Medi-Cal) programs.] COMMENT:Medicare and Medi-Caleligibility are important considerations, especially as relates to call-coverage requirements and excluded providers. While it is arquably not necessary to make this a pre-condition to Medical Staff membership, in most cases participation in these programsis essential. Need for exceptions can be dealt with via - Section 2.2-4, Waiver of Qualifications, below. e. Haveliability insurance or equivalent coverage meeting the standardsspecified fin the Rules] [by the Governing Body]. COMMENT:Somehospitals include the insurance requirementsin the Medical Staff Rules; others prefer the requirements be established by the Governing Body. CHA Model Medical Staff Bylaws 2011 f. Have actively practiced for an average of at least 20 hours per weekin the specialty he or she will practice at the hospital for 12 of the previous 24 months(or have completed a residency within the previous 18 months). g. Be located close enough (office and residence) to the hospital to provide continuous care to his or herpatients. The distanceto the hospital may vary depending upon the Medical Staff category and privileges that are involved andthefeasibility of arranging alternative coverage, and maybe defined in the Rules. COMMENT:Somehospitals establish proximity by using mileage parameters; others prefer to use an averagetravel time. Using a travel time is more difficult to monitor dueto traffic delays.I's importantto relate proximity to both home and office because of emergency call responsibilities. h. Pledge to provide continuouscareto his or her patients. i. If requesting privileges only in /departments] [services] operated under an exclusive contract, be a member, employee or subcontractor of the group or person that holds the contract. A practitioner who does not meet these basic standardsis ineligible to apply for — Medical Staff membership, and the application shall not be accepted for review, except that applicants for the honorary Medical Staff do not need to comply with anyof the basic standards[andapplicantsforthe affiliate Medical Staff need not comply with paragraphs (c), (d) and (f, and applicants for the Telemedicine Staff need not comply with paragraph(g) of this Section 2.2-2]. If itis determined during the processing that an applicant does not meet all of the basic qualifications, the review of the application shall be discontinued. An applicant who does not meetthe basic standardsis not entitled to the proceduralrights set forth in these Bylaws, but may submit comments and a requestfor reconsideration of the specific standards which adversely affected such practitioner. Those comments and requests shall be reviewed by the Medical Executive Committee and the Governing Body, which shall have sole discretion to decide whether to consider any changesin the basic standardsor to grant a waiver as allowed by Bylaws, Section 2.2-4, below. 2.2-3 Additional Qualifications for Membership In addition to meeting the basic standards, the practitioner must: a. Documenthis or her: 1. Adequate experience, education, and training in the requestedprivileges; 2. Current professional competence; 3. Good judgment; and 4. Adequate physical and mental health status (subject to any necessary reasonable accommodation) to demonstrateto the satisfaction of the MedicalStaff that he or she is sufficiently healthy and professionally and ethically competentso that patients can reasonably expect to receive the generally recognized professional level of quality and safety of care for this community. Withoutlimiting the foregoing, with respect to communicable diseases, practitioners are expected to knowtheir own health status, to take such precautionary measures as may be warranted under the circumstancesto protect patients and others present in the hospital, and to comply with all reasonable precautions established by hospital 10 CHA Model Medical Staff Bylaws 2011 and/or MedicalStaff policy respecting safe provision of care and services in the hospital. COMMENT:This provision is recommendedto proactively address immunizations and communicable diseases.This Bylaws provision stops short of requiring immunization, but provides an avenuefor each hospital fo develop its own policies addressing these issues. b. Be determinedto: 1. Adhere to the lawful ethicsof his or her profession; 2. Be able to work cooperatively with others in the hospital setting so as not to adversely affect patient care or hospital operations; and 3. Be willing to participate in and properly discharge Medical Staff responsibilities. 2.2-4 Waiver of Qualifications Insofar as is consistent with applicable laws, the Governing Body hasthe discretion to deem a practitionerto havesatisfied a qualification, after consulting with the Medical Executive Committee,if it determines that the practitioner has demonstrated he or she has substantially comparable qualifications and that this waiver is necessary to serve the best interests of the patients and of the hospital. There is no obligation to grant any such waiver, and practitioners have noright to have a waiver considered and/or granted. A practitioner whois denied a waiver or consideration of a waiver shall not be entitled to any hearing and appeal rights under these Bylaws. 2.3 Effect of OtherAffiliations . Nopractitioner shall be entitled to Medical Staff membership merely because he or she holds a certain degree,is licensed to practice in this or in any otherstate, is a memberof any professional organization,is certified by any clinical board, or because he or she had, or presently has, staff membership orprivileges at another health care facility. 2.4 Nondiscrimination Medical Staff membershipor particular privileges shall not be denied on the basisof age, religion, race, creed, color, natidnal origin, or any physical or mental impairmentif, after any necessary reasonable accommodation,the applicant complies with the Bylaws or Rules of the Medical Staff or the hospital. 2.5 Administrative and Contract Practitioners 2.5-1 Contractors with No Clinical Duties A practitioner employed by or contracting with the hospital in a purely administrative capacity with noclinical duties orprivileges is subject to the regular personnelpolicies of the hospital and to the termsofhis or her contract.or other conditions of employment and need not be a memberofthe MedicalStaff. 2.5-2 Contractors Who HaveClinical Duties COMMENT:Some MedicalStaffs also terminate membership, as well as privileges, when an exclusive arrangementis terminated and the practitioner has no otherprivileges.If that is done, this Section and Section 2.5-3, Subcontractors, should be modified. 11 CHA Model MedicalStaff Bylaws 2011 a. A practitioner with whom the hospital contracts to provide services which involve clinical duties or privileges must be a memberofthe MedicalStaff, achieving his or her status by the procedures described in these Bylaws. Unless a written contract or agreement, executed after this provision is adopted, specifically provides otherwise, or unless otherwise required by law,those privileges made exclusive or semi- exclusive pursuantto a closed-staff or limited-staff specialty policy will automatically terminate, without the right of access to the review, hearing, and appeal procedures of the Bylaws, Article 14, Hearings and Appellate Reviews, upon termination or expiration of such practitioner’s contract or agreement with the hospital. b. Contracts between practitioners and the hospital shall prevail over these Bylaws and the Rules, except that the contracts may not reduce any hearing rights granted when an action will be taken that must be reported to the Medical Board of California or the federal National Practitioner Data Bank. 2.5-3 Subcontractors Practitioners who subcontract with practitioners or entities who contract with the hospital maylose privileges granted pursuantto an exclusive or semi-exclusive arrangement (but not their Medical Staff membership) if their relationship with the contracting practitionerorentity is terminated, or the hospital and the contracting practitioner’s or entity’s agreementor exclusive relationship is terminated. The hospital may enforce such an automatic termination evenif the subcontractor’s agreementfails to recognizethis right. 2.6 Basic Responsibilities of Medical Staff Membership Except for honorary members (see Rule 1 , Appendix 1E Honorary and Retired Staff), each Medical Staff memberand each practitioner exercising temporary privileges shall continuously meetall of the following responsibilities: 2.6-1 Provide his or her patients with care that is generally recognized professionallevel of quality andefficiency. 2.6-2 Abide by the Medical Staff Bylaws and Rules andall other lawful standards, policies and Rules of the Medical Staff and the hospital. 2.6-3 Abide byall applicable laws and regulations of governmental agencies and comply with applicable standards of The Joint Commission. 2.6-4 Discharge such Medical Staff, (department, section,] committee and service functions for whichheorsheis responsible by appointment,election or otherwise. 2.6-5 Abide by all applicable requirementsfor timely completion and recording of a physical examination and medicalhistory, as further described at Section 5.4-3.* COMMENT:*Thetiming requirements for the H&P have been moved to a new Section 5.4-3, and consolidated with provisions regarding who can perform H&Ps. 2.6-6 Acquire a patient’s informed consentforall procedures and treatments identified in the Bylaws, Section 15.1-5, and abide by the proceduresfor obtaining such informed consent. 12 CHA Model MedicalStaff Bylaws 2011 COMMENT: CMSInterpretive Guidelines to 42 CFR Section 482. 13(b)(2) require that a list of all procedures requiring informed consent be includedin the Bylaws. 2.6-7 Prepare and complete,in a timely and accurate manner, the medical and other required recordsfor all patients to whom thepractitioner in any way providesservices in the hospital, [including compliance with such electronic health record (EHR) policies and protocols as have been implemented by the hospital]. 2.6-8 Abide by the ethical principles of his or her profession. 2.6-9 Refrain from unlawful fee splitting or unlawful inducementsrelating to patient referral. 2.6-10 Refrain from any unlawful harassmentor discrimination against any person (including any patient, hospital employee, hospital independent contractor, Medical Staff member, volunteer, or visitor) based upon the person’s age,sex,religion,race, creed, color, national origin, healthstatus, ability to pay, or source of payment. 2.6-11 Refrain from delegating the responsibility for diagnosis or care of hospitalized patients to a practitioner or Allied Health Professional whois not qualified to undertake this responsibility or who is not adequately supervised. 2.6-12 Coordinate individual patients’ care, treatment and services with other practitioners and hospital personnel, including, but not limited to, seeking consultation whenever warranted by the patient’s condition or when required by the Rules or policies and procedures of the Medical Staff for applicable department]. 2.6-13 Actively participate in and regularly cooperate with the Medical Staff in assisting the hospitalto fulfill its obligations related to patient care, including, but not limitedto, continuous organization-wide quality measurement, assessment, and improvement, peerreview,utilization management, quality evaluation, ongoing and Focused Professional Practice Evaluations and related monitoringactivities required of the Medical Staff, and in discharging such other functions as may be required from timeto time. COMMENT:Revised to accommodate The Joint Commission Standards MS.05.01.01. + 2.6-14 Upon request, provide information from hisor her office records or from outside sources as necessary to facilitate the care of or review of the care of specific patients. 2.6-15 Recognize the importance of communicating with appropriate [departmentofficers and/or] Medical Staff Officers when heor she obtains credible information indicating that a fellow Medical Staff member may have engaged in unprofessional or unethical conduct or may have a health condition which posesa significant risk to the well-being or care of patients and then cooperate as reasonably necessary toward the appropriate resolution of any such matter. 2.6-16 Accept responsibility for participating in Medical Staff proctoring in accordance with the Rules and polices and procedures of the Medical Staff. 13 CHA Model Medical Staff Bylaws 2011 2.6-17 Complete continuing medical education that meets all licensing requirements andis appropriate to the practitioner’s specialty. 2.6-18 Adhere to the Medical Staff Standards of Conduct (as further described in Section 2.7, below), so as not to adversely affect patient care or hospital operations. 2.6-19 Participate in emergency service coverage and consultation panels as allowed and as required by the Rules. COMMENT: The model Rules that accompany these Bylaws suggest which categoriesof staff should have emergency room call responsibilities. However, they do not contain an elaborate description of these responsibilities, because such responsibilities vary significantly from hospital to hospital. itis imperative that each hospital develop such provisions, andit is strongly recommendedthat they be included in the Rules. Failure to address emergency roomcall responsibilities in the Bylaws or Rules can impair the Medical Staff's ability to take corrective action whena staff member disregards emergency room call obligations. 2.6-20 Cooperate with the Medical Staff in assisting the hospital to meet its uncompensated or partially compensated patient care obligations. 2.6-21 Participate in patient and family education activities, as determined by the fdepartment or] Medical Staff Rules, or the Medical Executive Committee. 2.6-22 Notify the MedicalStaff office in writing promptly, and nolater than 14 calendardays, following any action taken regarding the member’s license,Drug Enforcement Administration registration, privileges at otherfacilities, changes in liability insurance coverage, any reportfiled with the National Practitioner Data Bank, or any other action or changein circumstancesthat could affect his/her qualifications for MedicalStaff membership and/orclinical privileges at the hospital. COMMENT:The above changes are recommendedso the Medical Executive Committee (MEC) remains apprised ofall pertinent changes in a members’ current qualifications for membership andprivileges. 2.6-23 Continuously meet the qualifications for and perform the responsibilities of membership as set forth in these Bylaws. A member may be required to demonstrate continuing satisfaction of any of the requirements of these Bylaws upon the reasonable request of the Medical Executive Committee. This shall include, but is not limitedto, mandatory health or psychiatric evaluation and mandatory drug and/oralcohol testing, the results of which shall be reportable to the Medical Executive Committee, the Well-Being Committee/, and/or the Professional Conduct Committee}. COMMENT:The above changes are recommendedto clarify mandatorytesting rights and disclosure of results. See new Rule Appendix 4J, regarding the Professional Conduct Committee. 2.6-24 Discharge such otherstaff obligations as may be lawfully established from timeto time by the Medical Staff or Medical Executive Committee. 2.7 Standards of Conduct 14 CHA Model Medical Staff Bylaws 2011 COMMENT:Theseprovisions, as well as corresponding provisionsin the Rules, are designed to give the Medical Staff effective tools for dealing with disruptive behavior, Membersof the Medical Staff are expected to adhere to the Medical Staff Standards of Conductincluding, but notlimited to, the following: 2.7-1 General . a. It is the policy of the Medical Staff to require that its members fulfill their Medical Staff obligations in a mannerthat is within generally accepted boundsof professional interaction and behavior. The Medical Staff is committed to supporting a culture and environmentthat values integrity, honesty and fair dealing with each other, and to promoting a caring environmentfor patients, practitioners, employees andvisitors. b. Rude, combative, obstreperous behavior,as well as willful refusal to communicate or comply with reasonable rules of the Medical Staff and the hospital may be found to be disruptive behavior. It is specifically recognized that patient care and hospital operations can be adversely affected wheneveranyofthe foregoing occurs with respect to interactions at any level of the hospital, in that all personnel play an importantpart in the ultimate mission of delivering quality patient care. c. In assessing whether particular circumstancesin fact are affecting quality patient care or hospital-operations, the assessment need not be limited to care of specific patients, or to direct impact on patient health. Rather, it is understood that quality patient care embraces—in addition to medical outcome—matters such as timeliness of services, appropriatenessof services, timely and thorough communications with patients, their families, and their insurers (or third party payers) as necessary to effect paymentfor care, and general patient satisfaction with the services rendered andthe individuals involved in rendering those services. 2.7-2 Conduct Guidelines a. Upon receiving Medical Staff membership and/orprivileges at the hospital, the member enters a common goalwith all members of the organization to endeavor to maintain the quality of patient care and appropriate professional conduct. b. Members of the Medical Staff are expected to behave in a professional manneratall times and with all people—patients, professional peers, hospitalstaff, visitors, and others in andaffiliated with the hospital. c. Interactions with all persons shall be conducted with courtesy, respect, civility and dignity. Membersofthe Medical Staff shall be cooperative and respectful in their dealings with other personsin andaffiliated with the hospital. d. Complaints and disagreements shall be aired constructively, in a nondemeaning manner, and throughofficial channels. e. Cooperation and adherenceto the reasonable Rulesof the hospital and the Medical Staff is required. f. Members of the MedicalStaff shall not engage in conductthatis offensive or disruptive, whetherit is written, oral or behavioral. 2.7-3 Adoption of Rules The Medical Executive Committee may promulgate Rules furtherillustrating and implementing the purposesofthis Section including, but not limited to, procedures for 15 CHA Model Medical Staff Bylaws 2011 investigating and addressing incidents of perceived misconduct, and, where appropriate, progressive or other remedial measures. These measures may include [establishing a Professional Conduct Committee to oversee practitioner conductissues,] alternative avenues for medical or administrative disciplinary action, which in turn may include butare not limited to conditional appointments and reappointments, requirements for behavioral contracts, mandatory counseling, practice restrictions, and/or suspension or revocation of Medical Staff membership and/orprivileges.* COMMENT:*The above changesfurtherclarify the authority of the MEC to promulgate Rulesthatinclude specific disciplinary actions. These changes are recommendedin light of MS.01.01.01, EPs 29 and 30, requiring the Medical Staff Bylaws to addressthe indicationsfordisciplinary actions. This revised Section clarifies that behavioral misconduct is an indication for such actions, and also clarifies that notall remedial measures need be progressive (e.g., in particularly egregious circumstances immediate and severe action may be warranted).Additionally, the change accommodates and correlates with new provisions that have been addedto the Rules, providing an alternative avenue for processing certain behavioral issues through administrative channels, rather than medical disciplinary channels, and establishing a Professional Conduct Committee. See additional comments accompanying changes to Bylaws, Section 14.8 and fo Rules Section 2.3 and Appendix 4d. 16 CHA ModelMedical Staff Bylaws | 2011 Article 3 Categories of the Medical otaft 3.1 Categories Each Medical Staff membershall be assigned to a Medical Staff category based upon the qualifications defined in the Rules (see Rule 1, Categories ofMembership). The members of each Medical Staff category shall have the prerogatives and carry out the duties defined in the Bylaws and Rules. Action maybe initiated to change the Medical Staff category or terminate the membership of any member whofails to meet the qualifications or fulfill the duties described in the Bylaws or Rules. Changes in Medical Staff category shall not be - groundsfor a hearing unless they adversely affect the member’s privileges. 3.2 General Exceptions to Prerogatives Regardless of the category of membership in the MedicalStaff, podiatrists, {clinical psychologists,] dentists, and limited license members: 3.2-1 May not hold any general MedicalStaff office. COMMENT:The Joint Commission requires that no Medical Staff member actively practicing in the hospital shall be ineligible for membership on the Medical Executive Committee (MEC) solely because ofhis or her professional discipline or specialty. Therefore, hospitals may need to create one or more at-large positions on the MECin orderto meetthis requirement. 3.2-2 Shall have the right to vote only on matters within the scopeof their licensure. Any disputes over voting rights shall be determined by the chair of the meeting, subject to final decision by the Medical Executive Committee. 3.2-3 Shall exercise privileges only within the scopeoftheir licensure and as limited by the Medical Staff Bylaws and Rules. 3.3 Summary of Prerogatives and Responsibilities of the Medical Staff ‘COMMENT:The Joint Commission MS.01.01.01, EP 15, requires that the Medical Staff Bylaws include a description of the roles and responsibilities of each category of practitioner on the Medical Staff. The following summary (replicated from the CHA Model Medical Staff Rules), fulfills this requirement. 17 M E D I C A L S T A F F C A T E G O R I E S PR E R O G A T I V E S e t ) o e ) e e e ey 1 Ea I C M E TTT F P e t i a ae a o tc t ) ee AF FI LI AT E. Ad mi ts , co ns ul ts an d re fe rs in pa ti en ts an d ou tp at ie nt s Y e s (r eg ul ar y) ! Y e s (c on su lt s o n l y Y e s (w /l im it s) 3 Ye s (w /l in it s) " Y e s (w / li mi ts ) Ye s (w /l im it s) ® El ig ib le for cl in ic al pr iv il eg es Ye s Y e s N o Y e s (l im it ed ) Ye s. (c ov er s) Y e s V o t e Y e s N o N o . N o N o H o l d Of fi ce Y e s N o N o Se rv e as C o m m i t t e e Ch ai r Y e s N o N o Se rv e o n C o m m i t t e e s Ye s Ye s Y e s R E S P O N S I B I L I T I E S M e d i c a l St af f F u n c t i o n s Y e s Y e s Y e s Y e s N o ‘C on su lt in g Y e s Y e s Y e s Y e s N o E R Ca ll Y e s Y e s Y e s [ Y e s / N o ] N o At te nd M e e t i n g s Y e s Ye s N o N o N o P a y Ap pl ic at io n F e e Ye s Y e s Y e s Y e s N o Pa y: D u e s Ye s. Ye s. Y e s Y e s A D D I T I O N A L P A R T I C U L A R Q U A L I F I C A T I O N S M u s t fi rs t co mp le te pr ov is io na l t l N / A [ Y e s / N o ] Y e s N o Y e s N o Ma lp ra ct ic e. In su ra nc e Ye s Ye s Ye s N o Ye s Ye s Ye s Fi le ap pl ic at io n an d ap pl y fo r re ap po in tm en t Yes Yes Y e s N o Ye s Yes Y e s 'Regularlymeansat l e a s t fe ig ht ]; 2 N o ad mi ss io ns . * Co -a dm il , as si st in su rg : > 3 F e w e r th an [e ig ht ] bu t at le as t [t hr ee ]. er ya n d wr it e: pr og re ss no te s. > Pa ti en ts of m e m i b e r be in g. co ve re d. § Me di ca l Ex ec ut iv e C o m m i t t e e sh al l de fi ne li mi ts pe rt in en t to ea ch te le me di ci ne se rv ic e. [f iv e] fo r th e fo ll ow in g, sp ec ia lt ie s: al le rg y, de nt is tr y, de rm at ol og y a n d ps yc hi at ry /p sy ch ol og y. CHA Model MedicalStaff Bylaws | 2014 CHA ModelMedical Staff Bylaws 2011 Article 4 Procedures for Appointment and Reappointment 4.1 General The Medical Staff shall consider each application for appointment, reappointment and privileges, and each request for modification of Medical Staff category using the procedure and the criteria and standards for membership andclinical privileges set forth in the Bylaws and the Rules. The Medical Staff shall perform this function also for practitioners who seek temporary privileges and for Allied Health Professionals. The Medical Staff shall investigate each applicant for appointment or reappointment and make an objective, evidence-based decision based upon assessmentofthe applicant vis-a-vis the hospital’s “general competencies,”(as further described at Bylaws, Section 5.2, before recommendingaction to the Governing Body. The Governing Body shall ultimately be responsible for granting membership andprivileges (provided, however, that these functions may be delegated to the Chief of Staff and Chief Executive Officer with respect to requests for temporary privileges). By applying to the Medical Staff for appointment or reappointment(or by accepting - honorary Medical Staff appointment), the applicant agrees that regardless of whether he or she is appointed or granted the requested privileges, he or she will comply with the responsibilities of Medical Staff membership and with the Medical Staff Bylaws and Rules as they exist and as they may be modified from timeto time. 4.2 Overview of the Process The following chart depicts the basic steps of the appointment, reappointment, and temporary privileges processes. Details of each step are described in Rules 2.2 through 2.9. COMMENT:The Joint Commission (TJC) Standard MS.01.01.01, EPs 14, 15, 26, and 27, require that the MedicalStaff Bylaws mustinclude the basic steps of the credentialing, recredentialing, privileging, reprivileging, and appointment, reappointmentprocesses. The summary below (replicated from the CHA Model MedicalRules)fulfills this requirement. APPOINTMENT AND REAPPOINTMENT Person or Body Function Report to Medical Staff Coordinator Verify application [Department (See Rule 2.5)] information [Department] [Review applicant’s qualifi- [Credentials Committee (See cations vis-a-vis standards Rule 2.7-1)] developed by department; recommend appointment and privileges] [Credentials Committee] [Review department's [Medical Executive Committee recommendation, review (See Rule 2.7-2)] applicant’s qualifications vis-a- 19 CHA Model Medical Staff Bylaws 2014 vis Medical Staff Bylaws general standards; recommend appointment and privileges] Medical Executive [Review recommendations of Governing Body (See Rule Committee department and Credentials 2.7-3) Committee;] recommend appointment and privileges Governing Body Review recommendations Final Action (See Rule 2.7- of the Medical Executive 4) Committee; make decision REAPPOINTMENT ANDPRIVILEGES Person or Body Function Report to Medical Staff Coordinator Verify reappointment [Department (See Rule 2.9-3)] information [Department] [Review applicant’s perfor- mance vis-a-vis standards developed by department; recommend appointment and privileges] [Medical Executive Committee (See Rule 2.9-4) or Credentials Committee (See Optional Rule 2,9-4)] [Other Review Committees] [Report on any performance problems within scope of committee review] [Credentials Committee (See Optional Rule 2.9-4)] [Credentials Committee] [Review department's recommendation; review committee reports; review applicant’s performance vis-a- vis Medical Staff bylaws general standards; recom- mend appointment and privileges] [Medical Executive Committee (See Optional Rule 2.9-5)] Medical Executive [Review recommendations of Governing Body(See Rule Committee department and Credentials 2.9-5) or (See OptionalCommittee,] recommend Rule 2.9-5)appointmentandprivilegesGoverning Body Review recommendations Final Action (See Rule 2.9-of the Medical Executive 6)Committee; make decision TEMPORARYPRIVILEGES Person or Body Function Report to 20 CHA Model Medical Staff Bylaws 2011 Medical Staff Coordinator Verify key information [Department (See Rule 2.5 and Bylaws Section 5,5-2)] [Department Chief] [Review applicant’s qualifi- [Chief of Staff (See Bylaws cations vis-a-vis standards Section 5,5-2d.)] developed by department; recommend temporary privileges] . Chief of Staff [Review recommendations of Chief Executive Officer Department Chair] (See Bylaws Section 5.5- recommend temporary 2d.) privileges Chief Executive Officer Make decision Final action (See BylawsSection 5.5-2d.) 21 CHA Model Medical Staff Bylaws 2011 Article 5 Privileges 5.1 Exercise of Privileges Except as otherwise provided in these Bylawsor the Rules, every practitioner or Allied Health Professional providing direct clinical services at this hospital shall be entitled to exercise only those setting-specific privileges granted to him or her. Practitioners who wish to participate in the delivery of telemedicine services (whetherto patients of this hospital, or to patients of another facility that this hospital is assisting via telemedicine technology) must apply for and be granted setting and procedure-specific telemedicine privileges. (Additionally, practitioners whoare not otherwise membersofthis hospital’s Medical Staff whowishto provide services via telemedicine technology must apply for and be granted membership andprivileges as part of the Telemedicine Staff (per Rule 1, Categories of Membership, Appendix 11 Telemedicine Staff) in order to provide services to patients of this hospital.) 5.2 Criteria for Privileges/General Competencies 5.2-1 Criteria for Privileges Subject to the approval of the Medical Executive Committee and Governing Body,feach - department] [the Medical Staff] will be responsible for developingcriteria for granting setting- specific privileges (including, but not limited to, identifying and developingcriteria for any privileges that may be appropriately performed via telemedicine). These criteria shall address the hospital’s general competencies (as described below) and assure uniform quality of patient care, treatment, and services. Insofar as feasible, affected categories of Allied Health Professionals shall participate in developing the criteria for privileges to be exercised by Allied Health Professionals. Such criteria shall not be inconsistent with the Medical Staff Bylaws, Rules or policies. [Each department's approvedcriteria for granting privileges Shall be included in the department's rules.] 5.2-2 General Competencies The Medical Staff shall assessall practitioners’ current proficiency in the hospital’s general competencies, which shall be established by the [departments] [Medical Staff] and shall include assessmentof {patient care, medical/clinical knowledge, practice-based learning and improvement, interpersonal and communication skills, professionalism, and systems-basedpractice]. [Each department] [The Medical Staff] shall define how to measure these general competencies as applicable to the privileges requested, and shall use them to regularly monitor and assess each practitioner’s current proficiency. COMMENT:The Joint Commission's (TJC) revised standardsrelating to credentialing andprivileging require the hospital to establish "general competencies’that will serve as the basis for evaluating practitioner's qualifications for appointment, reappointment, andprivileges. TJC suggests, but does notrequire, the general competencies developed by the Accreditation Council for Graduate Medical Education and the American Board of Medical Specialties, as reflected in the above Bylaws language. 5.3 Delineation of Privileges in General 5.3-1 Requests 22 CHA Mode! Medical Staff Bylaws 2011 Each application for appointment and reappointmentto the Medical Staff must contain a request for the specific privileges desired by the applicant. A request for a modification of privileges must be supported by documentation of training and/or experience supportive of the request. The basic steps for processing requests for privileges are described at Bylaws, Section 4.2. COMMENT:Added to comply with TJC Standard MS.01.01.01, EPs 3 and 14. 5.3-2 Basis for Privilege Determinations Requests for privileges shall be evaluated onthe basis of the hospital’s needs andability to support the requested privileges and assessmentof the applicant’s general competencies with respect to the requested privileges, as evidenced bythe applicant’s license, education, training, experience, demonstrated professional competence, judgmentandclinical performance, (as confirmed by peers knowledgeable of the applicant’s professional perfor- mance), health status, the documented results of patient care and other quality improvement review and monitoring, performanceofa sufficient number of procedures each year to develop and maintain the applicant’s skills and knowledge, and compliance with any specific criteria applicable to the privileges requested. Privilege determinationsshall also be based on pertinent information concerningclinical performance obtained from other sources, especially other institutions and health care settings where an applicant exercises privileges. 5.3-3 Telemedicine Privileges a. The initial appointmentof telemedicine privileges may be based upon: 1. The practitioner’s full compliance with this hospital’s privileging standards; 2. By using this hospital’s standards but relying on information provided by the hospital(s) at which the practitioner routinely practices; or 3. If the hospital wherethe practitioner routinely practices is accredited by The Joint Commission andagrees to provide a comprehensive reportof the ‘practitioner’s qualifications, by relying entirely on the privileging of that other hospital. COMMENT:The above Section was narrowed to addressjustprivileging decisions. Corollary provisions relating to credentialing of a telemedicine practitioner appear at Bylaws, Section 5.3-3(b) below. b. Reappointmentof a Telemedicine Staff member’s privileges may be based upon performanceat this hospital, and, if insufficient informationis available, upon information from the hospital(s) where the practitioner routinely practices. 5.4 Admissions; Responsibility for Care; History and Physical Requirements; and Other General Restrictions on Exercise of Privileges by Limited License Practitioners COMMENT:The below changesreorganize and reconcile the myriad requirements imposed by California hospital licensing regulations, CMS Conditions of Participation, and TJC. These include: + 22 CCR 70717(c) — requiring that patients shall be admitted only upon the order and underthe care of a memberof the medicalstaff. 23 CHA Model Medical Staff Bylaws 2011 + 22 CCR 70701(a)(1}(E) — stating that membership on the medicalstaff shall be restricted to physicians, dentists, podiatrists, and clinical psychologists. + 42 CFR 482.12(c} — requiring (in pertinent part) that all Medicare patients must be underthe care of a MD, DO, DDS, or DMD, DPM,orclinical psychologists; and that patients are admitted to the hospital only on the recommendation of a licensed practitioner permitted by the state to admit patients to a hospital; that if a Medicare patient is admitted by a practitioner not specified (in the Medicare definition of a “physician,” that patient is under the care of a MD or DO; and that a MD or DO is responsible for the care of each Medicare patient with respect to any medical or psychiatric problem that is present on admission or develops during hospitalization and is not specifically within the scopeofpractice of a DDS or DMD. DPM orclinical psychologist as defined by state law (while Medicare also permits other practitioners fo be members of the medical staff, this is not permitted by California hospital licensing regulations so these provisions have beentailored in the model Bylawsto reconcile with state law). + 22 CCR 70717(c) — requiring that the patient's condition and provisional diagnosis shall be established attime of admission by the memberofthe medical staff who admits the patient. + 22 CCR 70717(c)(1) — requiring that patients admitted for podiatric services shall receive the same basic medical appraisal as patients admittedfor other services; including the performance and recordingsofthefindings in the heath record of an admission H&P exam whichshall be performed by persons lawfully authorized to do so bytheir respective practice acts. + 22 CCR 70717(d) — requiring a complete H&P within 24 hours after admission, or immediately before(if the condition of the patient permits). * 22 CCR 70223 — requiring that prior to commencing surgery the person responsible for administering anesthesia, or the surgeon if a general anesthetic is not to be administered, shall ascertain that the patient's medical record includes an interval medical history and physical examination performed and recorded within the previous 24 hours. * 42 CFR 482.22(c)(5) — requiring that the Bylaws include a requirementthat a medicalhistory and physical exam must be completed no more than 30 days before or 24 hours after admission by a physician [as defined by Medicare this includes MD, DO, DDS, DPM,DC,or Clinical PAD], or an cromaxillofacial surgeon or other qualified individual in accordancewith state law and hospital policy; that the H&P be placed in the medical record within 24 hours after admission; and that when the H&P are completed within 30 days before admission, there must be an updated medical record entry documenting an examination for any changesin the patient's condition is completed and documentedin the record within 24 hours after admission; and 482.51(b)(1) — requiring a complete H&Pin the chart prior to surgery [an exception for emergenciesis permitted if appropriately documented,butthis is not required to be in the Bylaws; most hospitals include this level of detail in the rules along with other hospital-specific requirements for performing and documenting the H&P]. * TJC Standard MS.01.01.01 EP 16 — requiring that the Bylawsinclude requirements for completing an H&P; and PC.01.02.03 EPs 4 & 5 — requiring a H&P no more than 30 daysprior or within 24 hours after admission, but prior to surgery or a procedure requiring anesthesia; and an update documenting any changes within 24 hoursafter registration and prior to a surgery or procedure requiring anesthesia. COMMENT:Moved to New Sections, Section 5.4-2(c) and Section 5.4-3(b). 5.4-1 Admitting Privileges [Option 1] 24 CHA Model Medical Staff Bylaws 2011 a. [Only Medical Staff members with admitting privileges may independently admit patients to the hospital. The following categoriesoflicensees are eligible to independently admit patients to the hospital:] 1. [Physicians (MDs or DOs),] 2. [Dentisis;] 3. [Podiatrists;] 4. [Clinical Psychologists.] [Option 2] a. [The following categories oflicenseesare eligible to independently admit patients to the hospital:] 1. [Physicians (MDs or DOs).] b. [The following categories of licensees are eligible to co-admit patients to the hospital:] 1. [Dentists;] 2. [Podiatrists;] 3. [Clinical Psychotogists.] COMMENT:While Option 1 and Option 2 are both legally permitted, some hospitals require co-admitting by dentists, podiatrists, and clinical psychologists to assure compliancewith the requirement, at Bylaws, Section 5.4-2(b), below, that a physician memberof the Medical Staff must assume responsibility for care of medical or psychiatric conditions that are present uponorthatarise after admission.Note: CMS surveyors are reviewing Bylaws to see who may admit patients. While federal law permits a broader rangeofpractitioners to have admitting privileges, California hospital licensing regulations are not as permissive [22 CCR 70701(a}(1)(E), see comment above]. c. [Additionally, AHPs with admitting privileges may admit patients upon order of a memberofthe Medical Staff who has admitting privileges and who maintains responsibility for the overall care of the patient] 1. [Physician Assistants;] 2. [Nurse Practitioners;] 3. [Certified Nurse Midwives.] COMMENT:Note,it is within the discretion of the hospital to extend admitting privileges to these additional categories (and subjectto the stated conditions,i.e., a member mustorder and be responsible for overall care); butit is not required.If these categories are allowed to admit on behalf of their supervising physician, it should be describedin the Bylawsor the Rules. 5.4-2 Responsibility for Care of Patients a. All patients admitted to the hospital must be under care of a memberofthe Medical Staff. b, The admitting memberofthe MedicalStaff shall establish, at the time of admission, the patient’s condition and provisional diagnosis. c. For patients admitted by or upon orderofa dentist, oral surgeon,[clinical psychologist] or podiatrist members, a physican member must assume responsibility for the care of the patient’s medical or psychiatric problemsthat are presentat the time of 25 CHA Model Medical Staff Bylaws 2011 admission or which mayarise during hospitalization which are outsideof the limited license practitioner’s lawful scopeof practiceorclinical privileges. COMMENT:Moved to Section 5.4-4. 5.4-3 History and Physicals and Medical Appraisals a. Members of the Medical Staff, with appropriate privileges, may perform history and physical examinations. b. When evidence of appropriate training and experience is documented,a limited © license practitioner may perform the history or physical on his or her ownpatient. Otherwise, a physician member must conductordirectly supervise the admitting history and physical examination (except the portion related to dentistry, [clinical psychology] or podiatry). c. All patients admitted for care in a hospital by a dentist, oral surgeon,[clinical psychologist] or podiatrist shall receive the same basic medical appraisal as patients admitted to other services, and a physician memberora limitedlicense practitioner with appropriate privileges shall determinethe risk and effect of any proposed treatment or surgical procedure on the general health status of the patient. Where a dispute exists regarding proposed treatment between a physician memberand a limited license practitioner based upon medical orsurgical factors outside of the scopeoflicensure of the limited license practitioner, the treatmentwill be suspended insofar as possible while the dispute is resolved by the /appropriate department(s)] [Chief of Staff]. COMMENT:Note, although Title 22 only requires the above physician oversightfor patients admitted by a podiatrist, the above provision extends this requirementto apply to patients admitted by any oftheselimited license practitioners. This provision can be modified to the scopeofthe regulation. d. The admitting or referring memberof the Medical Staff shall assure the completion of a physical examination and medicalhistory on all patients within 24 hoursafter admission (or registration for a surgery or procedure requiring anesthesia or moderate or deep sedation), or immediately before. This requirement may be satisfied by a complete history and physical that has been performed within the 30 days prior to admissionorregistration (the results of which are recorded in the hospital’s medical record) so long as an examination for any changesin thepatient’s condition is completed and documentedin the hospital’s medical record within 24 hours after admissionorregistration. e, Additionally, the history and physical must be updated within 24 hoursprior to any surgical procedureor other procedure requiring general anesthesia or moderate or deep sedation. Thepractitioner responsible for administering anesthesia may,if granted clinical privileges, perform this updating history and physical. COMMENT:Moved from Section 2.6-5, and modified to address outpatient H&P requirements as well. 5.4-4Surgery and High Risk Interventions by Limited License Practitioners 26 CHA Model Medical Staff Bylaws 2011 a. Surgical procedures performed by dentists and podiatrists shall be underthe overall supervision of the [Chair of the designated department or the Chair's designee]. b. Additionally, the findings, conclusions, and assessment of risk must be confirmed or endorsed by a physician member with appropriate privileges, prior to major high- risk (as defined by the {responsible department] [Medical Staff) diagnostic or therapeutic interventions. 5.5 Temporary Privileges 5.5-1 Circumstances a. Temporary privileges may be granted after appropriate application: 1. For /30]-day periods, subject to renewal during the pendencyof an application, not to exceed a total of 120 days; 2. For the care of up to [4] specific patients each consecutive /12] months; 3. For practitioners whowill serve as locum tenens for a Medical Staff memberfor up to /30] days at a time, subject to renewal to a total of [120] days in any consecutive /12] months(if a locum tenens serves more than /4] times in a calendaryear, or for greater than [120] days in a calendaryear, he or she shall be required to apply for regular Medical Staff membershipifhe or she desires to exercise privileges at the hospital); or 4. As otherwise necessary to fulfill an important patient care need. b. Temporary members of the Medical Staff who are granted temporary membership for purposesof serving on standing or Ad Hoc Committees for investigation proceedings,are not, by virtue of such membership, granted temporary clinical privileges. COMMENT:The Bylaws mustestablish a time limit on temporary privileges to meet an important patient care need (which is the category generally applicable to temporary locum tenens appointments) (see TJC standard MS.06.01.13, EP 1); and TJC limits temporaryprivileges for new membersto a total of 120 consecutive days (see MS.06.01.13, EP 6).Note: If a hospital does not anticipate an ongoing need for telemedicine services, temporary privileging may be an appropriate way to accommodate the occasional need for such services, 5,5-2 Application and Review a. Temporary privileges may be granted after the applicant completes the application procedure and the MedicalStaff office completes the application review process. The following conditions apply: 1. There mustfirst be verification of: i. Current licensure; ii. Relevant training or experience; iii. Current competence;. iv. Ability to perform the privileges requested. 2. The results of the National Practitioner Data Bank and Medical Board of California queries have been obtained and evaluated. 3. The applicanthas: i. Filed a complete application with the Medical Staff office; 27 CHA Model Medical Staff Bylaws 2011 ii. No currentor previously successful challengeto licensure or registration; iii. Not been subject to involuntary termination of Medical Staff membership at anotherorganization; and iv. Not been subject to involuntary limitation, reduction, denial, or loss of clinical privileges. b. Thereis no right to temporary privileges. Accordingly, temporary privileges should not be granted unless the available information supports, with reasonablecertainty, a favorable determination regarding the requesting applicant’s or Allied Health Professional's qualifications, ability and judgmentto exercise the privileges requested. c. If the available information is inconsistent or casts any reasonable doubts on the applicant’s qualifications, action on the request for temporary privileges may be deferred until the doubts have been satisfactorily resolved. COMMENT:The decision to grant temporary privileges should be deferredif there is unfavorable information or reasonable doubts as to an applicant's suitability for the Medical Staff. Under California law, the denial or termination of temporary privileges for a medicaldisciplinary cause or reason must be reported to the Medical Board of California. This action entitles the practitioner to a hearing, whereasa deferral may not require a hearing. d. Temporary privileges may be granted bythe Chief Executive Officer(orhis or her designee) on the recommendationofthe Chiefof Staff for the Department Chair where the privileges will be exercised, or either’s designee]. e. A determination to grant temporary privileges shall not be binding or conclusive with respect to an applicant’s pending request for appointmentto the Medical Staff. 5.5-3 General Conditions and Termination a. Members granted temporary privileges shall be subject to the proctoring and supervision in accordance with the Focused Professional Practice Evaluation requirements specified in the Rules. b. Temporary privileges shall automatically terminate at the end of the designated period, unless affirmatively renewed as provided at Bylaws, Section 5.5-i(a), page 41, or earlier terminated as provided at Bylaws, Section Section 5.5-3(c), below. c. Temporary privileges may be terminated with or without cause at any time by the Chief of Staff, [the responsible Department Chair] or the Chief Executive Officer after conferring with the Chief of Staff for the responsible Department Chair]. A person shall be entitled to the procedural rights afforded by the Bylaws,Article 14, Hearings and Appellate Reviews, only if a request for temporary privileges is refused based upon, orif all or any portion of temporary privileges are terminated or suspendedfor,a medical disciplinary cause or reason. In all other cases (including a deferral in acting on. a request for temporary privileges), the affected practitioner shall not be entitled to any proceduralrights based upon any adverse action involving temporary privileges. d. Whenever temporary privileges are terminated, [the appropriate DepartmentChair or, in the Chair's absence,] the Chief of Staff shall assign a memberto assume responsibility for the care of the affected practitioner’s patient(s). The wishesofthe patient and affected practitioner shall be considered in the choice of a replacement member. 28 CHA Model!Medical Staff Bylaws |°2011 e. All persons requesting or receiving temporary privileges shall be bound by the Bylaws and Rules. 5.6 Disaster and EmergencyPrivileges 5.6-1 Disaster privileges may be granted whenthe hospital’s disaster plan has been activated and the organization is unable to handle the immediate patient needs. The following provisions apply: a. Disaster privileges may be granted on a case-by-case basis by the Chief Executive Officer, based upon recommendationofthe Chief of Staff, for in his or her absence, the recommendation ofthe responsible Department Chair] upon presentation ofa valid government-issued photo identification issued by a state or federal agency and any of the following: 1. Acurrent picture hospital identification card; 2. A currentlicense to practice and primary source verification of the license; 3. Identification indicating that the practitioner is a memberof a Disaster Medical Assistance Team; 4. Identification indicating that the practitioner has been granted authority to render patient care in emergency circumstances, such authority having been granted bya federal, state, or municipalentity; 5. Presentation by current hospital or Medical Staff member(s) with personal knowledgeregarding the practitioner’s identity. b. Persons granted disaster privileges shall wear identification badges denoting their status as a Disaster Medical Assistance Team member. c. The MedicalStaff office shall begin the processofverification of credentials and privileges as soon as the immediate situation is under control, using a process identical to that described in Bylaws, Section 5.5-2, above (except that the individual is permitted to begin rendering services immediately, as needed). d. The {responsible Department Chair] [Chief of Staff] shall arrange for appropriate concurrent or retrospective monitoring of the activities of practitioners granted disaster privileges. 5.6-2 In the event of an emergency, any memberof the Medical Staff or credentialed Allied Health Professional shall be permitted to do everything reasonably possible, within the scope of their licensure,to save the life of a patient or to save a patient from serious harm. The memberor Allied Health Professional shall promptly yield such care to a qualified member when one becomesavailable.[if additional practitioners are needed and available, fhe emergency credentialing procedure described in the Rules shall be used to grant credentials to the practitioner] 5.7 Transport and Organ Harvest Teams Properly licensed practitioners whoindividually, or as membersof a grouporentity, have contracted with the hospital to participate in transplant and/or organ harvestingactivities may exerciseclinical privileges within the scope of their agreement with the hospital. COMMENT:TJC permits practitioners who are not membersof the Medical Staff and who have not undergone Medical Staff credentialing to provide patient care services as members ofa transport or organ harvest team.Under California 29 CHA Model Medical Staff Bylaws 2011 law, such a feam member must Hold a current California license to practice medicine. An exception to the ficensure requirement would be in the case of an emergency (Business & Professions Code Section 2060).Also, the Medicare Conditions of Participation require that hospitals performing certain organ transplants must be a memberof the Organ Procurement and Transplantation Network established under Section 372 of the Public Health Services Act and must abide by its Rules and requirements. (This applies to the following transplants: humankidney,liver, heart, lung or pancreas.) COMMENT:The proctoring provisions have been movedto follow the Allied Health Professionalarticle, as these provisions apply to membersof the Medical Staff and Allied Health Professionals. More significantly, proctoring has been Incorporated into the overall scheme of Focused Professional Practice Evaluations, required by TJC, as described in the Bylaws, Article 7, Performance Evaluation and Monitoring. 30 CHA Model Medical Staff Bylaws 2011 5.8 Dissemination of Privileges List ; Documentation of current privileges (granted, modified, or rescinded) shall be disseminated to the hospital admissions/registration office and such other scheduling and health information services personnel as necessary to maintain an up-to-datelistingof privileges for purposesof scheduling and monitoringto assure that practitioners are appropriately privileged to perform all services rendered. COMMENT:Added to comply with TJC Standard MS.06.01.09, EP 4. 31 CHA Model Medical Staff Bylaws 2011 Article 6 Allied Health Professionals | COMMENT:Thesecredentialing provisionsforAllied Health Professionals (AHPs) envision that an Interdisciplinary Practice Committee will serve as the credentialing committee. (See additional comments at Appendix 41 Interdisciplinary Practice Committee). 6.1 Qualifications of Allied Health Professionals Allied Health Professionals (AHPs) are noteligible for Medical Staff membership. They may be granted practice privileges if they hold a license,certificate or other credentials in a category ofAHPsthat the Governing Body (after securing Medical Executive Committee comments) hasidentified as eligible to apply for practice privileges, and only if the AHPsare professionally competent and continuously meet the qualifications, standards and requirements set forth in the Medical Staff Bylaws and Rules. 6.2 Categories The Governing Body shall determine, based upon commentsofthe Medical Executive Committee and such other informationas it has before it, those categories of AHPsthat shall be eligible to exercise privileges in the hospital. Such AHPs shall be subject to the supervision requirements developed[in each department] and approvedby the Interdisciplinary Practice Committee, the Medical Executive Committee, and the Governing Body. 6.3 Privileges [and Department Assignment] 6.3-1 AHPs may exercise only those setting-specific privileges granted to them by the Governing Body. The rangeof privileges for which each AHP mayapply, and any speciallimitations or conditionsto the exercise of such privileges, shall be based on recommendationsof the Interdisciplinary Practice Committee, subject to approval by the Medical Executive Committee and the Governing Body. 6.3-2 An AHP mustapply and qualify for practice privileges, and practitioners whodesire to supervise or direct AHPs who provide dependentservices must apply and qualify for privileges to supervise approved AHPs. Applicationsfor initial granting of practice privileges and biennial renewal thereof shall be submitted and processedin a similar mannerto that provided for practitioners, unless otherwise specified in the Rules. 6.3-3 Each AHPshall be /assignedto the department or departments appropriate to his or her occupational or professional training and, unless otherwise specified in these Bylawsor the Rules, shall be] subject to terms and conditionssimilar to those specified for practitioners as they maylogically be applied to AHPs and appropriately tailored to the particular AHP. 32 CHA ModelMedicalStaff Bylaws 2011 6.4 Prerogatives The prerogatives which may be extended to an AHPshall be defined in the Rules and/or hospital policies. Such prerogatives may include: 6.4-1 Provision of specified patient care services; which services may be provided _ independently or underthe supervision or direction of a Medical Staff member and consistent with the practice privileges granted to the AHP and within the scopeof the AHP’slicensureorcertification, as specified in the Rules. COMMENT:Thisclarification correlates with the fact that certain AHP services may be provided independently(if permitted by the Governing Body). 6.4-2 Service on the Medical Staff, {department] and hospital committees. 6.4-3 Attendanceat /the meetings of the department to which the AHPis assigned, as permitted by the department rules, and attendance at] hospital education programs in the AHP’sfield of practice. 6.5 Responsibilities Each AHPshall: 6.5-1 Meet those responsibilities required by the Rules and as specified for practitioners in Bylaws, Section 2.6, as they may belogically applied to reflect the more limited practice of the AHP. 6.5-2 Retain appropriate responsibility within the AHP’s area of professional competencefor the care and supervision of each patient in the hospital for whom the AHPis providing services. 6.5-3 Participate in peer review and quality improvement and in discharging such other functions as may be required from timeto time. 6.6 Procedural Rights of Allied Health Professionals COMMENT:The Joint Commission requires there to be a mechanism,including a fair hearing and appeal process,for addressing adverse decisions for AHP’s holdingclinical privileges(i.e., adverse decisions regarding renewal, revocation, or revision ofclinical privileges). The procedures may, but need not be, the same for AHPs and Medical Staff members. Three alternative procedures arelisted below. Some hospitals prefer to afford AHPs the same hearing and appealrights as are afforded members. of the Medical Staff (per Option 1, below); others prefer a more abbreviated process (such as the provisions described in Options 2 and 3, below). Option 2 assumes the hospital has decided to extend to AHPs already holding clinical privileges, the same hearing and appealrights as are afforded members of the Medical Staff (but AHP applicants would be afforded a more abbreviated hearing and appeal process). Option 3 assumes the hospital prefers a more abbreviated fuir hearing and appeal processfor all AHPs (other than clinical psychologists, who under California law must be given the same hearing and appealrights as afforded fo members of the Medical Staff). The rationale for distinguishing betweenthe categories is generally that state and federal law mandate extensive hearing rights for physicians, podiatrists, dentists and clinical psychologists, marriage and family therapists, and clinical social workers, but not for AHPs (otherthan clinical psychologists, marriage and family therapists, and clinical social workers). Also, state and federal law require reporting to the Medical Board of California and the National Practitioner Data Bank whenever a medicaldisciplinary action has been taken against a practitioner; whereas there is no such reporting requirement for AHPs. Given thesedifferences in the law, and given the cost anddifficulty of conducting the statutorily 33 CHA Model Medical Staff Bylaws 2011 mandated hearings and appeals, some hospitals optfor a simplified procedure whereverpossible. As yet, the California statutes and cases have notspecifically addressed fair hearing rights for AHP's. Medical Staffs are encouraged to discuss these considerations with their own legal counselprior to adopting proceduralrights affecting AHPs. [Option 1] 6.6-1 [Fair Hearing and Appeal] [Denial, revocation, or modification of AHPs'’privileges shall be the prerogative of the Interdisciplinary Practices Subcommittee, subject fo approval by the Credentials Committee, the Medical Executive Committee, and the Goveming Body. The procedural rights described at Bylaws, Article 14, Hearings and Appellate Reviews, shall apply.] [OF] [Option 2] 6.6-1 [Fair Hearing and Appeal] a. [Clinical psychologists, marriage and family therapists, and clinical social workers shall be entitled to the procedural rights set forth af Bylaws, Article 14, Hearings and Appellate Reviews.] b. [fExcept as provided at Section 6.6-1(a), with respectto clinical psychologists, marriage and family therapists, and clinical social workers] there shall be no formal hearing and appeal rights with respect to decisions to denyinitial applications for AHPclinical privileges. However, an AHP applicant shall have the right to challenge any such action byfiling a written grievance with the Medical Executive Committee within 15 days of such action. Upon receipt of such a grievance, the Medical Executive Committee or its designee shall conduct a review that shall afford the AHP an opportunity for an interview concerning the grievance. Any suchinterview shall not constitute a hearing as established by Bylaws, Article 14, Hearings and Appellate Reviews, and shall not be conducted according to the procedural Rules applicable to such hearings. Before the interview, the AHP shall be informedofthe general nature and circumstancesgiving rise fo the action, and the AHP maypresentinformation relevant thereto at the interview. A record of the interview shall be made. The Medical Executive Committee or ifs designee shall make a decision based on the interview andall other information available foit.] c. [Whenever an AHPholding clinical privileges is subject to an action that would constitute groundsfor a hearing under Bylaws, Section 14.2-2 through 14.2-6, the AHP shail be entitled to the proceduralrights set forth at Bylaws, Article 14, Hearings and Appellate Reviews.] COMMENT:Revisedto reflect changes in law requiring B&P 805 reports, and consequentArticle 14 hearing rights for marriage and family therapists and clinical social workers. The bracketed language pertaining to clinical psychologistsin subparagraphs (a) and (b) above, and in subparagraph (a) below, would be includedonlyif clinical psychologists are part of the AHP staff rather than the Medical Staff. [OR] [Option 3] 6.6-1 [Fair Hearing and Appeal] [AHPsshall be entitled to certain fair hearing and appealrights, as described below:] a. [Clinical psychologists, marriage and family therapists, and clinical social workers shall be entitled to the procedural rights set forth at Bylaws, Article 14, Hearings and Appellate Reviews.] | b. [Other] AHP applicants shall have the right to challenge a recommendation of the Interdisciplinary Practice Committee to deny orrestrict requested privileges by filing a written grievance with the Medical Executive Committee within 15 days of such action. Upon receipt of such a grievance, the 34 CHA Model Medical Staff Bylaws 2011 Medical Executive Committee or its designee shall conduct a review that shall afford the AHP an opportunity for an interview concerning the grievance. Any such interview shall not constitute a hearing as established by Bylaws, Article 14, Hearings and Appellate Reviews, and shall not be conducted according to the procedural Rules applicable to such hearings. Before the interview, the _ AHP shall be informed of the general nature and circumstances giving rise to the action, and the AHP may present information relevant thereto at the interview. A record of the interview shall be made. The Medical Executive Committee or its designee shall make a decision based on the interview and all other information available to if] c. [An AHP[other than a clinical psychologist, marriage and family therapist, orclinical social worker] holding clinical privileges who is subject to a recommendation ofthe Interdisciplinary Practice Committee to revoke, restrict or not renew anyorall of such AHP's privileges shallbe entitled to the rights set forth below] 1. [The affected AHP shall be given written notice of the recommendedaction.] 2. [The affected AHP shall have 10 days within which to request a Medical Executive Committee review hearing ofthe action.] 3. [If a review is requested, the affected AHP shall be given written notice of the general reasons for the action, and the date, time and place that the Medical Executive Committee review hearingis scheduled. Such date shall afford the AHPat least 14 calendar days’ notice] 4. [The affected AHP andthe Interdisciplinary Practice Committee, through its designated representative, shall each have 10 days to submit written information and argument in support of their positions.] 5. [The affected AHP shail have a right to appearat the Medical Executive Committee hearing, fo hear such evidence as the Interdisciplinary Practice Committee representative may presentin support of the committee’s recommendedaction, and to present evidence in support of the AHP’s challenge to that recommendation. Neither party shail be represented by legal counselin the hearing.] 6. [The Medical Executive Committee may then, at a time convenientto itself, deliberate outside the presenceofthe parties.] 7. [The Medical Executive Committee decision following such a hearing shail be effective immediately, but shall be subject to appeal to the Governing Body(or, in the discretion of the Governing Body, to an Appeal Board appointed by the Governing Bedy).] 8. [The affected AHP shall be promptly informed, in writing, of the Medical Executive Committee’s decision, and of his or her right to appeal the decision] 9. [The affected AHP shall have 10 days to request an appeal hearing. The request for appeal shall State, with specificity, the basis for the appeal.] 10. [The appeal hearing shail be conducted within 30 days. The parties fo the appeal shall be the Medical Executive Committee (which shall be represented by a memberof the Medical Staff. who may, but need not be a memberof the Medical Executive Committee or the Interdisciplinary Practice Committee).] 11. [Each party shall have the right to present a written statementin support ofhis, herorits position on appeal. The Governing Body (or Appeal Board, if applicable) Chair may establish reasonable time frames for the appealing party to submit a written statement andfor the responding party to respond. Each party has the right fo personally appear and make oral argument. The Governing Body (or Appeal Board, if applicable) may then, at a time convenientto itself, deliberate outside the presence ofthe parties] 12, [The Governing Body (or Appeal Board, if applicable) shall issue a final decision, in writing.] 35 CHA Model Medical Staff Bylaws 2011 COMMENT:Additional comments regarding Option 3:The optional language pertaining to clinical psychologists(in subparagraphs(a) and (c) above), and the word “other” (at the beginning of subparagraph (b) above) would beincluded onlyif clinical psychologists are part of the AHPstaff rather than the Medical Staff. The above provision makesthe Medical Executive Committee the hearing body. This is appropriate only if the Interdisciplinary Practice Subcommitteeor the Credentials Committee participatesin the credentialing process andis in a position fo issue an adverse recommendation. Some hospitals mayprefer to reserve to the Medical Executive Committee the authority to make the adverse recommendation that gives rise to the hearing (as is done with adverse recommendationsasto applicants or members of the Medical Staff), butif they do that, then an ad hoc hearing committee (rather than the Medical Executive Committee) would need to be the hearing body. This is because The Joint Commission requires that the hearing be conducted by a body that wasnotinvolved in making the adverse recommendation that would be at issue in the hearing. 6.6-2 Automatic Termination Notwithstanding the provisions of Bylaws, Section 6.6-1, page 49, an AHP’s privileges shall automatically terminate, without review pursuant to Bylaws, Section 6.6-1 or any other Section of the Medical Staff Bylaws,in the event: a. The Medical Staff membership of the supervising practitioner is terminated, whether such termination is voluntary or involuntary; b. The supervising practitioner no longer agrees to act as the supervising practitioner for any reason,or the relationship between the AHP andthe supervising practitioner is otherwise terminated, regardless of the reason therefore;or c. The AHP’scertification or license expires, is revoked, or is suspended. Whete the AHP’s privileges are automatically terminated for reasons specified in Section 6.6-2(a), above, the AHP mayapply for reinstatement as soon as the AHP has found another supervising practitioner who agrees to supervise the AHP andreceives ‘privileges to do so. In this case, the Medical Executive Committee may,in its discretion, expedite the reapplication process. COMMENT:Thisclarification can help assure no gapin service in cases where the supervising physician's departure is unexpected. CMSsurveyors,in particular, are carefully scrutinizing that AHP privileges are consistent with the Bylaws and Rules. 6.6-3 Review of Category Decisions Therights afforded by this Section shall not apply to any decision regarding whether a category of AHPshall or shall notbeeligible for practice privileges and the terms, prerogatives, or conditions of such decision. Those questions shall be submittedfor consideration to the Governing Body, which hasthe discretion to decline to review the requestor to review it using any procedure the Governing Body deemsappropriate. 36 CHA Model MedicalStaff Bylaws | 2011 Article 7 Performance Evaluation and Monitoring COMMENT:This Article incorporates The Joint Commission's (TJC) Ongoing Professional Practice Evaluation (OPPE) and Focused Professional Practice Evaluation (FPPE) standards. As described below, the proctoring provisions, formerly described in Bylaws,Article 5, Privileges, have been movedtothis Article 7, as a subset of FPPE. 7.1 General Overview of Performance Evaluation and Monitoring Activities The credentialing and privileging processes described in Bylaws, Article 4, Procedures for Appointment and Reappointment, and Article 5, Privileges, require that the Medical Staff develop ongoing performance evaluation and monitoring activities to ensure that decisions regarding appointment to membership on the MedicalStaff arid graitting or renewing of privileges are, among otherthings, detailed, current, accurate, objective and evidence-based. Additionally, performance evaluation and monitoringactivities help assure timely identification of problems that mayarise in the ongoing provision of services in the hospital. Problemsidentified through performanceevaluation and monitoringactivities are addressed via the appropriate performance improvement and/or remedial actions as described jin Bylaws, Article 13, Performance Improvementand Corrective Action. 7.2 Performance Monitoring Generally 7.2-1 Except as otherwise determined by the Medical Executive Committee and Governing Body, the Medical Staff shall regularly monitor all members’privileges in accordance with the provisionsset forth in these Bylaws and such performance monitoring policies as may be developed by the Medical Staff and approved by the Medical Executive Committee and the Governing Body. 7.2-2 Performance monitoring is not viewed as a disciplinary measure, but ratheris an information-gathering activity. Performance monitoring does notgiverise to the procedural rights described in Bylaws, Article 14, Hearings and Appellate Reviews (unless the form of monitoring is Level III proctoring and its imposition becomes a restriction of privileges because procedures cannot be done unlessa proctoris present and proctors are not available after reasonable attempts to secure a proctor). 7.2-3 The Medical Staff shall clearly define how information gathered during performance monitoring shall be sharedin orderto effectuate change and additionalaction,if determined necessary. 7.2-4 Performance monitoring activities and reports shall be integrated into other quality improvementactivities. 7.2-5 The results of any practitioner-specific performance monitoring shall be considered when granting, renewing, revising or revoking clinical privileges of that practitioner. 7.3 Ongoing Professional Performance Evaluations 37 CHA Model Medical Staff Bylaws 2011 7.3-1 [Each department] [The Medical Staff] shall recommend, for Medical Executive Committee and Governing Body approval, the criteria to be used in the conduct of Ongoing _ Professional Performance Evaluationsfor its practitioners. COMMENT:For example, TJC suggests the following criteria Ongoing Professional Performance Evaluation (OPPE): review of operative and otherclinical procedure(s) performed and their outcomes, pattern of blood and pharmaceutical usage,requests for tests and procedures, length of stay patterns, morbidity and mortality data, practitioner's use of consultants. See commentary to TJC Standard MS.08.01.03. 7.3-2, Methods that may be usedto gather information for Ongoing Professional Performance Evaluations include, but are not limited to: a. Periodic chart review; b. Direct observation; c. Monitoring of diagnostic and treatment techniques; d. Discussion with other individuals involvedin the care of each patient including consulting physicians, assistants at surgery, nursing and administrative personnel. 7.3-3 Ongoing performance reviewsshall be factored into the decision to maintain, revise or revoke a practitioner’s existing privilege(s). 7.4 Focused Professional Practice Evaluation COMMENT:According to TJC, Focused Professional Practice Evaluation (FPPE) includes proctoring. Therefore, we have modified the Bylaws provisions regarding proctoring, incorporating proctoring as a subset of FPPE.In addition, we have replaced the general proctoring requirement (customarily implemented to review new membersofthe staff or new requestsforprivileges) with a more generic FPPE requirement, which may include proctoring. Finally, we have refined the proctoring provisions fo create three levels of proctoring: * Level | proctoring appliestoall initially requested privileges and infrequently used privileges whereas LevelIl or LevelIll proctoring is appropriate when a question arises regarding a practitioner's competency. « The difference between Levellt and LevelIll is that the latter results in a restriction on the practitioner's privilege(s) that automatically triggers proceduralrights. (Levels | and I! are not practice restrictions, and do nottrigger such rights).These changes are recommendations only. Before they becomepartofthe Bylaws and Rules, these concepts must be checked for consistency with any other hospital policies and proceduresthat have been created to accommodate OPPE and FPPEin general. The hospital's policies and procedures must address the elements of performance at TJC Standard MS.08.01.01, which include: » The Medical Staff developscriteria to be used for evaluating the performance ofpractitioners when issues affecting the provision ofsafe, high quality patient care are identified. « The performance monitoring processis clearly defined, including criteria for conducting performance monitoring, method for establishing a monitoring plan specific to the requested privileges, method for determining the duration of performance monitoring, and the circumstances when an external source is required for monitoring. * The triggers that indicate a needfor performance monitoring andcriteria for what type of monitoring.For more on FPPE,see TJC Standard MS.08.01.01. 38 CHA Model Medical Staff Bylaws 2011 7.4-1 The Medical Staff is responsible for developing a focused professional practice evaluation process that will be used in predeterminedsituationsto evaluate, for a time- limited period, a practitioner’s competency in performing specific privilege(s). The Medical Staff may supplement these Bylaws with policies, for approval by the Medical Executive Committee and the Governing Body,that will clearly define the circumstances when a focused evaluation will occur, what criteria and methods should be used for conducting the focused evaluation, the duration of the evaluation period, requirements for extending the evaluation period, and how the information gathered during the evaluation processwill be analyzed and communicated. COMMENT:The above Section is a general statement summarizing the detail that should be included in any supplemental FPPE policies. 7.4-2 Information for a focused evaluation process may be gathered through a variety of measures including, but not limited to: a. Retrospective or concurrent chart review; b. Monitoring clinical practice patterns; c. Simulation; d. External peer review; / e. Discussion with other individuals involved in the care of each patient; f. Proctoring, as morefully described at Bylaws, Section 7.4-4, below. 7.4-3 A Focused Professional Practice Evaluation shall be usedin at least the following situations: a. All initial appointees to the Medical Staff and all members granted newprivileges shall be subject to a period of focused professional practice evaluation in accordance with these Bylaws[and the Rules of the departmentin which the applicant or memberwill be exercising those privileges]. Such focused evaluation will generally include a period of Level I proctoring in accordance with Bylaws, Section 7.4-4(a), below, unless additional circumstances appear to warranta higher level of proctoring, as described below. b. In special instances, focused evaluation will be imposed as a condition of renewal of privileges (for example, when a memberrequests renewalof a privilege that has been performed so infrequently thatit is difficult to assess the member’s current competency in that area). Such evaluation will generally consist of Level I proctoring in accordance with Bylaws, Section Section 7.4-4(a)() below, unless additional circumstances appearto warrant a higher proctoring level, as described below. c. When questionsarise regarding a practitioner’s competencyin performing specific privilege(s) at the hospital as a result of specific concerns or circumstances, a focused evaluation may be imposed. Such evaluations may include either Level II or III proctoring, in accordance with these Bylaws, Sections Section 7.4-4(a)(4) or (2). d. As otherwise defined in these Bylawsor applicable Focused Professional Practice Evaluation policies. 39 CHA Model Medical Staff Bylaws 2011 e. Nothing in the foregoing precludes the use of other Focused Professional Practice Evaluation tools, in addition to orin lieu of proctoring, as deemed warranted by the circumstances. COMMENT:The hospital policy regarding FPPE’swill likely include more detail as to the typesofsituations that may trigger FPPE. These mayinclude unexpected deaths, unexpected complications, severe drug reactions, severe transfusion reactions, sentinel events, certain compensable events identified by the risk manager, all cases in which a letter of intent has beenfiled, written patient complaints concerning members or AHPs,staff reports of concern, utilization issues, etc. The policy should provide that whenever FPPEis imposedas a result of a discretionary decision, that decision must be madebyan officer or committee of the Medical Staff. 7.4-4 Proctoring a. Overview of Proctoring Levels 1. Level I proctoring shall be considered routine and is generally implemented as a means to review initially requested privileges in accordance with Bylaws, Section '7,.4-3(a), above, and for review of infrequently used privileges in accordance with Bylaws, Section 7.4-3(b), above. 2. Level II proctoring is appropriate in situations where a practitioner’s competency or performanceis called into question, in accordance with Bylaws, Section 7.4- 3(c), above, but where the circumstances do not involve a “medical disciplinary” cause or reason or where the proctoring does not constitute a restriction on the practitioner’s privilege(s) (i.e., the practitioner is required to participate in proctoring, andto notify either the proctor or other designated individual(s) prior to providing services, but is permitted to proceed without the proctorif one is not available). 3. LevelIII proctoring is appropriate in situations wherea practitioner’s competency or performanceis called into question due to a “medical disciplinary” cause or reason in accordance with Bylaws, Section 7.4-3(c), above, and where the form of proctoringis a restriction on the practitioner’s privilege(s) (because the practitioner may not perform a procedure or provide care in the absenceofthe proctor). Upon imposition of Level III proctoring, that practitioneris afforded such procedural rights as provided at Bylaws, Article 14, Hearings and Appellate Reviews. b. Overview of Proctoring Procedures 1. Wheneverproctoring is imposed, the number(or duration) and types of proceduresto be proctored shall be delineated. 2. During the proctoring, the practitioners must demonstrate they are qualified to exercise the privileges that were granted and are carrying out the duties of their MedicalStaff category. 3. In the event that the new applicanthasprivileges at a neighboring hospital where membersof this hospital’s Medical Staff are familiar with the memberto be proctored, and familiar with that neighboring hospital’s peer review standards, privileging and proctoring information from the neighboring hospital may,at the discretion of [the appropriate Department Chair], be acceptable to satisfy a portion of the focused professionalpractice evaluation required for this hospital. c. Proctor: Scope of Responsibility 40 CHA Model Medical Staff Bylaws 2011 1. All members whoact as proctors of new appointees and/or membersofthe Medical Staff are acting at the direction of and as an agentfor /the department], the Medical Executive Committee and the Governing Body. When possible, no businessrelationship shall exist between proctor and proctoree. 2. The intervention of a proctor shall be governedbythe following guidelines: i, A memberwhois serving as a proctor does not act as a supervisor of the memberor practitioner heor she is observing. His or her role is to observe and record the performance of the memberor 41 CHA Mcdel Medical Staff Bylaws 2011 practitioner being proctored, and reporthis or her evaluation to the [department and/or the Credentials Committee]. ii, A proctor is not mandated to intervene when heor she observes what could be construed as deficient performance on the partof the practitioner or member being proctored. iii. In an emergencysituation, a proctor may intervene, even though heor she has no legal obligation to do so. d. Completion of Proctoring The membershall remain subject to such proctoring until the Medical Executive Committee has been furnished with: 1. Areport signed by(the Chair of the departmentto which the memberis assigned] describing the types and numbersof cases observed andthe evaluation of the member’s performance, a statement that the member appears to meetall of the qualifications for unsupervised practice in the hospital, has dischargedall of the responsibilities of Medical Staff membership, and has not exceeded or abused the prerogatives of the category to which the appointment was made; and 2. [A report signed by the Chair of such other department(s) in which the member may exercise clinical privileges, describing the types and number of cases observed and the evaluation of the member's performance and a statement that the memberhas satisfactorily demonstrated the ability to exercise the clinical privileges initially granted in those departments.] e. Effect of Failure to Complete Proctoring 1. Failure to Complete Necessary Volume. Any practitioner or member undergoing Level I or Level II proctoring whofails to complete the required number of proctored cases within the time frameestablished in the Bylaws and Rules shall be deemedto have voluntarily withdrawn his or her request for membership (or the relevant privileges), and he or she shall not be afforded the proceduralrights provided in Bylaws, Article 14, Hearings and Appellate Reviews. However,[the department] [other responsible official or committee] has the discretion to extend the time for completion of proctoring in appropriate cases subject to ratification by the Medical Executive Committee. The inability to obtain such an extension shall not give rise to procedural rights described in Bylaws, Article 14, Hearings and Appellate Reviews. 2. Failure to Satisfactorily Complete Proctoring. If a practitioner completes the necessary volumeof proctoredcases butfails to perform satisfactorily during proctoring, he or she may be terminated(or the relevant privileges may be revoked), and he or she shall be afforded the procedural rights as provided in Bylaws, Article 14, Hearings and Appellate Reviews. A recent case, Bode v. Los Angeles Metropolitan Medical Center, 174 Cal. App. 4th 1224 (2009), held that once privileges have been granted, even if subject to proctoring, the individualis no longer deemed an applicant. COMMENT: Recommendedclarification of proceduralrights for those who have not successfully completed proctoring. 3. Effect on Advancement. Thefailure to complete proctoring for any specific privilege shall not, by itself, preclude advancementfrom provisionalstaff. If advancementis approved prior to completion of proctoring, the proctoring will 42 CHA Model Medical Staff Bylaws 2011 continue for the specified privileges. The specific privileges may be voluntarily relinquished or terminated, pursuant to Bylaws, Section 7.4-4(e)(1) or (2), if proctoring is not completed thereafter within a reasonable time. 43 CHA Model MedicalStaff Bylaws | 2011 Article 8 Medical Staff Officers (and Medical Director) 8.1 Medical Staff Officers — General Provisions 8.1-1 Identification a. There shall be the following generalofficers of the MedicalStaff: 1. Chief of Staff 2. Vice Chiefof Staff 3. Secretary-Treasurer b. In addition, the Medical Staffs [department and section] officers and Committee Chairs shall be deemed Medical Staff officers within the meaning of California law. 8.1-2 Qualifications All Medical Staff officers shall: a. Understand the purposes and functions of the Medical Staff and demonstrate willingness to assure that patient welfare always takes precedence over other concerns; b. Understand andbewilling to work toward attaining the hospital’s lawful and reasonable policies and requirements; c. Have administrative ability as applicable to the respective office; d. Be able to work with and motivate others to achieve the objectives of the Medical Staff and hospital; e. Demonstrate clinical competencein his or herfield of practice; ‘f. Be an active Medical Staff member (and remain in good standingas an active Medical Staff memberwhile in office); and g. Not have anysignificant conflict of interest. 8:1-3 Disclosure of Conflict of Interest a. All nomineesfor election or appointment to MedicalStaff offices (including those nominated by petition of the Medical Staff pursuant to Bylaws, Section 8.2-3) shall, at least 20 dayspriorto the dateof election or appointment, disclose in writing to the Medical Executive Committee those personal, professional, or financial affiliations or relationships of which they are reasonably aware that could foreseeably result in a conflict of interest with their activities or responsibilities on behalf of the Medical Staff. Generally, a conflict of interest arises when there is a divergence between an individual’s private interests and his/her professional obligations, such that an independentobserver might reasonably question whether the individual’s professional actions or decisions are determined by those private interests. A conflict of interest depends onthe situation and not on the character of the individual. The fact that an individual practices in the samespecialty as a practitioner whois being reviewed doesnotbyitself create a conflict of interest. The evaluation of whether a 44 CHA Model MedicalStaff Bylaws 2011 conflict of interest exists shall be interpreted reasonably by the persons involved,tak- ing into consideration commonsense and objective principles of fairness. The Medical Executive Committee shall evaluate the significance of such disclosures and discuss any significant conflicts with the nominee. If a nominee with significant conflict remains on the ballot, the nature of his or her conflict shall be disclosed in writing and circulated with the ballot. b. [A person nominated from the floor shall be askedto verbally disclose conflicts to those in attendance at the meeting, and the Medical Executive Committee orits representative shall have an opportunity to comment thereon, prior to the vote.] COMMENT: Recommendedclarification of conflict of interest parameters. This is an important disclosure since conflicts of interest.can sway decision making and, in someinstances(e.g., when the officer automatically becomes a Governing Body member), may result in disqualification from voting on issues before the body. Significant or pervasive conflicts can impair an officer’s effectiveness. Include Section 8.1-3(b), Disclosure of Conflict of Interest, if nominations are permitted from the floor. 8.2 Method of Selection — General Officers COMMENT:Twooptions are presented: Vice Chief of Staff becoming Chief of Staff, and direct election of the Chiefof Staff. Accession of the Vice Chief helps to assure better continuity and preparation for the responsibilities of the position, but it requires a longer commitment. [Option 1] 8.2-1 [Succession of Vice Chief of Staff to Chief of Staff] [The Vice Chief of Staff shall accede to the position of Chief of Staff upon the Chief of Staff's completion of his or her term.] 8.2-2 [Nominating Committee] [An ad hoc nominating committee composedofthe Chief of Staff, two staff members elected by the Medical Executive Committee, and two staff members appointed by the Chief of Staff shall develop a slate of candidates meeting the qualifications of office, as described in Bylaws, Section 8.1-2, above. This slate shall be developedat least 45 days prior to the scheduled election. At least one candidate shall be nominatedfor each of the following positions:] a. [Vice Chief of Staff and] b. [Secretary-Treasurer] [Option 2] . 8.2-1 [Nominating Committee] [An ad hoc nominating committee composedof the Chief of Staff, two staff members elected by the Medical Executive Committee, and two staff members appointed by the Chief of Staff shall develop a Slate of candidates meeting the qualifications of office, as described in Bylaws, Section 8.1-2, above. This slate shall be developedat least 45 days prior fo the scheduled election. At least one candidate shall be nominated for each ofthe following positions:] a. [Chief of Staff] b. [Vice Chief of Staff, and] c. [Secretary-Treasurer] 45 CHA Model Medical Staff Bylaws 2011 COMMENT:Jf Option 2 is selected, Section 8.2-3 through 8.2-6 must be renumbered. 8.2-3 Nomination by Petition The Medical Staff may nominate candidates for office by a petition signed by at least ten members whoareeligible to vote and a statement from the candidate signifying . willingness to run. Such nominations mustbe received by the Chiefof Staff at least 30 days prior to the scheduledelections. 8.2-4 [Governing Body Review] COMMENT: Somehospitals provide for Governing Body input into the selection process. This approachis based upon the premise that Medical Staffofficers playcritical roles in the smooth functioning of the hospital, and the Governing Body should therefore haveinputinto this key selection process. However, with the adoption of Business & Professions Code Section 2282.5, this provision was modified to provide for Governing Body review and comment, rather than approval. If the Governing Body wiil not be commenting on the selection of candidates, then Bylaws, Section 8.2-4, Governing Body Review, should be eliminated, and Bylaws, Section 8.2-5, Election, should be renumbered. [The slate of candidates (including those nominated by petition), together with the disclosure information provided pursuant to Bylaws, Section 8.1-3, will be presented fo the Governing Body for its review and comment. The Governing Body may issue written comments about any orall candidates, which comments must be communicated to ail voting Medical Staff prior to the election.) 8.2-5 Election The election shall be by mail ballot, and the outcomeshall be determined by a majority of the votes cast by mail ballots that are returned to the MedicalStaff office within 15 days after the ballots were mailed to the voting Medical Staff members. 8.2-6 Term ofOffice a. Officers shall be elected in thefall of odd-numbered years and shall take office the following January. b. The term of office shall be two years. No officer shall serve consecutive termsin the same position. COMMENT: Two-year terms are recommendedto build skills and continuity of leadership, 8.3 Recall of Officers A general Medical Staff Officer may be recalled from office for any valid cause including, but not limited to, failure to carry out the duties of his or her office. Except as otherwise provided, recall of a general Medical Staff Officer may be initiated by the Medical Executive Committee or by a petition signed by at least 33-1/3 percent of the Medical Staff members. eligible to vote for officers; but recall itself shall require a 66-2/3 percent vote of the Medical Executive Committee or 66-2/3 percent vote of the Medical Staff memberseligible to vote for general Medical Staff Officers. 8.4 Filling Vacancies Vacancies created by resignation, removal, death, or disability shall befilled as follows: 8.4-1 A vacancyin the office of Chief of Staff shall befilled by the Vice Chiefof Staff. 46 CHA Medel Medical Staff Bylaws 2011 8.4-2 A vacancyin the office of Vice Chief of Staff shall be filled by special election held in general accordance with Bylaws, Section 8.2, page 64. 8.4-3 A vacancyin the office of secretary-treasurershall befilled by appointmentby the Medical Executive Committee. 8.5 Duties of Officers 8.5-1 Chief of Staff The Chief of Staff shall serve as the chief officer of the Medical Staff. The duties of the Chief of Staff shall include, but not be limited to: a. Enforcing the Medical Staff Bylaws and Rules, promoting quality of care, implementing sanctions when indicated, and promoting compliance with procedural safeguards when corrective action has been requestedor initiated; b, Calling, presiding at, and being responsible for the agendaofall meetingsof the Medical Staff; c. Serving as Chair of the Medical Executive Committee, and in that capacity shall be deemedtheindividual responsible for the organization and conductof the Medical Staff; COMMENT:Medicare Conditions of Participation, Section 482.22(b)(3) require that the responsibility for organization and conductof the Medical Staff must be assignedonly to an individual doctor of medicine or osteopathy. d. Serving as an ex officio memberofall other Staff committees without vote, unless his or her membershipin a particular committee is required by these Bylaws; e. Appointing, in consultation with the Medical Executive Committee, committee membersforall standing, ad hoc, and special Medical Staff, liaison, or multi- disciplinary committees except where otherwise provided by these Bylaws and, except where otherwise indicated, designating the Chairs of these committees; f. Being a spokesperson for the Medical Staff in external professional and public relations; _ g. Serving on liaison committees with the Governing Body and administration,as well as outside licensing or accreditation agencies; h. Appointing membersof the MedicalStaff to participate, as a MedicalStaffliaison, in the developmentof hospitalpolicies; COMMENT:Addedto assure compliance with 22 California Code of Regulations 70701(a)(9). i. Regularly reporting to the Governing Body on the performanceof MedicalStaff functions and communicating to the Medical Staff any concerns expressed by the Governing Body; j. In the interim between Medical Executive Committee meetings, performing those responsibilities of the committeethat, in his or her reasonable opinion, must be accomplishedpriorto the next regular or special meeting of the committee; 47 CHA Model Medical Staff Bylaws 2011 k. Interacting with the Chief Executive Officer and Governing Bodyin all matters of mutual concern within the hospital; |. Representing the views andpolicies of the Medical Staff to the Governing Body and to the Chief Executive Officer and serving as an ex-officio memberofthe Governing Body; m. Serving on the Joint Conference Committee; n. Being accountable to the Governing Body, in conjunction with the Medical Executive Committee, for the effective performance, by the Medical Staff, of its responsibilities with respect to quality and efficiencyof clinical services within the hospital and for the effectiveness of the quality assurance andutilization review programs; and o. Performing such other functions as may be assignedto him or her by these Bylaws, the Medical Staff or the Medical Executive Committee. 8.5-2 Vice Chief of Staff The Vice Chief of Staff shall assumeall duties and authority of the Chief of Staff in the absenceofthe Chief of Staff. The Vice Chief of Staff shall be a memberofthe Medical Executive Committee and of the Joint Conference Committee, and shall perform such other duties as the Chief of Staff may assign or as may be delegated by these Bylaws or the Medical Executive Committee. 8.5-3 Secretary-Treasurer The Secretary-Treasurer shall be a memberof the Medical Executive Committee. The duties shall include, but not be limited to: a. Maintaining a roster of members; b. Keeping accurate and complete minutesof all Medical Executive Committee and Medical Staff meetings; c. Calling meetings on the order of the Chief of Staff or Medical Executive Committee; d. Attending to correspondence andnotices on behalf of the MedicalStaff; e. Receiving and safeguardingall funds of the Medical Staff; f. Excusing absences from meetings on behalf of the Medical Executive Committee; and g. Performing such other duties as ordinarily pertain to theoffice or as may be assigned from time to time by the Chief of Staff or Medical Executive Committee. 8.6 [Chief Medical Officer] COMMENT:This section should be includedif the hospital has a Chief Medical Officer. 8.6-1 [Appointment] [The Chief Medical Officer shall be appointed by the Governing Body and approved by the Medical Executive Committee.] 8.6-2 [Responsibilities] a. [The Chief Medical Officers duties shall be delineated by the Governing Body in keeping with the general provisions set forth in subparagraph (b) below. The Medical Executive Committee approval shall be required for any Chief Medical Officer duties that relate to authority to perform 48 CHA Model Medical Staff Bylaws 2011 functions on behalf of the Medical Staff or directly affect the performanceoractivities of the Medical Staff] b. [In keeping with the foregoing, the Chief Medical Officer shall:] 1. [Serve as administrative liaison among hospital administration, the Governing Body, outside agencies and the Medical Staff;] 2. [Assist fhe Medical Staff in performing its assigned functions and coordinating such functions with the responsibilities and programs of the hospital; and] 3. [In cooperation and close consultation with the Chief of Staff and the Medical Executive Committee, supervise the day-to-day performance of the Medical Staff office and the hospital’s quality improvement personnel] 8.6-3 [Participation in Medical Staff Committees] {The Chief Medical Officer:] a. [Shall be an ex officio member—without vote—ofall Medical Staff Committees, except the Joint Conference Committee (whichthe Chief Medical Officer shall attend as a resource person) and any hearing committee.] b. [May attend any meeting of any departmentor section] - 49 CHA Model Medical Staff Bylaws 2011 Article 9 Committees COMMENT: Thereare a variety of ways to organize Medical Staff committees. Smaller hospitals havetraditionally minimized the numberof committees — sometimes assigning many,if notall, responsibilities to the Medical Executive Committee (MEC). Larger hospitals, on the other hand, havetraditionally had many committees, with each assigned responsibility to perform distinct functions of the Medical Staff. Nondepartmentalized hospitals necessarily need a different structure. A trend is emerging to consolidate committee functions to achieve betterefficiency and integration. These Bylaws and the Rules present one such approach — namely assigning most responsibility for peer review to the departments, reducing the number of Medical Staff-wide committees, and consolidating most performance improvement committee activities under the auspices of a Medical Staff-wide Quality Improvement Committee. The mostimportant consideration when designing committee structure is assuring that all required Medical Staff functions are assigned fo one or more committees. The Bylaws or Rules must specify for each committee the committee’s composition, minimum meeting frequency and the voting rights of all members, keeping in mind thatex officio members are presumed to have voting rights unless otherwise specified. These Bylaws and Rules are consistent with the growing trend toward encouraging greaterflexibility in the committee structure by having only the MEC and Joint Conference Committee described in the Bylaws and all other committees described in the Rules. General provisions applicable to all committees are described in the Bylaws. 9.1 General 9.1-1 Designation The Medical Executive Committee and the other committees described in these Bylaws and the Rules shall be the standing committees of the Medical Staff. Special or ad hoc committees maybe created by the Medical Executive Committee for a department] to perform specified tasks. Any committee — whether Medical Staff-wide or {departmentor] otherclinical unit, or standing or ad hoc — that is carrying outall or any portion of a function or activity required by these Bylaws is deemed a duly appointed and authorized committee of the Medical Staff. 9.1-2 Appointment of Members a. Unless otherwise specified, the Chair and membersofall committees shall be appointed by, and may be removedby, the Chiefof Staff, subject to consultation with and approval by the Medical Executive Committee. Medical Staff committees shall be responsible to the Medical Executive Committee. b. A Medical Staff committee created in these Bylaws is composedasstated in the description of the committee in these Bylaws or the Rules. Except as otherwise provided in the Bylaws, committees established to perform Medical Staff functions required by these Bylaws mayinclude any category of Medical Staff members; Allied Health Professionals; representatives from hospital departments such as administration, nursing services, or health information services; representatives of the community; and persons with special expertise, depending upon the functionsto be discharged. Each Medical Staff member whoserves on a committee participates with votes unless the statement of committee composition designates the position as nonvoting. c. The Chief Executive Officer, or his or her designee, in consultation with the Chief of Staff, shall appoint any non-Medical Staff members who serve in non-exofficio capacities. , 50 CHA Model Medical Staff Bylaws 2011 d. The Committee Chair, after consulting with the Chief of Staff and Chief Executive Officer, may call on outside consultants or special advisors. e. Each Committee Chair shall appoint a Vice Chair to fulfill the duties of the Chair in his or her absence andto assist as requested by the Chair. Each Committee Chair or other authorized person chairing a meeting hasthe right to discuss and to vote on issues presented to the committee. 9.1-3 Representation on Hospital Committees and Participation in Hospital Deliberations The Medical Staff may discharge its duties relating to accreditation, licensure, certification, disaster planning, facility and services planning, financial management and physical plant safety by providing Medical Staff representation on hospital committees established to perform such functions. 9.1-4 Ex Officio Members The Chief of Staff and the Chief Executive Officer, or their respective designees [andthe Medical Director] are ex officio membersof all standing and special committees of the Medical Staff and shall serve with vote unless provided otherwise in the provision or resolution creating the committee. 9.1-5 Action Through Subcommittees Any standing committee may use subcommittees to help carry outits duties. The Medical Executive Committee shall be informed when a subcommittee is appointed. The Committee Chair may appoint individuals in addition to, or other than, members of the standing committee to the subcommittee after consulting with the Chief of Staff regarding Medical Staff members, and the Chief Executive Officer regarding hospital staff. 9.1-6 Terms and Removal of Committee Members Unless otherwise specified, a committee membershall be appointed for a term of fone year, two years], subject to unlimited renewal, and shall serve until the end of this period and until his or her successor is appointed, unless he or she shall soonerresign or be removed from the committee. Any committee memberwhois appointed by the Chief of Staff may be removed by a majority vote of the Medical Executive Committee. [Any committee member who is appointed by the Department Chair may be removed by a majority vote of his or her Department Committee or the Medical Executive Committee.] The removalof any committee member whois automatically assigned to a committee becauseheorsheis -a generalofficer or otherofficial shall be governed by the provisions pertaining to removal of such officeror official. 9.1-7 Vacancies Unless otherwise specified, vacancies on any committee shall be filled in the same manner in which an original appointment to such committee is made; provided however,that if an individual who obtains membership byvirtueof these Bylawsis removed for cause, a successor may beselected by the Medical Executive Committee. 9.1-8 Conduct and Records of Meetings Committee meetings shall be conducted and documented in the mannerspecified for such meeting in Bylaws, Article 11, Meetings. 9.1-9 Attendance of Nonmembers 51 CHA Model Medical Staff Bylaws 2011 Any Medical Staff member whois in good standing may ask the Chair of any committee for permission to attend a portion of that committee’s meeting dealing with a matter of importanceto that practitioner. The Committee Chair shall have the discretion to grant or deny the request and shall grant the request only if the member's attendance will reasonably aid the committee to perform its function. If the request is granted, the invited membershall abide by all Bylaws and Rules applicable to that committee. 9,1-10 Conflict of Interest a. In any instance where a Medical Staff memberhas or reasonably could be perceived to have a conflict of interest, as defined below, such individual shall not participate in the discussion or voting on the matter, and shall be excused from any meeting during that time. However, the individual with a conflict may be asked, and may answer, any questions concerning the matter before leaving. Any dispute over the existence of a conflict of interest shall be resolved by the chairperson of the committee,or,ifit cannot be resolved at that level, by the Chief of Staff. b. A conflict of interest arises when there is a divergence between an individual’s private interests and his/her professional obligations, such that an independent observer might reasonably question whether the individual’s professional actions or decisions are determined by thoseprivate interests. A conflict of interest depends on the situation and not on the characterofthe individual. The fact that an individual practices in the samespecialty as a practitioner whois being reviewed does not by itself create a conflict of interest. The evaluation of whethera conflict of interest exists shall be interpreted reasonably by the personsinvolved,taking into consideration commonsense and objective principles of fairness. The fact that a committee member or Medical Staff leader choosesto refrain from participation, or is excused from participation, shall not be interpreted as a finding of actual conflict. COMMENT: Recommendedto addressconflictissues generally, (Thisis in addition to the conflictofinterest disclosures required of candidatesfor Medical Staff office, per Section 8.1-3.) 9.1-11 Accountability All committees shall be accountable to the Medical Executive Committee. 9.2 Joint Conference Committee COMMENT:The Joint Commission (TJC) no longer requires a Joint Conference Committee, andit is not required by California or federal laws or regulations. However, many hospitals maintain the committee since it can help fulfill TIC requirement for a mechanism to assure effective communication among the Medical Staff, hospital administration and the Governing Body, anditfits well with TJC’s Shared Vision - New Pathways philosophy. Additionally, the Joint Conference Committee represents an effective forum for operationalizing the interdependenceofthe Medical Staff and Governing Body, and may also be an appropriate forum for the meet and confer provisions required by Business & Professions Code Section 2282.5 (see additional commentat Bylaws, Section 9.2-2, below). District hospitals and hospitals governed by the BrownAct should consider whetherthis committee will be subject to the Brown Act and revise this Section as needed to accommodate these considerations. 9.2-1 Composition The Joint Conference Committee shall be composedof feight} members:[the Chiefof Staff, the Vice Chief of Staff, the immediate-past Chief of Staff, the Secretary-Treasurer, three 52 CHA Model Medical Staff Bylaws 2011 members of the hospital’s Governing Body, and the Chief Executive Officer]. All members are voting members. The person serving as the Joint Conference Committee Chair shall alternate annually between the [Chief of Staff] and one of the Governing Body representatives. 9.2-2 Duties and Meeting Frequency a. This committee shall serve as a focal point for furthering an understandingof the roles, relationships, and responsibilities of the Governing Body, administration, and the Medical Staff. It may also serve as a forum for discussing any hospital matters regarding the provision of patient care. It shall meet at least quarterly or as often as necessary to fulfill its responsibilities. Any member of the committee shall have the authority to place matters on the agendafor consideration by the committee. b. The committee [shal//may] also serve as the initial forum for exercise of the meet and confer provisions contemplated by Bylaws,Section 15.7; provided, however, that upon request of at least four committee members (which four must be comprised of at least three Medical Staff representatives and one Governing Body representative, or of at least three Governing Body representatives and one Medical Staff representative), a neutral mediator, acceptable to both contingents, shall be engaged to assist in dispute resolution. COMMENT:Business & Professions Code Section 2282.5 requires the Medical Staff and Governing Body to meet and conferingoodfaith to resolve disputesarising underthat Section. The above provision could be used to accomplish this.Alternatively, the full Governing Body and the MEC is another appropriate forum for this meet and confer. Stil anotheralternative is to use the full Governing Body and the MEC only in the event the parties cannot reach an agreementin the Joint Conference Committee forum.Bylaws, Section 9.2-2(b), above, should furtherbe tailoredif either of theselatter alternatives is chosen. If either of these alternatives is chosen, furthertailoring of the MEC’s duties and responsibilities is recommended. 9.2-3 Accountability The Joint Conference Committeeis directly accountable to the Medical Executive Committee and to the Governing Body. 9.3 Medical Executive Committee 9.3-1 Composition The Medical Executive Committee shall be composedofthe MedicalStaff officerslisted in Bylaws, Article 8, Medical Staff Officers (and Medical Director), at least one at-large representative, /the Chief Medical Officer as an ex officio memberwithout vote, and (insert others who will be Medical Executive Committee members)]. The Chief Executive Officer shall serve as an ex officio member. TheChief of Staff shall chair the Medical Executive Committee. A majority of the committee shall be physicians. COMMENT:Departmentalized hospitals may include the Department Chairs as members of the MEC;often, key Committee Chairs are also members(although both of these approachescanresult in a very large committee). Often the MECincludes one or moreat-large representatives as well. TJC requiresthatall membersof the MedicalStaff, including limited license practitioners, shall be eligible to be members of the MEC(an at-large position helps accommodatethis}, and that a majority of the members mustbe physicians (doctors of medicine or osteopathy) whoare actively practicing at the hospital. 53 CHA Model Medical Staff Bylaws 2011 9.3-2 Duties The Medical Staff delegates to the Medical Executive Committee broad authority to oversee the operations of the Medical Staff. With the assistanceofthe Chiefof Staff, and without limiting this broad delegation of authority, the Medical Executive Committee shall perform in goodfaith the dutieslisted below. a. Supervise the performanceof all Medical Staff functions, which shall include: 1. Requiring regular reports and recommendations from the (departments,] committees and officers of the Medical Staff concerning discharge of assigned functions; 2. Issuing such directives as appropriate to assureeffective performanceofall Medical Staff functions; and 3. Following up to assure implementation ofall directives. b. Coordinate theactivities of the committees fand departments]. c. Assure that the Medical Staff adopts Bylaws and Rules establishing the structure of the Medical Staff, the mechanism usedto review credentials and to delineate individual privileges, the organization of the quality assessment and improvement activities of the Medical Staff as well as the mechanism used to conduct, evaluate, and revise suchactivities, the mechanism by which membership on the MedicalStaff may be terminated, and the mechanism for hearing procedures. d. Based on input and reports from {the departments and the Credentials Committee], assure that the Medical Staff adopts Bylaws, Rules or regulations establishing criteria and standards, consistent with California law, for Medical Staff membership and privileges (including, but not limited to, any privileges that may be appropriately performed via telemedicine), and for enforcing those criteria and standards in reviewing the qualifications, credentials, performance, and professional competence and character of applicants and staff members. e. Assure that the Medical Staff adopt Bylaws, Rules or regulations establishingclinical criteria and standardsto oversee and manage quality assurance,utilization review, ~ and other Medical Staff activities including, but not limited to, periodic meetings of the Medical Staff and its committees fand departments] and review andanalysis of patient medical records. f. Evaluate the performanceof practitioners exercising clinical privileges whenever there is doubt about an applicant’s, member’s, or Allied Health Professional’s ability to perform requested privileges. g. Based uponinput from /the departments and Credentials Committee], make recommendations regardingall applications for Medical Staff appointment, reappointmentandprivileges. h. When indicated, initiate Focused Professional Practice Evaluations and/or pursue disciplinary or corrective actions affecting Medical Staff members. i. With the assistance of the Chief of Staff, supervise the Medical Staff's compliance with: 1. The Medical Staff Bylaws, Rules, and policies; 2. The hospital’s Bylaws, Rules, and policies; 54 CHA Model Medica! Staff Bylaws 2011 3. State and federal laws and regulations; and - 4. The Joint Commission accreditation requirements. j. Oversee the developmentof Medical Staff policies, approve (or disapprove) all such policies, and oversee the implementation ofall such policies. k. Implement,as it relates to the Medical Staff, the approved policies of the hospital. l. (With the Department Chairs,] set [departmental] objectives for establishing, maintaining and enforcing professional standards within the hospital and for the continuing improvementofthe quality of care rendered in the hospital; assist in developing programsto achieve these objectives including, but not limited to, Ongoing Professional Practice Evaluations, as further described at Bylaws,Article 7, PerformanceEvaluation and Monitoring. m. Regularly report to the Governing Body through the Chief of Staff and the Chief Executive Officer on at least the following: 1. The outcomes of Medical Staff quality improvement programswithsufficient background anddetail to assure the Governing Body that quality of careis consistent with professional standards; and 2. The general status of any Medical Staff disciplinary or corrective actions in progress. n. Review and make recommendationsto the Chief Executive Officer regarding quality of care issues related to exclusive contract arrangements for professional medical services. In addition, the Medical Executive Committee shall assist the hospital in reviewing andadvising on sourcesofclinical services provided by consultation, contractual arrangements or other agreements, in evaluating the levels of safety and quality of services provided via consultation, contractual arrangements, or other agreements, and in providing relevant input to notice-and-commentproceedings or other mechanisms that may be implemented by hospital administration in making exclusive contracting decisions. o. Prioritize and assure that hospital-sponsored educational programsincorporate the recommendations and results of Medical Staff quality assessment and improvement activities. p. Establish, as necessary, such ad hoc committees thatwill fulfill particular functions for a limited time andwill report directly to the Medical Executive Committee. q. Establish the date, place, time and program of the regular meetings of the Medical Staff. ‘ r. Represent and act on behalf of the Medical Staff between meetings of the Medical Staff. s. Take such other actions as may reasonably be deemed necessary in the best interests of the Medical Staff and the hospital. The authority delegated pursuantto this Section 9.3-2 may be removed by amendment of these Bylawsf, or by Resolution of thé Medical Staff, anproved by a 2/3 vote of the voting Medical Staff, taken af a general or special meeting noticed to include the specific purpose of removing specifically-described authority of the Medical Executive Committee]. 55 CHA ModelMedicalStaff Bylaws 2011 COMMENT: TJC Standard MS.01.01.01, EP 20 requires that the Medical Staff Bylaws describe the authority delegated to the MEC, and howthatauthority is delegated or removed. We recommenda broad and general grantof authority, becauseit is simply not possible to foresee and describe every occasion or circumstance that may necessitate MEC decision making; and because a narrow grantof authority will likely lead to constant challenges and unnecessary undermining of respect for the MEC’s important role.The revised wording at Section 9.3-2(0), above,is to address TJC Standard MS.12.01.01, EP 1. 9.3-3 Meetings The Medical Executive should be scheduled to meet on a monthly basis and shall meet at least [70] times during the calendar year. A permanentrecord of its proceedings and actions shall be maintained. COMMENT:Thefrequency of meetings will depend on the size and complexity of the Medical Staff organization. However, the MEC should meetfrequently enough to assurethe timely performance of responsibilities, including the timely flow ofinformation and recommendations to the Governing Body. 56 CHA Model MedicalStaff Bylaws 20114 Article 10 Departments and sections COMMENT: Thefollowing provisions apply for departmentalized Medical Staffs. Some hospitals (especially larger ones) have many departments, while smaller hospitals mayeliminate departmentsaltogether.If the Medical Staffis not organized into departments, this Article 10 should be deleted and the Medical Staff should evaluate whetherfunctions described here to be performed by the departments should be assigned to a Medical Staff Committee. 10.1 Organization of Clinical Departments Each department shall be organized as an integral unit of the Medical Staff and shall have a Chair and a Vice Chair whoare selected and shall have the authority, duties, and responsibilities specified in the Rules. Additionally, each department may appoint a Department Committee and such other standing or Ad Hoc Committees as it deems appropriate to perform its required functions. The composition and responsibilities of each standing Department Committee shall be specified in the Rules. Departments mayalso form sections as described below. 10.2 Designation 10.2-1 Current Designation The current departmentsare: Check all applicable departments OiAnesthesia OEmergency OiMedicine QOObstetrics and Gynecology (Pathology O)Pediatrics OiPsychiatry Oi Radiology OiSurgery COMMENT:The abovelist is notall-inclusive; hospitals may expand or contract the numberof departments, as deemed appropriate fo the size and servicesof the hospital. 10.2-2 Future Departments 57 CHA Model Medical Staff Bylaws 2011 The Medical Executive Committee will periodically restudy the designation of the departments and recommendto the Governing Body whataction is desirable in creating, eliminating, or combining departmentsfor better organizational efficiency and improvedpatient care. Action shall be effective upon approval by the Medical Executive Committee and the Governing Body. 10.3 Assignment to Departments Each membershall be assigned membershipin at least one department, but may also be granted membership and/orclinical privileges in other departments consistent with the practice privileges granted. 10.4 Functions of Departments The departments shallfulfill the clinical, administrative, quality improvement/risk management/utilization management, and collegial and education functions described in the Rules. When the departmentor anyof its committees meets to carry out the duties described below, the meeting body shall constitute a peer review committee, which is subject to the standards andentitled to the protections and immunities afforded by federal and state law for peer review committees. Each departmentor its committees, if any, must meet regularly to carry out its duties. 10.5 Department Chair and Vice Chair 10.5-1 Qualifications Each Department Chair and DepartmentVice Chair shall be active MedicalStaff members, shall have demonstrated ability in at least one of the clinical areas covered by the department, shall be Board certified, and shall be willing and able to faithfully discharge the functionsof his or heroffice. Specific qualifications shall beset forth in the Rules. COMMENT: Recommendedto help assure compliance with California hospitallicensing regulations relating to the qualifications of clinical service/departmentchiefs. 10.5-2 Selection Departmentofficers shall be elected by a majority of the votes cast by the voting Medical Staff members of the department. Candidates shall be selected by the nominating and elections procedures described in the Rules. 10.5-3 Term of Office Each Department Chair and Vice Chair shall serve a two-year term,the expiration of which coincides with the Medical Staff year or until their successors are chosen, unless they shall sooner resign, be removedfrom office, or lose their Medical Staff membershiporprivileges in that department. Departmentofficers are eligible to succeed themselves. 10.5-4 Removal A department officer may be removedforfailure to cooperatively and effectively perform the responsibilities of his or her office. Removal may beinitiated by the Medical Executive Committee or by written request from 20 percent of the members of the department whoareeligible to vote on department matters. Such removal may be effected by a 66-2/3 percent vote of the Medical Executive Committee members or by a 58 CHA Model Medical Staff Bylaws 2071 66-2/3 percent vote of the department memberseligible to vote on department matters. The proceduresfor effecting removalshall be as describedin the Rules. 10.5-5 Roles and Responsibilities of Department Officers Specific roles and responsibilities of departmentofficers shall be as set forth in the Rules. These roles and responsibilities includeat least the following:* a. Clinically related activities of the department. b. Administratively related activities of the department, unless otherwise provided by the hospital. c. Continuing surveillance of the professional performanceof all individuals in the department who have delineatedclinicalprivileges. d. Recommending to the medicalstaff the criteria for clinical privileges that are relevant to the care provided in the department. e. Recommendingclinical privileges for each memberof the department. f. Assessing and recommendingto the relevant hospital authority off-site sources for needed patient care, treatment, and services not provided by the departmentor the organization. g. Integration of the departmentorservice into the primary functions of the organization. h. Coordination and integration of interdepartmental and intradepartmental services. i. Development and implementation of policies and procedures that guide and support the provision of care, treatment, and services. j. Recommendationsfor a sufficient numberof qualified and competent personsto provide care, treatment, and services. k. Determination ofthe qualifications and competence of departmentorservice personnel whoare not licensed independentpractitioners and who provide patient care, treatment, and services. 1. Continuous assessment and improvementofthe quality of care, treatment, and services. m. Maintenance of quality control programs, as appropriate. n. Orientation and continuing educationof all persons in the department - COMMENT: *MS.01.01.01, EP 3, provides that the requirements of EP 36 mustbe stated in the Bylaws. The above paragraphs (a) through (n) accomplish this. 10.6 Sections COMMENT:Bylaws, Section 10.6 is applicable only in a departmentalized Medical Staff that has further subdivideditself into sections. Within each department, the practitioners of the various specialty groups may organize themselves as a clinical section. Each section may develop Rules specifying the purpose, 59 CHA Model Medical Staff Bylaws | 2011 responsibilities and methodofselecting officers. These Rules shall be effective when approved as required by Bylaws,Article 15, General Provisions. While sections mayassist departments in performance of departmental functions, responsibility and accountability for performance of departmental functions shall remain at the departmentallevel. 60 CHA Model Medical Staff Bylaws 2011 Article 11 Meetings 11.1 Medical Staff Meetings 11.1-1 Medical Staff Meetings Thereshall be at least one meeting of the MedicalStaff during each Medical Staff year. The date, place and time of the meeting(s) shall be determined by the ChiefofStaff. The Chief of Staff shall present a report on significant actions taken by the Medical Executive Committee during the time since the last Medical Staff meeting and on other matters believed to be of interest and value to the membership. No businessshall be transacted at any Medical Staff meeting except that stated in the noticecalling the meeting. 11.1-2 Special Meetings Special meetings of the Medical Staff may be called at any time by the Chief of Staff, Medical Executive Committee, or Governing Body, or upon the written request of 10 percent of the voting members. The meeting mustbe called within 30 days after receipt of such request. No business shall be transacted at any special meeting except that stated in the notice calling the meeting. 11.1-3 Combined or Joint Medical Staff Meetings The Medical Staff may participate in combinedorjoint Medical Staff meetings with staff members from other hospitals, health care entities, or the County Medical Society; however, precautionsshall be taken to assure that confidential Medical Staff information is not inappropriately disclosed, and to assure that this Medical Staff (through its authorized representative(s)) maintains access to, and approval authority of, all minutes prepared in conjunction with any such meetings. 11.2 [Department and] Committee Meetings 11.2-1 Regular Meetings (Departments and] committees, by resolution, may provide the timefor holding regular meetings and no notice other than such resolution shall then be required. [Each department shall meet regularly, at least quarterly, to review and discuss patient care activities and to fulfill other departmental responsibilities.] 11.2-2 Special Meetings A special meeting of any [department or] committee maybecalled by,or at the request of, the Chair therecf, the Medical Executive Committee, Chief of Staff, or by [33-1/3] percent of the group’s current members, but not fewer than three members. No business shall be transacted at any special meeting except that stated in the notice calling the meeting. 11.2-3 Combined or Joint [Department or] Committee Meetings 61 The {departments or] committees may participate in combinedorjoint [departmentor] committee meetings with staff members from other hospitals, health care entities or the County Medical Society; however, precautions shall be taken to assure that confidential Medical Staff information is not inappropriately disclosed, and to assure that this Medical Staff (through its authorized representative(s)) maintains access to, and approval authority of, all minutes prepared in conjunction with any such meetings. CHA Model Medical Staff Bylaws 2011 11.3 Notice of Meetings Written notice stating the place, day and hourof any regular or special Medical Staff meeting or of any regular or special fdepartment or] committee meeting not held pursuantto resolution shall be delivered either personally or by mail to each person entitled to be present not fewer than [two] working days nor more than [45] days before the date of such meeting. Personal attendance at a meeting shall constitute a waiver of notice of such meeting. 11.4 Quorum COMMENT:The attendance requirementfor establishing a quorum should not be unrealistic. 11.4-1 Medical Staff Meetings The presenceof /25] percentof the voting Medical Staff membersat any regular or special meeting shall constitute a quorum. 11.4-2 Committee Meetings The presence of /50] percent of the voting membersshall be required for Medical Executive Committee meetings. For other committees, a quorum shall consist of /30] percent of the voting members of a committee but in no eventless than three voting committee members. 11.4-3 [Department Meetings] [The presence of [25] percent of the voting Medical Staff members at any regular or special department meeting shall constitute a quorum.] 11.5 Mannerof Action Except as otherwise specified, the action of a majority of the memberspresent and votingat a meeting at which a quorumis presentshall be the action of the group. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of members,if any action taken is approved byat least a majority of the required quorum for such meeting, or such greater numberas may be required by these Bylaws. Committee action may be conducted by telephoneor internet conference, which shall be deemed to constitute a meeting for the matters discussed in that telephoneorinternet conference. Valid action may be taken without a meetingif at least [10] days notice of the proposed action has been given to all membersentitled to vote, and it is subsequently ~ approvedin writing setting forth the action so taken, whichis signed byat least /66-2/3] percent of the membersentitled to vote. The meeting chairshall refrain from voting except when necessary to breaka tie, except that the Joint Conference Committee Chair may vote. COMMENT: Amended to accommodate internet conference meetings. 11.6 Minutes Minutesof all meetings shall be prepared andshall include a recordofthe attendance of membersand the vote taken on each matter. The minutesshall be signed by the presiding officer or his or her designee and forwarded to the Medical Executive Committee or other designated committee and Governing Body. Each committee shall maintain a permanentfile of the minutes of each meeting. When meetings are held with outside entities, access to minutes shall be limited as necessary to preserve the protections from discovery, as provided by California law. 62 CHA Model Medical Staff Bylaws 2011 11.7 Attendance Requirements COMMENT:There are no legal or accreditation standards setting specific attendance requirements for meetings. However, The Joint Commission requires that the Bylaws state the Medical Staff's requirements for frequency of meetings and for attendance. Also, reasonable attendance standards provide an excellent meansfor achieving broad participation of Medical Staff membersin Medical Staff and departmentactivities. 11.7-1 Regular Attendance Requirements Each memberof a MedicalStaff category required to attend meetings underRule 1.3, Prerogatives and Responsibilities, shall be required to attend [two] general staff meetingsfand[six] departmentor section meetings] during the two-year reappointment period. 11.7-2 Failure to Meet Attendance Requirements Medical Staff memberswill be notified semi-annually if they have not yet met thefull attendance requirements. Practitioners who have not met meeting attendance requirements before the end of the appointment/reappointmentperiod will be reappointed for a maximum of twoyears on probationary status. Practitioners who do not meet the meeting attendance requirements during the reappointmentperiodwill [be demotedin status] [not be reappointed]. 11.7-3 Special Appearance A committee, at its discretion, may require the appearanceofa practitioner during a review ofthe clinical course of treatment regarding a patient. If possible, the Chair of the meeting should give the practitioner at least 10 days advance written notice ofthe time and place of the meeting. In addition, whenever an appearanceis requested because of an apparent or suspected deviation from standardclinical practice, special notice shall be given and shall include a statementof the issue involved andthat the practitioner’s appearance is mandatory. Failure of a practitioner to appearat any meeting with respect to which heor she wasgiven special notice shall (unless excused by the Medical Executive Committee upon a showing of good cause) result in an automatic suspension ofthe practitioner’s privileges for at least two weeks, or such longer period as the Medical Executive Committee deems appropriate. The practitioner shall be entitled to the procedural rights described in Bylaws, Article 14, Hearings and Appellate Reviews. 11.8 Conduct of Meetings . Unless otherwise specified, meetings shall be conducted according to [Robert's Rules of Order; however, technical failures to follow such rules shall notinvalidate action taken at such a meeting. COMMENT:Other sourcesof parliamentary procedureare: Sturgis, Standard Code of Parliamentary Procedure and Parliamentary Procedure at a Glance. 63 CHA Model Medical Staff Bylaws | 2011 Article 12 Contidentiality, Immunity, Releases and Indemnification 12.1 General Medical Staff, fdepartment, section] or committee minutes, files and records — including information regarding any memberor applicant to this Medical Staff — shall, to the fullest extent permitted by law, be confidential. Such confidentiality shall also extend to information oflike kind that may be provided by third parties. This information shall becomea part of the Medical Staff committeefiles and shall not becomepart of any particular patient’s file or of the general hospital records. Dissemination of such information and records shall be madeonly where expressly required by law or as otherwise provided in these Bylaws. 12.2 Breach of Confidentiality Inasmuchaseffective credentialing, quality improvement, peer review and consideration of the qualifications of Medical Staff members and applicants to perform specific procedures must be based on free and candid discussions, and inasmuchaspractitioners and others participate in credentialing, quality improvement, and peerreview activities with the ’ reasonable expectationsthatthis confidentiality will be preserved and maintained, any breach of confidentiality of the discussionsor deliberations of Medical Staff fdepartments, sections, or] commaittees, except in conjunction with another /system member] health facility, professionalsociety or licensing authority for peer review activities, is outside appropriate standards of conductfor this Medical Staff and will be deemed disruptive to the operations of the hospital. If it is determined that such a breach has occurred, the Medical Executive Committee may undertake such corrective action as it deems appropriate. 12.3 Access to and Release of Confidential Information 12.3-1 Access for Official Purposes Medical Staff records, including confidential committee records and credentialsfiles, shall be accessible by: a. Committee members, and their authorized representatives, for the purpose of conducting authorized committee functions. b. MedicalStaff fand department] officials, and their authorized representatives, for the purposeoffulfilling any authorized function of suchofficial. c. The Chief Executive Officer, the Governing Body, and their authorized representatives, for the purpose of enabling them to discharge their lawful obligations and responsibilities. d. [Upon approvalof the Chief Executive Officer and Chief of Staff, the peer review bodies of - System Affiliates, as reasonably necessaryto facilitate review of an applicant or member of such Alfiliate’s professional staff.] 64 CHA Model Medical Staff Bylaws 2011 e. Information whichis disclosed to the Governing Body or its appointed representatives and to peer review bodies of System Affiliates shall be maintained as confidential. 12.3-2 Member’s Access a. A Medical Staff membershall be granted access to his or her own credentialsfile, subject to the following provisions: 1. Notice of a requestto review thefile shall be given by the memberto the Chief of Staff (or his or her designee)at least three days before the requested date for review. 2, The member may review andreceive a copyofonly those documented, provided by or addressed personally to the member. A summary ofall other information, including peer review committee findings,letter of reference, proctoring reports, complaints,etc., shall be provided to the member, in writing, by the designated officer of the Medical Staff within a reasonable period of time (not to exceed two weeks). Such summary shall disclose the substance, but not the source, of the information summarized. 3. The review by the membershall take place in the MedicalStaffoffice, during normal work hours, with anofficer or designee of the Chief of Staff present. 4. In the event a Notice of Chargesis filed against a member, access to that member’s credentialsfile shall be governed by Bylaws, Section 14.6-9. | b. A member may be permitted to request correction of information as follows: 1. After review ofhisorherfile, a member may address to the Chief of Staff a written request for correction of informationin the credentialsfile. Such request shall include a statementofthe basis for the action requested. 2. The Chief of Staff shall review such a request within a reasonable time and shall recommendto the Medical Executive Committee whether to make the correction as requested, and the Medical Executive Committee shall makethefinal determination. 3. The membershall be notified promptly, in writing, of the decision of the Medical Executive Committee. 4. In any case, a membershall havetheright to addto his or her credentialsfile a statement responding to any information contained inthe file. Any such written statement shall be addressed to the Medical Executive Committee, and shall be placed in the credentials file immediately following review by the Medical Executive Committee. {2.4 Immunity and Releases 12.4-1 Immunity from Liability for Providing Information or Taking Action Each representative of the Medical Staff and hospital and all third parties shall be ex- empt from liability to an applicant, memberorpractitioner for damagesorotherrelief by reason of providing information to a representative of the Medical Staff, hospital, [system member] or any other health-related organization concerning such person who is, or has been, an applicant to or memberofthe Medical Staff or who did, or does, exercise privileges or provide services at this hospital or by reason of otherwise 65 CHA Model Medical Staff Bylaws 2011 participating in a MedicalStaff or hospital credentialing, quality improvement, or peer review activities. 12.4-2 Activities and Information Covered a. Activities The immunity provided by this Bylaws, Article 12, shall applytoall acts, communications, reports, recommendationsor disclosures performed or made in connection with this or any other health-related institution’s or organization’s activities concerning, but notlimitedto: 1. Applications for appointment,privileges, or specified services; 2. Periodic reappraisals for reappointment, privileges, or specified services; 3. Corrective action; 4. Hearings and appellate reviews; 5. Quality improvement review, including patient care audit; 6. Peer review; 7. Utilization reviews; 8. Morbidity and mortality conferences; and g. Otherhospital, fdepartment, section, or committee activities related to monitoring and improving the quality of patient care and appropriate professional conduct. b. Information The acts, communications, reports, recommendations, disclosures, and other information referred to in this Bylaws, Article 12, may relate to a practitioner’s professional qualifications,clinical ability, judgment, character, physical and mental health, emotionalstability, professional ethics or other matter that mightdirectly or indirectly affect patient care. 12.5 Releases Each practitioner shall, upon request of the hospital, execute general andspecific releases in accordance with the tenor and import of these Bylaws, Article 12; however, execution of such releases shall not be deemeda prerequisite to the effectiveness of these Bylaws,Article 12. 12.6 Cumulative Effect Provisions in these Bylaws and in Medical Staff application formsrelating to authorizations, confidentiality of information, and immunities from liability shall be in addition to other _ protections provided by law andnotin limitation thereof. 42.7 Indemnification The hospital shall indemnify, defend, and hold harmless the Medical Staff andits individual members (“Indemnitee(s)”) from and against losses and expenses (including reasonable attorneys’ fees, judgments, settlements, andall other costs, direct or indirect) incurred or suffered by reason of or based upon any threatened, pending or completed action,suit, proceeding, investigation, or other dispute relating or pertaining to anyalleged act orfailure to act within the scope of peer review or quality assessmentactivities including, but not limitedto: 66 CHA Model Medical Staff Bylaws 2011 a. AS a memberof or witness for a Medical Staff, (department, service,] committee, or hearing committee; b. As a memberofor witness for the hospital Governing Body or any hospital task force, group or committee; and c. As a person providing information to any Medical Staff or hospital group,officer, Governing Body memberor employeefor the purposeof aiding in the evaluation of the qualifications, fitness or character of a Medical Staff memberor applicant. The hospital shall retain responsibility for the sole management and defense of any such claims, suits, investigations or other disputes against Indemnitees, including, but not limited to, selection of legal counsel to defend against any such actions. The indemnity set forth herein is expressly conditioned on Indemnitees’ good faith belief that their actions and/or communications are reasonable and warranted andin furtherance of the Medical Staff's peer review, quality assessmentor quality improvement responsibilities, in accordance with the purposesof the Medical Staff as set forth in these Bylaws. In no event will the hospital indemnify an Indemnitee for acts or omissions taken in badfaith or in pursuitof the Indemnitee’s private economicinterests. COMMENT: This indemnity clauseis tailored to meet the standards of California Corporations Code Section 5238. Indemnity can either be included in the Bylaws, Rules, or other hospital policies; howeverin light of Business & Professions Code Section 2282.5 and The Joint Commission MS.01.01.01, we suggestthat such languagebeincluded in the Bylaws. 67 CHA Model Medical Staff Bylaws 2011 Article 13 Performance Improvement and Corrective Action 13.1 Peer Review Philosophy 13.1-1 Role of Medical Staff in Organizationwide Quality ImprovementActivities The Medical Staff is responsible to oversee the quality of medical care, treatment and services delivered in the hospital. An important componentof that responsibility is the oversight of care rendered by members and Allied Health Professionals practicing in the hospital. The following provisions are designed to achieve quality improvements through collegial peer review and educative measures wheneverpossible, but with recognition that, when circumstances warrant, the Medical Staff is responsible to embark on informal corrective measures and/or corrective action as necessary to achieve and assure quality of care, treatment and services. Toward these ends: a. Membersof the Medical Staff are expected to actively and cooperatively participate in a variety of peer review activities to measure, assess and improve performance of their peers in the hospital. b. The initial goals of the peer review processesare to prevent, detect and resolve . problems and potential problems through routine collegial monitoring, education and counseling. However, when necessary, corrective measures, including formal investigation anddiscipline, must be implemented and monitoredforeffectiveness. c. Peers in the [departments and] committees are responsible for carrying out delegated review and quality improvement functions in a mannerthatis consistent,timely, defensible, balanced, useful and ongoing. The term “peers” generally requires that a majority of the peer reviewers be membersholding the samelicense as the practitioner being reviewed,including, wherepossible, at least one member practicing the same specialty as the memberbeing reviewed. Notwithstanding the foregoing, DOs and MDsshallbe deemedto hold the “samelicensure” for purposes of participating in peer review activities. d. [The departments and committees may be assisted by the Medical Director] 13.1-2 Informal Corrective Activities The Medical Staff officers, [departments] and committees may counsel, educate, issue letters of warning or censure, or focused professional practice evaluation in accordance with Bylaws, Section 7.4(a)(2) in the course of carrying out their duties without initiating formal corrective action. Comments, suggestions and warnings may be issued orally or in writing. The practitioner shall be given an opportunity to respond in writing and may be given an opportunity to meet with the officer, (department] or committee. Any informal actions, monitoring or counseling shall be documentedin the member’sfile. Medical Executive Committee approvalis not required for such actions, although the actions shall be reported to the Medical Executive Committee. The actions 68 CHA Model Medical Staff Bylaws 2014 shall not constitute a restriction of privileges or grounds for any formal hearing or appeal rights under Bylaws,Article 14, Hearings and Appellate Reviews. 13.1-3 Criteria for Initiation of Formal Corrective Action A formalcorrective action investigation may beinitiated wheneverreliable information indicates a member may have exhibited acts, demeanoror conduct, either within or outside of the hospital], that is reasonablylikely to be: a. Detrimental to patient safety or to the delivery of quality patient care within the hospital; b. Unethical; c. Contrary to the Medical Staff Bylaws or Rules; d. Below applicable professional standards; e. Disruptive of Medical Staff or hospital operations; or f. An improper use of hospital resources. Generally, formal corrective action measures should notbe initiated unless reasonable attempts at informalresolution have failed; however, this is not a mandatory condition, and formal corrective action may be initiated whenever circumstances reasonably appear to warrant formal action. Any recommendation of formalcorrective action must be based on evaluation of applicant-specific information. 13.1-4 Initiation a. Any person whobelieves that formal corrective action may be warranted may provide information to the Chiefof Staff, any other Medical Staff officer, fany Department Chair] any Medical Staff committee, the chair of any Medical Staff Committee, the Governing Body or the Chief Executive Officer. b. Ifthe Chief of Staff, any other MedicalStaff officer, fany Department Chair] any Medical Staff Committee, the chair of any Medical Staff committee, theGoverning Bodyor the Chief Executive Officer determines that formal corrective action may be warranted under Bylaws, Section 13.1-3, above, that person, entity, or committee may requesttheinitiation of a formalcorrective action investigation or may recommendparticular corrective action. Such requests may be conveyedto the Medical Executive Committee orally or in writing. c. The Chief of Staff shall notify the Chief Executive Officer, or his or her designee in his or her absence, and the Medical Executive Committee and shall continue to keep them fully informedofall action taken. In addition, the Chief of Staff shall immediately forwardall necessary information to the committee or personthatwill conduct any investigation, provided, however,that the Chief of Staff or the Medical Executive Committee may dispense with further investigation of matters deemedto have been adequately investigated by a committee pursuantto Bylaws, Section 13.1- 6, below, or otherwise. 13.1-5 Expedited Initial Review COMMENT:This Section allows an expeditedinitial review of problems,whichis often the practice at hospitals. It is particularly helpful whenever a problem demands immediate attention. The harassment and discrimination investigations are structured so that the Medical Staff will be responsibleforall initial investigations of complaints brought by patients, 69 CHA Model Medical Staff Bylaws 2011 and administrative staff (e.g., the Chief Medical Officer and human resourcesdirector) will be responsible for investigating all other complaints of harassment. In both cases, the Bylawsallow the investigation to be referred to an attorney. Andin ail cases, the Bylawstry to preservethe protections that may be available under Evidence Code Section 1157 (the law that provides an immunity from discovery for Medical Staff Committee records and proceedings) exceptthat the recordsof the review by the Chief Medical Officer and human resources director of complaints not involving patients may not be immunefrom discovery under Evidence Code Section 1157. Also,it may be necessary to disclose information from the investigation to the victim and in defense of a harassmentlawsuit, given the unique requirements of harassmentcases.If theinitial review process is conducted by an attorney,the attorney-clientprivilege will also apply, but as a practical matter,that privilege may be waivedin orderto disclose information for the purposesof meeting the hospital's legal obligation generally to provide information to the victim and the need to usethe information to defend a harassmentordiscrimination fawsuit. Consideration should be given at the outsetto the relative advantages and disadvantagesofthe different approaches. a. Wheneverinformation suggests that corrective action may be warranted,the Chief of Staff or his or her designee [and/or the Medical Director] may, on behalf of the Medical Executive Committee, immediately investigate and conduct whatever interviews may be indicated. The information developed during this initial review shall be presented to the Medical Executive Committee, which shall decide whetherto initiate a formal corrective action investigation. b. In cases of complaints of harassmentor discrimination involving patient, etc., an expeditedinitial review shall be conducted on behalf of the Medical Executive Committee by the Chief of Staff, the Chief of Staff's designee, for the Medical Director], together with representatives of administration, or by an attorney for the hospital. In cases of complaints of harassmentor discrimination wherethe alleged harasseris a Medical Staff member and the complainant is not a patient, an expeditedinitial review shall be conducted by the [Chief Medical Officer and the] hospital’s human resources directoror their designee, or by an attorney for the hospital, who shall use best efforts to complete the expedited initial review within the time framesetout at Bylaws, Section 13.1-8, below. The Chief of Staff shall be kept apprised of the status _ of the initial review. The information gathered from an expedited initial review shall be referred to the Medical Executive Committeeif it is determined that corrective action may be indicated against a Medical Staff member. 13.1-6 Formal Investigation a. If the Medical Executive Committee concludesactionis indicated but that no further investigation is necessary, it may proceedto take action without further investigation. b. If the Medical Executive Committee concludesa further investigation is warranted, it shall direct a formal investigation to be undertaken. The Medical Executive Committee may conductthe investigation itself or may assign the task to an appropriate officer or standing or ad hoc committee to be appointed by the Chief of Staff. The investigating body should notinclude partners, associates or relatives of the individual being investigated. Additionally, the investigating person or body may, but is not required to, engage theservices of one or more outside reviewers as deemed appropriate or helpfulin light of the circumstances(e.g., to help assure an unbiased review,to firm up an uncertain or controversial review or to engage specialized expertise). If the investigation is delegated to an officer or committee other than the Medical Executive Committee, such officer or committee shall proceed with the investigation in a prompt manner, using best efforts to complete the 70 CHA Model Medical Staff Bylaws 2011 expedited initial review within the time frame set out at Bylaws, Section 13.1-8, below, and shall forward a written report of the investigation to the Medical Executive Committee as soon as practicable. The report may include recommendations for appropriate corrective action. c. Prior to any adverse action being approved, the Medical Executive Committee shall assure that the memberwasgiven an opportunity to provide information in a manner and upon such terms as the Medical Executive Committee, investigating body, or reviewing committee deems appropriate. The investigating body or reviewing body may, butis not obligated to, interview persons involved; however, such an interview shall not constitute a hearing as that term is used in Bylaws,Article 14, Hearings and Appellate Reviews, norshall the hearings or appeals Rules apply. d. Despite the status of any investigation, at all times the Medical Executive Committee shall retain authority and discretion to take whatever action may bewarrantedby the circumstances, including summary action. e. Theprovisionsof this Bylaws Section 13.1-6 (including a determination to dispense with formal investigationand proceed immediately to further action pursuant to Section 13.1-6(a)) shall demark the point at which an “impendinginvestigation”is deemed to have commenced within the meaning of Business & Professions Code Section 805(c). COMMENT:The above Section is recommendedtoclarify the point after which a physician's voluntary resignation or acceptanceofpractice restrictions may require report to the Medical Board ofCalifornia. 13.1-7 Medical Executive Committee Action a. As soon as practicable after the conclusion ofthe investigation, the Medical Executive Committee shall take action including, without limitation: 1, Determining no corrective action should be taken and,if the Medical Executive Committee determines there was no credible evidence for the complaint in the first instance, clearly documenting thosefindings in the member’sfile; 2. Deferring action for a reasonable time; 3. Issuing letters of admonition, censure, reprimand or warning, although nothing herein shall be deemed to preclude [department orf Committee Chairs from issuing informal written or oral warnings outside of the mechanismfor corrective action. In the event suchletters are issued, the affected member may make a written response whichshall be placed in the member’sfile; 4. Recommending the imposition of terms of probation or speciallimitation upon continued Medical Staff membership or exercise of privileges including, without limitation, requirements for co-admissions, mandatory consultation or monitoring 5. Recommending reduction, modification, suspension or revocationofprivileges.If suspension is recommended,the terms and duration of the suspension and the conditions that must be met before the suspension is ended shallbe stated; 6. Recommending reductions of membershipstatusorlimitation of any prerogatives directly related to the member’s delivery of patient care; v1 - CHA Model MedicalStaff Bylaws 2011 7. Recommending suspension, revocation or probation of MedicalStaff membership. If suspension or probation is recommended, the terms and duration of the suspension or probation and the conditions that must be met before the suspension or probation is ended shall bestated; 8. Referring the member to the Well-Being Committee for evaluation and follow-up as appropriate; and COMMENT:Clarification of available options, which do include possible referral to Well-Being Committee. 9. Taking other actions deemed appropriate underthe circumstances. b. If the Medical Executive Committee takes any action that would giverise to a hearing pursuant to Bylaws, Section 14.2, it shall also make a determination whether the action is a “medical disciplinary”action or an “administrative disciplinary” action. A medical disciplinary action is one taken for cause or reason that involves that aspectof a practitioner’s competenceor professional conductthat is reasonably likely to be detrimental to patient safety or to the delivery of patient care. All other actions are deemed administrative disciplinary actions. In somecases, the reason may involve both medical disciplinary and administrative disciplinary cause or reason, in which case, the matter shall be deemed medical disciplinary for Bylaws, Article 14, Hearings and Appellate Reviews, hearing purposes. c: And, if the Medical Executive Committee makes a determination that the action is medical disciplinary, it shall also determine whetherthe action is taken for any of the reasons required to be reported to the Medical Board of California pursuant to California Business & Professions Code Section 805.01.. COMMENT:Theaddition of subparagraph(b) correlates with the new provision, at Bylaws, Section 14.8, for administrative hearings. The default to medicaldisciplinaryclassification in the eventof overlapis in deference to the reporting and fair hearing requirementsof California and federallaw, and to help assure all available immunities remain intact. See additional comments accompanying new Section 14.8, including the important cautionary note about how — these classifications mayaffect available protections.The addition of subparagraph(c)is to address requirements imposed by SB 700, 2010, requiring reportsto the licensing board of anydisciplinary action recommended or imposed becauseof a licentiate’s:+ Incompetence,or gross or repeated deviations from the standard of care involving death or serious bodily injury to one or morepatients, to the extentorin such a manneras to be dangerousorinjurious to any person orto the public. * The use of, or prescribing for or administering to himself or herself, any controlled substance; or the use of any dangerous drug as defined in Business & Professions Code Section 4022,or of alcoholic beverages, to the extentor in such a manneras to be dangerousorinjuriousto the licentiate, any other person,or the public,or the extent that such use impairs the ability of the licentiate to practice safely.» Repeated acts of clearly excessive prescribing, furnishing, or administering of controlled substancesor repeated acts of prescribing, dispensing, or furnishing of controlled substances without a goodfaith effort prior examinationofthe patient and medical reason therefor. (Exception — prescribing, furnishing, or administering controlled substancesforintractable pain, consistent with lawful prescribing.)* Sexual misconduct with one or more patients during a courseoftreatmentor an examination.These actions are to be reported to the licensing board within 15 days of the MEC’s action or recommendation — i.¢., these actions must be reported whether or not a summary action has been imposed, and whetheror not hearing and appealrights have been exhausted. 13.1-8 Time Frames Insofaras feasible under the circumstances, formal and informalinvestigations should be conducted expeditiously, as follows: 12 CHA Model Medical Staff Bylaws 2014 a. Informal investigations should be completed and the results should be reported within 60 days. , b. Expedited initial reviews should be completed andtheresults should be reported within 30 days. c. Other formalinvestigations should be completed and the results should be reported within 90 days. 13.1-9 Procedural Rights a. If, after receipt of a request for formal corrective action pursuantto Bylaws, Section 13.1-4, above, the Medical Executive Committee determines that no corrective action is required or only a letter of warning, admonition, reprimand or censure should be issued, the decision shall be transmitted to the Governing Body. The Governing Body may affirm, reject or modify the action. The Governing Bodyshall give great weight to the Medical Executive Committee’s decision andinitiate further action only if the failure to act is contrary to the weight of the evidencethatis beforeit, and then only after it has consulted with the Medical Executive Committee and the Medical Executive Committee still has not acted. The decision shall becomefinalif the Governing Bodyaffirms it or takes noaction on it within 70 days after receiving the notice of decision. COMMENT:The above changeisto clarify that the Medical Executive Committee (MEC) need only report decisions not to initiate corrective actionsin circumstances where there had been a request for corrective action. b. If the Medical Executive Committee recommendsanaction that is a groundfor a hearing under Bylaws, Section 14.2,the Chiefof Staff shall give the practitioner special notice of the adverse recommendation andofthe right to requesta hearing. The Governing Body may be informed of the recommendation, but shall take no action until the memberhaseither waived his orher right to a hearing or completed the hearing. 13.1-10 Initiation by Governing Body a. The Medical Staff acknowledges that the Governing Body mustactto protect the quality of medical care provided and the competencyof its Medical Staff, and to ensure the responsible governanceof the hospital in the event that the Medical Staff fails in any of its substantive duties or responsibilities. b. Accordingly,if the Medical Executive Committeefails to investigate or take disciplinary action, contrary to the weight of the evidence, the Governing Body may direct the Medical Executive Committee to initiate an investigation or disciplinary action, but only after consulting with the Medical Executive Committee.Ifthe Medical Executive Committee fails to act in response to that Governing Body direction, the Governing Body may,in furtherance of the Governing Body’s ultimate responsibilities and fiduciary duties, initiate corrective action, but must comply with applicable provisions of Bylaws, Article 13, Performance Improvementand Corrective Action, and Article 14, Hearings and Appellate Reviews. The Governing Body shall inform the Medical Executive Committee in writing of whatit has done. 13.2 Summary Restriction or Suspension 73 CHA Model Medical Staff Bylaws 2011 COMMENT:Thebelow revisions correlate with the new provision for a preliminary hearing to review a summary suspension. Seeadditional Comments at new Bylaws, Section 14.5. 13.2-1 Criteria for Initiation a. Whenevera practitioner’s conductis such that a failure to take action mayresult in an imminent dangerto the health of any individual, the Chiefof Staff, the Medical Executive Committee, /the Department Chair in which the memberholds privileges,] or the Chief Executive Officer may summarily restrict or suspend the Medical Staff membership orprivileges of such member. b. Unless otherwise stated, such summary restriction or suspension (summary action) shall becomeeffective immediately upon imposition, and the person or body responsible shall promptly give special notice to the memberand written notice to the Governing Body,the Medical Executive Committee, and the Chief Executive Officer. The special notice shall fully comply with the requirements of Bylaws, Section 13.2-1(d), below. c. The summary action maybe limited in duration and shall remain ineffect for the ‘periodstated or, if none, until resolved as set forth herein. Unless otherwise indicated by the terms of the summary action, the member’s patients shall be promptly assigned to another memberby the (DepartmentChair or by the] Chief of Staff considering, where feasible, the wishes of the patient and the affected practitioner in the choice of a substitute member. d. Within one working day of imposition of a summary suspension, the affected Medical Staff membershall be provided with verbal notice of such suspension; followed, within three working days of imposition, by written notice of such suspension.This initial written notice shall include a statementof facts demonstrating that the suspension was reasonable and warranted becausefailure to suspendorrestrict the member’s privileges summarily could reasonablyresult in an imminent dangerto the health of any individual. The statementof facts provided in this initial notice shall also include a summary of one or moreparticular incidents giving rise to the assessmentofimminent danger. Thisinitial notice shall not substitute for, but is in addition to, the notice required under Bylaws, Section 14.3-1 (which applies in all cases where the Medical Executive Committee does not immediately terminate the summary suspension). The notice under Bylaws, Section 14.3-1 may supplementtheinitial notice provided underthis Section, by including any additional relevant facts supporting the need for summary suspensionor other corrective action. e. The notice of the summary action given to the Medical Executive Committee shall constitute a request to initiate corrective action and the proceduresset forth in Bylaws, Section 13.1-3, page 92, shall be followed. ‘13.2-2 Medical Executive Committee Action Within one week after such summary action has been imposed, a meetingofthe Medical Executive Committee for a subcommittee appointed by the Chief of Stafff shall be convened to review and considerthe action. Upon request, the member may attend and make a statement concerning the issues underinvestigation, on such terms and conditions as the Medical Executive Committee may impose, although in no eventshall any meeting of the Medical Executive Committee, with or without the member, 74 CHA Model Medical Staff Bylaws 2011 constitute a “hearing” within the meaning of Bylaws, Article 14, Hearingsand Appellate Reviews, nor shall any procedural Rules apply. The Medical Executive Committee may thereafter continue, modify or terminate the terms of the summary action.It shall give the practitioner specialnotice ofits decision, within two working daysof the meeting, which shall include the information specified in Bylaws, Section 14.3-1 if the action is adverse. 13.2-3 Procedural Rights Unless the Medical Executive Committee promptly terminates the summary action, and if the summary action constitutes a suspension orrestriction of clinicalprivileges required to be reported to the Medical Board of California pursuant to Business & Professions Code Section 805), the membershall be entitled to the proceduralrights afforded by Bylaws, Article 14, Hearings and Appellate Reviewsfincluding, but notlimited - fo, a right to a preliminary hearing as described at Bylaws, Section 14.5]. 13.2-4 Initiation by Governing Body a. Ifno one authorized under Bylaws, Section 13.2-1(a), above, to take a summary action is available to summarily restrict or suspend a member’s membership or privileges, the Governing Body (or its designee) may immediately suspend orrestrict a member’s privilegesif a failure to act immediately may result in imminent danger to the health of any individual, provided that the Governing Body(orits designee) made reasonable attempts to contact the Chiefof Staff [and the Chair of the departmentto which the memberis assigned] before acting. b. Such summary actionis subject to ratification by the Medical Executive Committee. If the Medical Executive Committee does notratify such summary action within two working days, excluding weekendsandholidays, the summary action shall terminate automatically. 13.3 Automatic Suspension or Limitation In the following instances, the member’s privileges or membership may be suspended or limited as described: - 13.3-1 Licensure a. Revocation, Suspension or Expiration. Whenever a member’slicenseor otherlegal credential authorizing practice in this state is revoked, suspendedor expired without an application pending for renewal, Medical Staff membershipandprivileges shall be automatically revokedasofthe date such action becomeseffective. b. Restriction. Whenever a member’s license orother legal credential authorizing practice in this stateis limited orrestricted by the applicablelicensing or certifying authority, any privileges which are within the scope of such limitation or restriction shall be automatically limited or restricted in a similar manner,as of the date such ~ action becomeseffective and throughoutits term. c. Probation. Whenever a memberis placed on probation by the applicable licensing or certifying authority, his or her membership status and privileges shall automatically becomesubject to the same terms and conditionsofthe probationas ofthe date such action becomeseffective and throughoutits term. 13.3-2 Drug Enforcement Administration Certificate 75 CHA Model Medical Staff Bylaws 2011 a. Revocation, Suspension, and Expiration. Whenever a member’s Drug Enforcement Administration certificate is revoked, limited, suspendedor expired, the member shall automatically and correspondingly be divestedofthe right to prescribe medications covered by thecertificate as of the date such action becomeseffective and throughoutits term. _ b. Probation. Whenever a member's Drug Enforcement Administration certificate is subject to probation, the member's right to prescribe such medicationsshall automatically become subjectto the same termsofthe probation as of the date such action becomeseffective and throughout its term. 13.3-3 Failure to Satisfy Special Appearance Requirement A member whofails without good cause to appearand satisfy the requirements of Bylaws,Section 11.7-3 shall automatically be suspended from exercisingall or such portion of privileges as the Medical Executive Committee specifies. 13.3-4 Medical Records Medical Staff members are required to complete medical records within the time prescribed by the Medical Executive Committee.Failure to timely complete medical records shall result in an automatic suspension after notice is given as providedin the - Rules. Such suspension shall apply to the Medical Staff member’s right to admit, treat or provideservices to new patients in the hospital, but shall notaffect the right to continueto care for a patient the Medical Staff memberhas already admitted oris treating; provided, however, members whoseprivileges have been suspendedfor delinquent records may admit and treat new patients in life-threatening situations. The suspensionshall continue until the medical records are completed.If after 30 consecu- tive days of suspension the member remains suspended, the membershall be considered to have voluntarily resigned from the Medical Staff. Nothingin the foregoing shall preclude the implementation, by the Medical Executive Committee, of a monetary fine for delinquent medical records. COMMENT:It is reasonable to permit members suspendedfor medical records delinquenciesto provideservicesin the additionalsituation described above(i.e., life-threatening situations).Also some Medical Staffs find that imposition of fines, or revocations of nonclinical privileges [e.g., preferred parking spots] are moreeffectivein dealing with medical record deficiencies. However, evenif such provisions are implemented, the Bylaws shouldincludethe ultimate authority to automatically suspend and/orterminate in the event compliance cannot be achieved. 13.3-5 Cancellation of Professional Liability Insurance Failure to maintain professionalliability insurance as required by these Bylaws shall be grounds for automatic suspension of a member’s privileges. Failure to maintain professionalliability insurance for certain procedures shall result in the automatic suspensionofprivileges to perform those procedures. The suspension shall be effective © until appropriate coverage is reinstated, including coverage of any acts or potential liabilities that may have occurredorarisen during theperiod ofany lapse in coverage. A failure to provide evidence of appropriate coverage within six monthsafter the date of automatic suspension shall be deemed a voluntary resignation of the member from the MedicalStaff. 13.3-6 Failure to Pay Dues or Fines 16 CHA Model Medical Staff Bylaws 2011 If the memberfails to pay required duesorfines within 30 daysafter written warning of delinquency, a practitioner’s Medical Staff membership andprivileges shall be automatically suspended and shall remain so suspended until the practitioner pays the delinquent dues.If after 60 consecutive days of suspension the member remains suspended, the memberwill be considered to have voluntarily resigned from the MedicalStaff. 13.3-7 Failure to Comply with Government and Other Third Party Payor Requirements The Medical Executive Committee shall be empowered to determine that compliance with certain specific third party payor, governmentagency, and professional review organization Rules orpolicies is essential to hospital and/or MedicalStaff operations and that compliance with such requirements can be objectively determined. The Rules may authorize the automatic suspensionof a practitioner who fails to comply with such requirements. The suspensionshall be effective until the practitioner complies with such requirements. 13.3-8 Automatic Termination Ifa practitioner is suspendedfor more than six months,his or her membership(orthe affected privileges, if the suspensionis a partial suspension) shall be automatically terminated. Thereafter, reinstatementto the Medical Staff shall require application and compliance with the appointmentproceduresapplicable to applicants. 13.3-9 Executive Committee Deliberation and Procedural Rights a. As soon as practicable after action is taken or warranted as described in Bylaws, Section 13.3~1, Section 13.3-2, or Section 13.3-3, page 100, the Medical Executive Committee shall conveneto review and considerthe facts and may recommend such further corrective action as it may deem appropriate followingthe procedure generally set forth commencing at Bylaws, Section 13.1-6, Formal Investigation. The Medical Executive Committee review and any subsequent hearings and reviews shall not address the propriety ofthe licensure or Drug Enforcement Administration action, but instead shall address what,if any, additional action should be taken by the hospital. There is no need for the Medical Executive Committee to act on automatic suspensionsfor failures to complete medical records (Bylaws, Section 13.3-4, page 100), maintain professionalliability insurance (Bylaws, Section 13.3-5, page 101), to pay dues (Bylaws, Section 13.3-6, above) or comply with government and other third party payor Rules andpolicies (Bylaws, Section 13.3-7, above). b. Practitioners whoseprivileges are automatically suspended and/or who have been deemed to have automatically resigned their Medical Staff membershipshall be entitled to a hearing only if the suspension is reportable to the Medical Board of California or the federal National Practitioner Data Bank. 13.3-10 Notice of Automatic Suspension or Action Special notice of an automatic suspensionoraction shall be givento theaffected individual, and regular notice of the suspensionshall be given to the Medical Executive Committee, Chief Executive Officer and Governing Body, but such notice shall not be required for the suspension to becomeeffective. Patients affected by an automatic suspension shall be assigned to another memberby the [DepartmentChair or] Chief of _ Staff. The wishesof the patient and affected practitioner shall be considered, where feasible, in choosing a substitute member. 7? CHA Model Medical Staff Bylaws 2011 13.3-11 [Automatic Action Based upon Actions Taken by Another Peer Review Body after a Hearing] _ a. [The Medical Executive Committee shalt be empowered to automatically impose any adverse action that has been taken by another peer review body (as that term is used in the Medical Staff . Hearing Law, Business & Professions Code Section 809 et seq.) after a hearing at that other peer review body that meets the requirement of the Medical Staff Hearing Law. Such an adverse action may be any action taken by the other peer review body, including, but not limited to, denying membership and/orprivileges, restricting privileges or terminating membership and/orprivileges. The action may be taken automatically only if the other peer review body took action based upon standards that were essentially the same as thosein effect at this hospital af the time the automatic action will be taken. Also, the action that will be the basis of the automatic action must have becomefinal within the past 36 months. The automatic action may be taken only after the practitioner has completed the hearing and any appealat that other peer review body; however, it is not necessary to await a finaldisposition in anyjudicial proceeding that may be brought challenging that other peer review body’s action.] b. [The practitioner shall not be entitled to any hearing or appealatthis hospital unless the Medical Executive Committee fakes an action that is more restrictive than the final action taken by the other peer review body. Any hearing and appeal thatis requested by the practitioner shall not address the merits of the action taken by the original peer review body, which were already reviewed at the other peer review body’s hearing, and shall be limited to only the question of whether the automatic action is more restrictive than the other peer review body’s action. The practitioner shail not be entitled to challenge the automatic peer review action unless he or she successfully overturns the other peer review action in court.] c. [Nothing in this Section shall preclude the Medical Staff or Governing Body from taking a more restrictive action than another peer review body based upon the samefacts or circumstances_] COMMENT:Above noted changesareforclarification purposes only. Hospitals wishing to further streamline their ‘hearing and appeals procedures should considerincluding a provision for automatic action as above. This provision allows Medical Staffs and hospitals to automatically impose anyprivilegerestriction (including terminationofprivileges or denial of an application) imposed by another hospital or other “peer review body”after a hearing that complies with the requirements of the Medical Staff Hearing Law, Business & Professions Code Section 809 et seq. The automatic action provision has threelimits: (1) The action may be automatically taken only if the original hospital took action based upon standards that were essentially the same as those that are in effect at the hospital thatwill be taking the automatic action; (2) the action that will be the basis of the automatic action must have becomefinal within the past 36 months; and (3), the automatic action may not have an effect that is more restrictive than the original action’s effect.The basis for this type of provision is the court's decision in Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089.In that case, the court upheld discipline against a podiatrist based upon discipline imposed by anotherstate. The court rejected the argumentthat the podiatrist was entitled to relitigate the merits of the case since he had already “had his dayin court.” The automatic action feature would minimize the wasteful practice of requiring each hospital to prove the case, but it is a new provision that has not yet beentested in court with respect fo hospital MedicalStaff hearings. Accordingly, hospitals are advised to consult with counsel before imposing any automatic action pursuantto this provision. 13.4 Interview Interviewsshall neither constitute nor be deemed a hearing as described in Bylaws, Article 14, Hearings and Appellate Reviews,shall be preliminary in nature, and shall not be conducted according to the procedural Rules applicable with respect to hearings. The Medical Executive Committee shall be required, at the practitioner’s request, to grant an interview only whenso specified in these Bylaws, Article 13. In the event an interview is granted, the practitioner shall be informed of the general nature of the reasonsfor the recommendation and maypresent information relevant thereto. A record of the matters discussed andthe findings resulting from an interview shall be made. 78 CHA Model Medical Staff Bylaws 2011 13.5 Confidentiality To maintain confidentiality, participants in the corrective action process shall limit their discussion of the matters involved to the formal avenuesprovided in these Bylawsfor peer review and discipline. 13.6 [Systemwide Corrective Action] 13.6-1 [Notice of Pending Investigations/Joint Investigations] a. [The Chief of Staff and the Chief Executive Officer each shall have the discretion to notify their counterpart officers or other system members whenever a requestfor corrective action has been received.] b. {In addition, the Medical Executive Committee may authorize a coordinated investigation and may appoint other system members’ Medical Staff members to assist in the coordinated investigation.] c. [The Chief of Staff and the Chief Executive Officer are authorized to disclose to another system member's peer teview body (or an authorized representative of that body) information from hospital and Medical Staff recordsto assist in the other system member's independentorjoint investigation of any practitioner] d. [The results of anyjoint investigation shall be reported to each system member's peer review bodyforits independent determination of what, if any, corrective action should be taken] 79 CHA Model Medical Staff Bylaws 2011 13.6-2 [Notice of Actions] a. [In addition to the discretionary reporting andjoint investigation provisions set forth at Bylaws, Section 13.6-1, above, the Chief of Staff and/or the Chief Executive Officer are authorized to inform his or her counterpart officer at any other system member where the practitioneris known fo hold privileges wheneverany ofthe following actions has been taken.] 1. {Summary suspension ofclinical privileges should be reported promptly upon imposition (other than automatic suspensionsforfailure to complete medical records or pay dues).] 2. [Other corrective actions may be reported at any time the Chief of Staff or Chief Executive Officer determines such a report to be appropriate, and should be reported promptly upon final action by the board_] b. [The effect of such action on the involved practitioners privileges at another system member shall be determined by the Medical Staff Bylaws or other applicable policies of that other system member,or, if there are no applicable Bylawsorpolicies, the information shall be deemedtransmitted for the receiving system members independent review and action] c. [The Chief of Staff and Chief Executive Officer are authorized to disclose to another system member's peer review body (or an authorized representative of that body) information from the hospital and Medical Staff records regarding such a practitioner or Allied Health Professional.] 13.6-3 [Effect of Actions Taken by Other Entities] [Except as provided in Bylaws, Section 13.3-11, page 103, whenever the Chiefof Staff or Medical Executive Committeereceives information about an action taken,_at another system memberand involving a practitioner or Allied Health Professional holding privileges at the hospital, the Chief of Staff or Medical Executive Committee shall, if time permits, independently assess the facts and circumstances to ascertain whether to take comparable action. However, whenthe practitioner or Allied Health Professional was summarily suspendedorrestricted at _ the other system member, any person authorized under Bylaws, Section 13.2-1, Criteria for Initiation, to impose a summary action is authorized to immediately impose a comparable suspension orrestriction at this hospital, subject to review by the Medical Executive Committee in accordancewith the provisions of Bylaws, Section 13.2, Summary Restriction or Suspension.] COMMENT:Correction of cross references.Note: While this provision has somesimilar features as Bylaws, Section 13.3-11, the issues are somewhatdifferent whenthe circumstance involves sister hospitals within a’system — especially wherethere is a common Governing Body. Not only does the above provision include independent review by the second hospital before (or in the case of summary suspension, immediately after) imposition of the action, there is also provision forfair hearing to review the action. Hospitals that deliver telemedicine services among system hospitals should give special consideration to including provisions such as these for reporting and/or effectuating sister-hospital corrective actions. , 80 CHA Model Medical Staff Bylaws | 2011 Article 14 Hearings and Appellate Reviews COMMENT:District hospitals also need to comply with the requirements of Health and Safety Code Section 32150 ef seq. 14.1 General Provisions 14.1-1 Review Philosophy The intent in adopting these hearing and appellate review proceduresis to provide for a fair review of decisions that adversely affect practitioners (as defined below), and at the sametime to protect the peer review participants from liability. It is further the intent to establish flexible procedures which do not create burdensthatwill discourage ° the Medical Staff and Governing Body from carrying out peer review. Accordingly, discretion is granted to the Medical Staff and Governing Bodyto create a hearing process which providesfor the least burdensomelevel of formality in the process andyetstill provides a fair review and to interpret these Bylawsin thatlight. The MedicalStaff, the Governing Body,andtheirofficers, committees and agents hereby constitute themselves as peer review bodies underthe federal HealthCare Quality Improvement Act of 1986 andthe California peer review hearing laws and claim all privileges and immunities afforded by the federal and state laws. 14.1-2 Exhaustion of Remedies If an adverse action as described in Bylaws, Section 14.2 is taken or recommended, the practitioner must exhaust the remedies afforded by these Bylawsbefore resorting to legal action. 14.1-3 Intra-Organizational Remedies The hearingand appealrights established in the Bylawsarestrictly adjudicative rather thanlegislative in structure and function. The hearing committees have no authority to adopt or modify Rules and standardsor to decide questions about the merits or substantive validity of Bylaws, Rules or policies. However, the Governing Body may,in its discretion, entertain challenges to the merits or substantive validity of Bylaws, Rules or policies and decide those questions.If the only issue in a case is whethera Bylaw, Rule orpolicy is lawful or meritorious, the practitioneris not entitled to a hearing or appellate review. In such cases, the practitioner must submithis challengesfirst to the Governing Body and only thereafter may heor she seek judicial intervention. 14.1-4 [Joint Hearings and Appeals] [The Medical Staff and Governing Body are authorizedto participate in joint hearings and appeals in accordance with Bylaws, Section 14.12, of this Article] 14.1-5 Definitions Except as otherwise provided in these Bylaws, the following definitions shall apply underthis Article: 81 CHA Model Medical Staff Bylaws 2011 a. Body whose decision prompted the hearing refers to the Medical Executive Committee in all cases where the Medical Executive Committee or authorized Medical Staff officers, members or committees took the action or rendered the decision which resulted in a hearing being requested. It refers to theGoverning Body in all cases where the Governing Bodyorits authorized officers, directors or committees took the action or rendered the decision which resulted in a hearing being requested. b. Practitioner, as used in this Article, refers to the practitioner who has requested a hearing pursuant to Bylaws, Section 14.3-2 of this Article. 14.1-6 Substantial Compliance Technical, insignificant or nonprejudicial deviations from the proceduresset forth in these Bylaws shall not be groundsfor invalidating the action taken. 14.2 Groundsfor Hearing Except as otherwise specified in these Bylaws(including those Exceptions to Hearing Rights specified in Bylaws, Section 14.13, of this Article), any one or moreofthe following actions or recommendedactions shall be deemed anactual or potential adverse action and constitute groundsfor a hearing: 14.2-1 Denial of Medical Staff initial applications for membership and/orprivileges. 14.2-2 Denialof Medical Staff reappointment and/or renewalof privileges. 14.2-3 Revocation, suspension,restriction, involuntary reduction of Medical Staff membership and/orprivileges. 14.2-4 Involuntary imposition of significant consultation or Level IIL proctoring requirements, as described at Bylaws, Section 7.4-4(a)(3), that cannot be completed prior to the time framerequired for reporting the restriction to the Medical Board of California (i.e., Level I and Level II proctoring requirements,as well as transitory restrictions that do not require reporting to the Medical Board of the Data Bank do not entitle the practitioner to a hearing). 14.2-5 Summary suspension of Medical Staff membership and/orprivileges during the pendencyof corrective action and hearings and appeals procedures. 14.2-6 Any other “medical disciplinary” action or recommendation that must be reported to the Medical Board of California underthe provisionsofCalifornia Business & Professions Code , Section 805 or to the National Practitioner Data Bank. 14.3 Requests for Hearing 14.3-1 Notice of Action or Proposed Action a. In all cases in which action has been taken or a recommendation madeasset forth in Bylaws, Section 14.2, the practitioner shall be given special notice of the recommendationor action andofthe right to request a hearing pursuant to Bylaws, Section 14.3-2, below.The notice muststate: 1. What action has been proposedagainstthe practitioner; 2. Whethertheaction, if adopted, must be reported under Business & Professions Code Section 805; 82 CHA Model Medical Staff Bylaws 2011 3. A brief indication of the reasons for the action or proposedaction; 4. That the practitioner may request a hearing; 5. That a hearing mustbe requested within 30 days; and 6. That the practitioner has the hearing rights described in the MedicalStaff Bylaws, including those specified in Bylaws, Section 14.6, Hearing Procedure. b. The notice shall also advise the practitioner that he or she may request mediation of the dispute pursuantto Bylaws, Section 14.4, page 110, of these Bylaws and that mediation must be requested,in writing, within 10 days 14.3-2 Request for Hearing a. The practitioner shall have 30 days following receipt of special notice of such action to request a hearing (and, if applicable, a preliminary hearing, as further described in Bylaws, Section 14.5, page 111). The request shall be in writing addressed to the Chief of Staff with a copy to the Chief Executive Officer. If the practitioner does not request a hearing within the time and in the mannerdescribed,the practitioner shall be _ deemed to have waived any right to a hearing and accepted the recommendation or action involved. Suchfinal recommendation shall be considered by the Governing Body within /70] days andshall be given great weight by the Governing Body, althoughit is not binding on the Governing Body. b. The practitionershall state, in writing, his or her intentions with respect to attorney representationat the time heorshefiles the request for a hearing: Notwithstanding the foregoing and regardless of whether the practitioner elects to have attorney representationat the hearing,the parties shall have the right to consult with legal counsel to prepare for a hearing or an appellate review. c, Any time attorneyswill be allowed to represent the parties at a hearing, the Hearing Officer shall have the discretion to limit the attorneys’ role to advising their clients rather than presenting the case. d. Any request for mediation must be received within 10 days ofthe dateofreceiptof the notice sent pursuant to Bylaws, Section 14.3-1(b). : COMMENT:Correction. 14.4 Mediation of Peer Review Disputes COMMENT:This new provisionis a tool that some Medical Staffs have found useful in resolving peer review disputes without necessity of a hearing. Sinceitis an optional provision in implementation, it is advisable to add this as an additional“tool” for addressing Medical Staff peer review disputes. 14.4-1 Mediation is a confidential process in which a neutral personfacilitates communication between the Medical Executive Committee’and a practitioner to assist them in reaching a mutually acceptable resolution of a peer review controversy ina mannerthat is consistent with the best interests of patient care. 14.4-2 The parties are encouraged to consider mediation wheneverit could be productive in resolving the dispute. 83 CHA Model Medical Staff Bylaws 2011 14.4-3 In order to obtain consideration of mediation,the practitioner must request mediation in writing, as defined herein, within 10 days of his/herreceiptof a notice of action or proposedaction that wouldgiverise to a hearing pursuant to Bylaws, Section 14.2. 14.4-4 If the practitioner and the Medical Executive Committee agree to mediation,all deadlines and time framesrelating to the fair hearing process shall be tolled while the mediation is in process, and the practitioner agrees that no damages may accrue as the result of any delays attributable to the mediation. 14.4-5 Mediation cannotbe used by either the Medical Staff or the practitioner as a way of unduly delaying the corrective action/fair hearing process. Accordingly, unless both ' the Medical Staff and the practitioner agree otherwise, mediation must commence within 30 days of the practitioner’s request and must conclude within 30 daysofits commencement.If the mediation doesnotresolve the dispute,the fair hearing process will promptly resume upon completion of the mediation. 14.4-6 The parties shall cooperate in the selection of a mediator (or mediators). Mediators should be both familiar with the mediation process and knowledgeable regarding the issues in dispute. The mediator mayalso serve as the Hearing Officer at any subsequent hearing, subject to the agreementof the parties which maybegiven prior to the mediation orafter, with the parties to decide when theywill agree on this issue. Thecosts of mediation shall be shared two-thirds by the Medical Staff and one third by the practitioner. The inability of the Medical Staff and the practitioner to agree upon a mediator within the required timelimits shall result in the termination of the mediation process and the resumptionofthe fair hearing process. 14.4-7 Once selected, the mediator and the parties, working together, shall determine the proceduresto be followed during the mediation. Either party has the right to be represented by legal counsel in the mediation process. 14.4-8 All mediation proceedings shall be confidential and the provisionsof California Evidence Code Section 1119 shall apply except that communications that confirm that mediation was mutually accepted and pursued maybe disclosed as proof that otherwise applicable time frames weretolled or waived. Anysuch disclosure shall be limited to that which is necessary to confirm mediation was pursued, and shall not include any points that are substantive in nature or addressthe issues presented. Except as otherwise permitted in this Section, no other evidenceof anything saidat, or any writing preparedfororas the result of, the mediation shall be used in any subsequentfair hearing process that takesplace if the mediation is not successful. 14.5 [Preliminary Hearing] COMMENT: Somehospitals include provisionsfor “bifurcated” hearings as a means to promptly address summary suspension actions —-i.e., one hearing to address the need for summaryaction; and another hearing to address the permanent action. The below provisionsfora preliminary hearing reflect a modified approach designedto achieve the benefits of an early review, without the many problems CHA has previously noted with the moretraditional“bifurcated” hearing approach. This new approach provides for promptinitial review of a summary action, while minimizing the potential redundancy and added expensethatthe traditional bifurcated approach involved. Theseprovisions thus provide a meansfor promptly assessing the need for immediate action (and therebylimiting potential damages to both the physician and the hospitalin the event the summary action is determined unwarranted), while at the same time 84 CHA Model Medical Staff Bylaws 2011 assure that matters reviewed and determinedin the preliminary hearing will, absent extenuating circumstances,be controlling in the subsequent full hearing. Finally, these provisions makeit clear that both the preliminary hearing and the full hearing are conducted by the same hearing committee and same Hearing Officer, again contributing to the efficiency of these proceedings. Notwithstanding these improvementsto the traditional bifurcated hearings, some attorneys believe that there remain problemsin being able to effectively prepare for a preliminary hearing, given the tightertime framesinvolved, and/or have expressed concerns whetherit is truly possible to effectively eliminate the redundancyinherentin bifurcated hearings..In summary, these optional preliminary hearing provisions remain somewhat controversial. Hospitals and MedicalStaffs should consult with counselin deciding whetherto include such a provision in the Bylaws. , 14,5-1 [Any affected practitioner shall have the right to challenge imposition of a summary action, particularly on the issue of whetheror not, based on the information presented to the Medical Executive Committee at the time the summary action was imposed and/or continuedin effect (as described at Bylaws, Section 13.2-2), the Medical Executive Committee reasonably determinedthat failure to summarily restrict or suspend could reasonably result in an imminent dangerto the health of an individual. Initially, the practitioner may present this challenge to the Medical Executive Committee at the meeting held within seven calendar days of imposition of the suspension action. If the Medical Executive Committee’s decision is fo continue the summary action, then any practitioner who has properly requested a hearing under the Medical Staff Bylaws may also request a preliminary hearing devoted exclusively to whetherthere is sufficient evidence based on the information presented to the Medial Executive Committee at the time the summary action was imposed and/or continuedin effect, that failure to summarily restrict or suspend could reasonably result in an imminent dangerto the health of an individual] 14.5-2 [This preliminary hearing shall be conducted by the Hearing Officer appointed pursuant to Bylaws, Section 14.6-5, and, unless waived by the practitioner, the Hearing Committee appointedforthe full hearing, comprised pursuant to Bylaws, Section 14.6-4. Except as otherwise agreed by the parties, the preliminary hearing shall be convenedwithin 15 days ofthe date all members of the Hearing Committee have been appointed. The Hearing Officer and Hearing Committee members shall be subject fo reasonable questions and challenges to qualifications and potential conflicts, as provided at Bylaws, Section 14.6-14, and the evidentiary portion of the preliminary hearing shall be commenced, diligently pursued, and completed as promptly as reasonably possible. Except as modified by this Bylaws, Section 14.5, the provisions of Bylaws, Section 14.6-14, shall apply; however the Hearing Officer shall be empoweredto adjust time frames and modify procedures otherwise described in Bylaws, Section 14.6, as necessary to achieve a timely preliminary hearing. If the Hearing Officer determines that the memberis not proceeding diligently in furtherance ofa timely preliminary hearing, the Hearing Officer, in consultation with the Hearing Committee, if one has been appointed, may terminate the preliminary hearing, and order that the matter be heard as part ofthe full hearing, as described at Bylaws, Section 14.6.] 14.5-3 [At the conclusion of the preliminary hearing, the Hearing Officer, or Hearing Committee, as applicable, shall issue a written decision as to whether, based onthe information presented fo the Medical Executive Committee at the time the summary action was imposed and/or continued in effect (as described at Bylaws, Section 13.2-2) reasonably determinedthat failure to summarily restrict or suspend could reasonably result in “imminent danger’to the health of an individual. The decision mayaffirm or reject, but may not modify, the action imposed by the Medical Executive Committee (although it may recommendthat the Medical Executive Committee consider modification). The written decision shall include documented findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached, and shall be transmitted to both the affected practitioner and the Medical Executive Committee within 15 calendar days from the conclusion of the preliminary hearing] 14.5-4[if the Hearing Officers or Hearing Committee’s (as applicable) determination is that the information presented to the Medical Executive Committee at the time the summary action was imposed and/or 85 CHA Model Medical Staff Bylaws 2011 continued in effect does not reasonably support a determination that failure to summarily restrict or suspend the practitioner's privileges could reasonably result in imminent danger to the health of an individual, the determination shall be immediately transmitted to the Medical Executive Committee for reconsideration ofifs imposition ofsummary action. If the Medical Executive Committee does not rescind the summary action within 10 days of receiptof the. Hearing Officer's or Hearing Committee’s determination, the matter shall be immediately transmitted to the Governing Body, which shall process the matter as an appeal from a favorable hearing recommendation, as further described at Bylaws, Section 14.7; provided, however, the appeal shall be heard within 45 calendar daysofthe date of the Hearing Officer's or Hearing Committee’s initial determination in the matter; and further provided that the full hearing on the merits is not stayed and may proceed as usual during the pendency of the appeal.] 14.5-5 [Nothingin the foregoing precludes the Medical Executive Committee from imposing other remedial action in lieu of the initial summary action; and if such other action is itself a summarily imposed restriction ofprivileges thatis reportable to the Medical Board of California, then the affected membershall be entitled to challenge such alternative summary actions in the same manner as described aboveforthe initial summary action.] 14.5-6 [if the Hearing Officer, or Hearing Committee, determinesthat the information presented to the Medical Executive Committee at the time the summary action was imposed and/orcontinuedin effect reasonably supports a determination thatfailure to summarily restrict or suspend could reasonably result in imminent danger to the health of an individual, the summary action shall remain in effect pending conclusion ofthe full hearing and any appellate review] 14.5-7 [A full hearing on the merits of the summary action and any additional restrictions or discipline shall be conducted as soon as reasonably possible, in accordance with the provisions of Business & Professions Code Section 8.09 et seq. Subject to the following limitations, the findings offact from the preliminary hearing shall be deemedestablishedin the full hearing; provided, however, the Hearing Committee shail be permitted to hear additional evidence andto reconsider the conclusions previously reachedin light of the evidence producedatthe full hearing. Notwithstanding the foregoing, a preliminary hearing determination that a summary action was not warranted shall, if upheld by the Governing Body pursuant to the appeal provisions set forth above, shall be binding on the hearing committee with respect to that particular decision.] 14.6 Hearing Procedure 14.6-1 Hearings Prompted by Governing Body Action If the hearing is based upon an adverse action by the Governing Body, thechair of the Governing Bodyshallfulfill the functions assigned in this Section to the Chiefof Staff, and the Governing Bodyshall assumetherole of the Medical Executive Committee. The Governing Body may, but need not, grant appellate review of decisionsresulting from such hearings. COMMENT: Recommendedtoalleviate the need for the Governing Body to conduct an appeal relatingto its own decision. However, there maybe circumstances whereappellate review is advisable, so the provision allowsthe Governing Body,in its discretion, to permit an appellate review, 14.6-2 Time and Place for Hearing Uponreceipt of a request for hearing, the Chief of Staff shall schedule a hearing and, within 30 days from the date he or she received the request for a hearing, give special notice to the practitioner of the time, place and date of the hearing. The date of the commencementofthe hearing shall be not less than 30 days nor more than 60 days from the date the Chief of Staff received the request for a hearing/: provided, however, that 86 CHA Model Medical Staff Bylaws 2011 when the request is received from a member whois under summary action and has timely requested a preliminary hearing as described in Bylaws, Section 14.5-1, page 112, the timely commencement of a preliminary hearing shall be deemedto satisfy the provisions of these Bylawsfor timely commencementof the hearing]. 14.6-3 Notice of Charges Together with the specialnotice stating the place, time and date of the hearing, the Chief of Staff shall state clearly and concisely in writing the reasonsfor the adverse proposed action taken or recommended,includingthe acts or omissions with which the practitioner is charged anda list of the charts in question, where applicable. A supplemental notice maybe issued at any time, provided the practitioneris given sufficient time to prepare to respond. 14.6-4 Hearing Committee a. When a hearing is requested, the Chief of Staff shall appoint a Hearing Committee which shall be composedof not less than three members whoshall gain nodirect financial benefit from the outcome and who have notacted as accuser, investigator, fact finder, initial decision maker or otherwise havenotactively participated in the consideration of the matter leading up to the recommendationor action. Knowledge of the matter involved shall not preclude a memberofthe Medical Staff from serving as a memberoftheHearing Committee. In the eventthat it is not feasible to appoint a Hearing Committee from the active MedicalStaff, the Chief of Staff may appoint members from other Medical Staff categories or practitioners who are not Medical Staff members. Such appointmentshall include designation of the chair. When feasible, the Hearing Committee shall include at least one member whohas the same healingarts licensure as the practitioner and whopractices the samespecialty as the practitioner. The Chief of Staff may appoint alternates who meetthe standards — described above and whocan serve if a Hearing Committee member becomes unavailable. b. Alternatively, an arbitrator may be used whoisselected using a process mutually accepted by the body whose decision promptedthe hearing and thepractitioner. The arbitrator need notbe eithera health professional or an attorney. The arbitrator shall carry out all of the duties assigned to the Hearing Officer and to the Hearing Committee. c. The Hearing Committee, or the arbitrator, if one is used, shall have such powers as are necessary to dischargeits or his or her responsibilities. 14.6-5 The Hearing Officer ’ COMMENT:RecentCalifornia cases havecalled into question the mannerin which Hearing Officers are selected. Thus, while Option 1, below, is a variation on the traditional (unilateral) method for securing a Hearing Officer and remains consistent with Business & Professions Code Section 809.2, Option 2 addresses concernsthat have beenraised in these recent court cases (see Yaqub v. Salinas Valley Memorial Healthcare System, 122 Cal.App.4th 474 (2004); rehearing denied October 6, 2004, review denied January 12, 2005) and Haas v. County of San Bernardino, 27 Cal.App.4th 10147 (2002). Option 2 describesa listing service that is expected to be operational by early 2011. Hospitals interested in Option 2 should check with CHAor the California Society for Healthcare Attorneys (CSHA)to seeif the service is yet operational, and may wish to adopt Option 1 to be effective until Option 2 is available. [Option 1 (to be operational until the hearing officer listing service described in Option 2 is operational)] 87 CHA Model Medical Staff Bylaws 2011 a. [The use of a Hearing Officer to preside at a hearing is mandatory. The appointmentof a Hearing Officer shall be by the Chief Executive Officer, as a representative of the Medical Executive Committee, as follows:] 1. [Together with the notice of a hearing, the practitioner shall be provideda list of at least three but no more thanfive potential Hearing Officers meeting the criteria set forth in Bylaws, Section 14.6-5(b), below] 2. [The practitioner shall have five work days fo accept anyofthe listed potential Hearing Officers, or to proposeat least three but no more thanfive other namesofpotential Hearing Officers meeting the criteria set forth in Bylaws, Section 14.6-5(b), below.] 88 CHA Medel Medical Staff Bylaws 2011 3. [lf the practitioner is represented by counsel, the parties’ counsel may meet and conferin an attempt to reach accordin the selection of a Hearing Officer from the two parties’lists.] 4. [if the parties are not able to reach agreementon the selection of a Hearing Officer within five working days of receiptof the practitioner's proposedlist, the hospital’s Chief Executive Officer shall select an individual from the compositelist.] 5. [Unless a Hearing Officeris selected pursuant fo stipulation of the parties, he/she shall be subject to reasonable voir dire.] [Option2 to be operational once the hearing officerlisting service described in Option 2 is operational] a. [The use of a Hearing Officer to preside at a hearing is mandatory. Unless otherwise agreed upon by the practitioner and the Medical Staff, the following procedure shall be used to select the Hearing Officer] 1. [As part of his/her request for a hearing pursuant to Bylaws, Section 14.3-2, the practitioner mustlist five attorneys who the practitioner would accept as a Hearing Officer, three of whose names must be obtained from the list maintained by the hearing officerlisting service operated by the California Societ for Healthcare Attorneys, or such other hearing officer listing service as " may be endorsedfor that purpose by both the California Medical Association (CMA) and the California Hospital Association (CHA). The Medical Staff may then, select the Hearing Officer from the practitioner's list. Failure of the practitioner to submit the requisite list shall constitute a waiver of any right to participate in the Hearing Officer selection process and the Medical Stalf may then select a duly qualified Hearing Officer] 2. [lf the MedicalStaff is not willing to accept any ofthe five proposed Hearing Officers identified by the practitioner, the Medical Staff, within five working days ofreceipt of the practitioner'slist, must provide the practitioner an alternative writtenlist of five potential Hearing Officers (three of whom must be obtained from the hearing officerlisting service). Failure to provide an alternativelist within the five working days shall constitute a waiverof the right to reject the practitioner's list and the Medical Staff would then be required to select one of the persons previously identified by the practitioner frorn the hearing officerlisting service list as the Hearing Officer.] 3. [If the Medical Staff provides an alternative list, the practitioner has five working days to select fhe Hearing Officer from thatlist. The failure of the practitioner to respond to the proposed candidates within the five working days shall constitute a waiverofthe right to reject the Medical Staff's alternative list and the Medical Staff may then select anyone from thatlist asthe Hearing Officer] 4. [If the practitioner timely rejects all of the Hearing Officer candidates from the Medical Staff's alternativelist, the Medical Staff, within five working days, shall contact the hearing officer listing servicefor a finallist of five additional Hearing Officer candidates. In submittingits request, the Medical Staff may ask the hearing officerlisting service to screen potential candidates for obvious conflicts and availability. Once the list has been supplied, if the Medical Staff and the practitioner cannot agree upon a candidate, the Medical Staff andthe practitioner shall, in turn, each strike two candidates and the remaining candidate shall be the Hearing Officer. The side that strikes first shall be determined by lot. Unless a Hearing Officeris selected pursuantto stipulation of the parties, as opposedto striking candidate names, he/she shall be subject to reasonable voir dire.] 5. [Unless waivedby the parties, the Hearing Officer so selected must meet the qualifications set forth in Bylaws, Section 14.6-5(b), below] COMMENT: CSHA’s hearing officerlisting service is expected to be operational by early 2011, and is a recommended source for procuring qualified hearing officers. In the future other organizations may develop such resources, andin such cases endorsement by CHA and CMAprovides a good benchmark. 89 CHA Model Medical Staff Bylaws 2011 b. The Hearing Officer shall be an attorney at law qualified to preside over a quasi- judicial hearing, but attorneys from a firm regularly utilized by the hospital, the MedicalStaff or the involved Medical Staff memberor applicant for membership,for legal advice regarding their affairs and activities shall not be eligible to serve as Hearing Officer. The Hearing Officer shall gain no direct financial benefit from the outcome and mustnotact as a prosecuting officer or as an advocate. c. The Hearing Officer shall preside over the voir dire process and may question panel membersdirectly, and shall makeall rulings regarding service by the proposed hearing committee members or the Hearing Officer. The Hearing Officer shall endeavorto assure thatall participants in the hearing have a reasonable opportunity to be heard andto present relevant oral and documentary evidencein anefficient and expeditious manner, and that proper decorum is maintained. The Hearing Officer shall be entitled to determine the order of or procedure for presenting evidence and argumentduring the hearing andshall have the authority and discretion to makeall rulings on questions which pertain to mattersoflaw, - procedureor the admissibility of evidence. d. The Hearing Officer’s authority shall include, but not be limited to, making rulings with respect to requests and objections pertaining to the production of documents, requests for continuances, designation and exchange of proposed evidence, evidentiary disputes, witness issues including disputes regarding expert witnesses, and setting reasonable schedules for timing and/or completion ofall matters related to the hearing. e, If the Hearing Officer determines thateither side in a hearingis not proceedingin an efficient and expeditious manner, the Hearing Officer may take such discretionary action as seems warranted by the circumstances,including, but notlimitedto, limiting the scope of examination and cross-examination andsetting fair and reasonable time limits on either side’s presentation ofits case. [Under extraordinary circumstances, the Hearing Officer may recommendtermination of the hearing; however, the Hearing Officer may not unilaterally terminate the hearing and may only issue an order that would have the efect of terminating the hearing (a “termination order’) at the direction of the Hearing Committee. The terminating order shall be in writing and shall include documentation ofthe reasons therefore. if a terminating orderis against the Medical Executive Committee, the charges against the practitioner will be deemed to have been dropped.If, instead, the terminating orderis against the practitioner, the practitioner will be deemed to have waivedhis/herright to a hearing. The party against whom termination sanctions have been ordered may appealthe terminating order to the hospital Governing Body. The appeal must be requested within 10 days of the ferminating order, and the scopeofthe appeal shall be limited to reviewing the appropriateness of the terminating order. The appeal shail be conducted in general accordance with the provisions of Bylaws, Section 14.7. If the order is found to be unwarranted, the Hearing Committee shall reconvene and resumethe hearing.If the Governing Body determinesthat the terminating order should not have been issued, the matter will be remanded to the Hearing Committee for completion of the hearing.] COMMENT: The California Supreme Court, in Mileikowski v. WestHills Med. Ctr. (Supreme Ct. 2009) 45 Cal.4th 1259, determined that a hearing officer may notunilaterally terminate a hearing, as such a decision is tantamountto a decision on the merits, which decisions should only be made by the Hearing Committee. CHA’s Interim amendments (published in August 2010) partially addressed this development. The above changesfurtherclarify the issuanceof a terminating order, and the appealrights associated with such an order. 90 CHA Model Medical Staff Bylaws 2011 f. Upon adjournmentof the evidentiary portion of the hearing, the Hearing Officer shall.meet with the membersofthe hearing committee to assist them with the processfor their review of the evidence and preparation of the reportoftheir decision. Upon request from the hearing committee members, the Hearing Officer may remain during the hearing committee’s full deliberations. During the deliberative process, the Hearing Officer shall act as legal advisor to the hearing committee, but shall not be entitled to vote. g. In all matters, the Hearing Officer shall act reasonably under the circumstances and in compliance with applicable legal principles. In making rulings, the Hearing Officer shall endeavor to promote less formal, rather than more formal, hearing process and also to promote the swiftest possible resolution of the matter, consistent with the standardsoffairness set forth in these Bylaws. When no attorney is accompanying any party to the proceedings, the Hearing Officer shall have authority to interpose any objections andto initiate rulings necessary to ensure a fair and efficient process. h. [Further Optional Provision: To the extent that any provision in this Section of these Bylaws may conflict with any other provision of the Bylaws (e.g. granting certain duties and authority to the Chair of the Hearing Committee), this provision shall preempt and control] COMMENT:Bylaws, Section 14.6-5(g), above,is a further optional provision under Option 2. If this provision is adopted, any otherprovisionsin the Bylawswill be superseded to the degree they may conflict with provisionsin this Bylaws, Section 14.6-5 relating to the powers and duties of the Hearing Officer. Thus, for example,if anotherprovision in the Medical Staff's Bylawsgrants similar powers or duties to the Chair of the hearing committee,then this optional provision would nullify those provisions and vest such powersandduties in the Hearing Officer. Each Medical Staff should considercarefully before adopting this provision to be sureit intends to supersede any such provisions that may exist. 14.6-6 Representation COMMENT:Attorney representation atthe initial hearing stage is optional under California law. However, the federal Health Care Quality Improvement Act (HCQIA) provides that one of the necessary elementsfor the safe harbor immunity is attorney represetitation atall stages of the hearing and any appeal process. While it may be possible to deny attorney representation attheinitial hearing (and still gain the protection of the HCQIA by showingthat the hearing was nonetheless a fair hearing), the hospital and the Medical Executive Committee would haveto provethe fairness of the process(rather than being able fo rely on the presumption offairness that accompanies compliance with the safe harborprovisions}. Prior editions of these Model Bylaws included twooptions, one providing that there would be noright to an attorney, but that the Hearing Officer had discretion to permit attorneys; the other providing right to attorney. Peerreview hearings have evolved to the point whereit is no longer advisable to deny a right to an attorney; hence,the old Option 1 has been deleted. CHA now recommendsthatall practitioners be afforded right to attorney representation in a hearing, subjectto the conditions of Business & Professions Code Section 809.3(c), as reflected in the below provisions. _ The practitionershall have the right, at his or her expense,to attorney representation at the hearing.If the practitionerelects to have attorney representation, the body whose decision prompted the hearing mayalso have attorney representation. Conversely, if the practitioner elects not to be represented by an attorney in the hearing, then the body whose decision prompted the hearing shall not be represented - by an attorney in the hearing. When attorneysare notallowed,the practitioner and the body whose decision promptedthe hearing may be representedat the hearing only by a practitionerlicensed to practice in the State of California whois notalso an attorney. 91 CHA Model Medical Staff Bylaws ; 2011 14.6-7 Failure to Appear or Proceed Failure without good cause of the practitionerto personally attend and proceedat a hearing in an efficient and orderly mannershall be deemed to constitute voluntary acceptance of the recommendationsoractions involved. 14.6-8 Postponements and Extensions Once a request for hearing is initiated, postponements and extensions of time beyond the times permitted in these Bylaws maybe permitted upon a showingof good cause, as follows: a. Until such time as a Hearing Officer has been appointed, by the Hearing Committee or its Chair acting uponits behalf; or b. Once appointed by the Hearing Officer. COMMENT:Oncea Hearing Officer has been appointed,itis generally more feasible to have the Hearing Officer rule on requests for postponement. 14.6-9 Discovery a. Rights of Inspection and Copying. The practitioner may inspect and copy(athis or her expense) any documentary informationrelevantto the chargesthat the Medical Staff has in its possession or under its control. The body whose decision prompted the hearing may inspect and copy(at its expense) any documentary information relevant to the charges that the practitioner has in his or her possession or under his or her control. The requests for discovery shall befulfilled as soon as practicable. Failures to comply with reasonable discovery requests at least 30 days prior tto the hearing shall be good causefor a continuanceofthe hearing. b. Limits on Discovery. The Hearing Officer shall rule on discovery disputestheparties cannot resolve. Discovery may be denied whenjustified to protect peer review or in the interest of fairness and equity. Further, the right to inspect and copybyeither party does not extend to confidential informationreferring to individually identifiable practitioners other than the practitioner under review nordoesit create or implyany obligation to modify or create documents in orderto satisfy a request for information. c. Ruling on Discovery Disputes. In ruling on discovery disputes, the factors that may be considered include: 1. Whether the information sought may be introduced to support or defend the charges; 2. Whetherthe information is exculpatory in that it would dispute ort cast doubt upon the chargesor inculpatory in that it would prove or help supportthe charges and/or recommendation; 3. The burden on the party of producing the requested information; and 4. What other discovery requests the party has previously made. d. Objections to Introduction of Evidence Previously Not Produced for the Medical Staff. The body whosedecision prompted the hearing may object to the introduction of the evidence that was not provided during an appointment, reappointmentorprivilege application review or during corrective action despite the requests of the peer review 92 CHA Model Medical Staff Bylaws 2011 body for such information. The information will be barred from the hearing by the Hearing Officer unless the practitioner can prove heor she previouslyacted diligently and could not have submitted the information. 14.6-10 Pre-Hearing Document Exchange At the requestof either party, the parties must exchangeall documentsthatwill be introducedat the hearing. The documents must be exchangedatleast 10 days priorto the hearing. A failure to comply with this rule is good cause for the Hearing Officer to grant a continuance. Repeatedfailures to comply shall be good causefor the Hearing Officer to limit the introduction of any documents not providedto the otherside in a timely manner. 14.6-11 Witness Lists Not less than 15 days prior to the hearing, each party shall furnish to the other a written list of the names and addresses ofthe individuals,so far as is then reasonably knownoranticipated, who are expectedto give testimony or evidence in support of that party at the hearing. Nothingin the foregoing shall precludethe testimony of additional witnesses whose possible participation was not reasonably anticipated. The parties shall notify each other as soon as they become awareofthe possible participation of such additional witnesses. The failure to have provided the name of any witness at least 10 days prior to the hearing date at which the witnessis to appear shall constitute good cause for a continuance. 14.6-12 Procedural Disputes a. It shall be the duty of the parties to exercise reasonable diligencein notifying the Hearing Officer of any pendingor anticipated procedural disputes as far in advance of the scheduled hearing as possible in order that decisions concerning such matters may be madein advanceofthe hearing. Objections to any pre-hearing decisions may be succinctly madeat the hearing. b. The parties shall be entitled to file motions as deemed necessary to give full effect to rights established by the Bylaws and to resolve such procedural matters as the Hearing Officer determines may properly be resolved outside the presenceofthefull Hearing Committee. Such motionsshall be in writing and shall specifically state the motion, all relevant factual information, and any supporting authority for the motion. The movingparty shall deliver a copy of the motion to the opposingparty, whoshall have five working days to submit a written responseto the Hearing Officer, with a copy to the moving party. The Hearing Officer shall determine whetherto allow oral argument on any such motions. The Hearing Officer’s ruling shall be in writing and shall be provided to the parties promptly upon its rendering. All motions, ' responses andrulings thereon shall be entered into the hearing record by the HearingOfficer. 14.6-13 Record of the Hearing A court reporter shall be present to make a record of the hearing proceedings and the pre-hearing proceedings if deemed appropriate by the Hearing Officer. The cost of attendance of the court reporter shall be borne by the hospital, but the cost of the transcript, if any, shall be borne by the party requesting it. The practitioner is entitled to receive a copy of the transcript upon paying the reasonable cost for preparing the record. The Hearing Officer may, but shall not be required to, order that oral evidence 93 CHA Model Medical Staff Bylaws 2011 shall be taken only on oath administered by any person lawfully authorized to administer such oath. 14.6-14 Rights of the Parties Within reasonable limitations, both sides at the hearing may ask the Hearing Committee members and Hearing Officer questions whicharedirectly related to evaluating their qualifications to serve andfor challenging such membersor the Hearing Officer, call and examine witnesses for relevant testimony, introduce relevant exhibits or other documents, cross-examine or impeach witnesses whoshall have testified orally on any matter relevant to the issues, and otherwise rebut evidence, receive all information madeavailable to the Hearing Committee, and to submit a written statementat the close of the hearing, as long as these rights are exercised in an efficient and expeditious manner. Thepractitioner may be called by the body whose decision prompted the hearing or the Hearing Committee and examinedas if under cross-examination. The HearingCommittee may interrogate the witnessesorcall additional witnesses if it deems such action appropriate. 14.6-15 Rules of Evidence Judicial Rules of evidence and procedurerelating to the conductof the hearing, examination of witnesses, and presentation of evidence shall not apply to a hearing conducted underthese Bylaws, Article 14. Any relevant evidence, including hearsay, shall be admittedif it is the sort of evidence on which responsible persons are accustomedto rely in the conductof seriousaffairs, regardless of the admissibility of. such evidence in courtof law. 14.6-16 Burdens of Presenting Evidence and Proof a. At the hearing, the body whose decision prompted the hearing shall havetheinitial _ duty to present evidencefor each case or issue in supportofits action or recommendation. The practitionershall be obligated to present evidence in response. b. An applicant for membership and/orprivileges shall bear the burden of persuading the Hearing Committee, by a preponderanceofthe evidence, that he or sheis qualified for membership and/or the denied privileges. The practitioner must produce information which allows for adequate evaluation andresolution of reasonable doubts concerninghis or her current qualifications for membership and privileges. c. Except as provided above for applicants for membership and/orprivileges, throughout the hearing, the body whose decision promptedthe hearingshall bear the burden of persuading the Hearing Committee by a preponderanceoftheevidence, that its action or recommendation was reasonable and warranted. 14.6-17 Adjournment and Conclusion The Hearing Officer may adjourn the hearing and reconvene the samewithoutspecial notice at such times and intervals as maybe reasonable and warranted with due consideration for reaching an expeditious conclusion to the hearing. 14.6-18 Basis for Decision The decision of the Hearing Committee shall be based on the evidence and written statements introducedat the hearing, includingall logical and reasonable inferences from the evidence andthetestimony. 94 CHA Model Medical Staff Bylaws 2011 14.6-19 Presence of Hearing Committee Members and Vote A majority of the Hearing Committee must be present throughout the hearing and deliberations. In unusual circumstances when a Hearing Committee member must be absent from any part of the proceedings,he or she shall not be permitted to participate in the deliberations or the decision unless and until he or she has read the entire transcript of the portion of the hearing from which heor she was absent. Thefinal decision of the Hearing Committee mustbe sustained by a majority vote of the number of members appointed. 14.6-20 Decision of the Hearing Committee Within 30 daysafter final adjournmentofthe hearing, the Hearing Committee shall render a written decision. Final adjournmentshall be when the Hearing Committee has concludedits deliberations. A copy of the decision shall be forwarded to the Chief Executive Officer, the Medical Executive Committee, the Governing Body, and by special noticeto the practitioner. The reportshall contain the Hearing Committee’s findings of fact and a conclusion articulating the connection between the evidence producedat the hearing and the decision reached. Both thepractitioner and the body whose decision prompted the hearingshall be provided a written explanation ofthe procedure for appealing the decision. Thedecision of the Hearing Committee shall be consideredfinal, subject only to such rights of appeal or Governing Body review as described in these Bylaws. COMMENT:With the changes permitting appeals ofpreliminary hearings, the above wording regardingpractitioners under summary suspensionis no longer needed(as the physician will have already had an opportunity to have an expedited review (via preliminary hearing and appeal) of the summary suspension decision). 14.7 Appeal [These procedures apply to appeals from the results of a preliminary hearing (as described at Bylaws, Section 14.5), as well as appeals from thefull hearing; however, in the context of an appealfrom a preliminary hearing, the appeal Hearing Officer shall be empoweredto adjust time frames and modify procedures as necessary to achieve a timely appealfrom a preliminary hearing.] 14.7-1 Time for Appeal Within 40 daysafter receiving the decision of the Hearing Committee, either the practitioner or the Medical Executive Committee may request an appellate review. A written request for such review shall be deliveredto the Chiefof Staff, the Chief Executive Officer and the otherside in the hearing. If appellate review is not requested within such period, that action or recommendation shall thereupon becomethefinal action of the Medical Staff. The Governing Body shall considerthe decision within 70 days, and shail give it great weight. 14.7-2 Time, Place and Notice If an appellate review is to be conducted, the Appeal Board shall, within 30 days after receiving a request for appeal, schedule a review date and causeeach sideto be given notice (with special notice to the practitioner) of the time, place, and date of the appellate review. The appellate review shall commence within 60 days from the date of such notice provided; however, when a requestfor appellate review concerns a member whois under suspension whichis then in effect, the appellate review should commence within 45 days from the date the request for appellate review was received[if the Appeal 95 CHA Model Medical Staff Bylaws 2011 Board is conducting an appealof the results of a preliminary hearing]. The time for appellate review may be extended by the Appeal Board for good cause. 14.7-3 Appeal Board The Governing Body maysit as the Appeal Board,or it may appoint an Appeal Board which shall be composedof notless than three members of the GoverningBody. Knowledge of the matter involved shall not preclude any person from serving asa memberof the Appeal Board,so longas that persondid nottakepart in a prior hearing on the same matter. The Appeal Board mayselect an attorneyto assist it in the proceeding. If an attorney is selected, he or she mayact as an appellate Hearing Officer and shall have all of the authority of and carry outall of the duties assigned to a Hearing Officer as described in this Article 14. That attorney shall not be entitled to vote with respect to the appeal. The Appeal Board shall have such powersas are neces- sary to discharge its responsibilities. 14.7-4 Appeal Procedure The proceeding by the Appeal Board shall, at the discretion of the Appeal Board, either be a de novo hearing or an appellate hearing based upontherecord of the hearing before the Hearing Committee, provided that the Appeal Board may accept additional oral or written evidence, subject to a foundational showingthat such evidence could not have been madeavailable in the exercise of reasonable diligence and subjectto the samerights of cross-examination or confrontation providedat the hearing;or the Appeal Board may remandthe matter to the Hearing Committeeforthe taking of further evidence andfor decision. Eachparty shall have the right to be represented by legal counselor any other representative designated by that party in connection with the appeal. The appealing party shall submit a written statementconcisely stating the specific groundsfor appeal. In addition, each party shall have the right to present a written statement in supportofhis, her or its position on appeal. The appellate Hearing Officer may establish reasonable time framesfor the appealing party to submit a written statement and for the responding party to respond. Each party hasthe right to personally appear and makeoral argument. The Appeal Board maythen,at a time convenient to itself, deliberate outside the presenceofthe parties. 14.7-5 Decision a. Within 30 daysafter the adjournmentof the appellate review proceeding (10 daysif the Appeal Board is conducting an appealofthe results of a preliminary hearing)], the Appeal Board shall rendera final decision in writing. Final adjournmentshall not occuruntil the Appeal Board has completedits deliberations. b. The Appeal Board may affirm, modify, reverse the decision or remand the matter for further review by the Hearing Committee or any other body designated by the Appeal Board. c. The Appeal Board shall givegreat weight to the Hearing Committee recommendation, and shall not act arbitrarily or capriciously. Unless the Appeal Boardelects to conducta de novo review,the Appeal Board shall sustain the factual findings of the Hearing Committeeif they are supported by substantial evidence. The Appeal Board may, however,exerciseits independent judgmentin determining whethera practitioner was afforded a fair hearing, whetherthe decision is reasonable and warrantedin light of the supported findings, and whetherany bylaw,rule or policy relied upon by the Hearing Committee is unreasonable or unwarranted. The 96 CHA Model Medical Staff Bylaws 2011 decision shall specify the reasonsfor the action taken and provide findingsof fact and conclusionsarticulating the connection between the evidence producedat the hearing andthe appeal(if any), and the decision reached,if such reasons, findings and conclusions differ from those of the Hearing Committee. COMMENT: Recommendedclarifications and adding deferenceto the factualfindings of the Hearing Committee. d. The Appeal Board shall forward copies of the decision to each side involvedin the hearing. e. The Appeal Board may remandthe matter to the Hearing Committee or any other body the Appeal Board designates for reconsideration or may refer the matter to the full Governing Bodyfor review. If the matter is remandedfor further review and recommendation, the further review shall be completed within 30 days /(15 daysif the remandis in the context of an appeal from a preliminary hearing)] unless the parties agree otherwise or for good cause as determined by the Appeal Board. 14.8 Administrative Action Hearings The following modifications to the hearing process apply when the Medical Executive Committee (or Governing Body) has taken or recommended an action described in Bylaws, Section 14.2 for a non-medicaldisciplinary cause or reason. Such actions shall be deemed administrative disciplinary actions. 14,8-1 Administrative Action Hearing The affected practitioner shall be entitled to an administrative action hearing, conducted in accordancewith Bylaws, Section 14.6, except as follows: a. At the election of the body whose decision promptedthe hearing, the hearingshall be conducted by an arbitrator, meeting the qualifications of Bylaws, Section 14.6- 4(b), and selected by mutual agreementof the parties, if agreement can be reached within 10 days,failing which the arbitrator shall be selected by the body whose decision promptedthehearing. b. The arbitratorshall haveall of the rights and responsibilities of a Hearing Officer and a Hearing Committee, as described in Bylaws, Section 14.6. c. At the election of the body whosedecision prompted the hearing,both parties shall have the right to be represented by an attorney, whetherornotthe other party elects to be represented by an attorney. Theparties shall be notified of this election at the time the practitioneris notified of his/herright to a hearing. If attorney representationis permitted, the parties shall promptly notify each otherof their elections regarding attorney representation, together with the name and contact information oftheir attorneys. 14,8-2 Nonreportability of Administrative Actions Administrative disciplinaryactions are not reportable to the Medical Board of California or the NationalPractitioner Data Bank. 14.8-3 Nonwaiver of Protections Notwithstandingthe foregoing,it is understood that circumstancesprecipitating administrative disciplinary actions may nonetheless involveor affect quality of care in the hospital (e.g., conduct that does or may impair theability of others to render 97 CHA Model Medical Staff Bylaws 2011 quality care, or that affects patients’ perceptions of the quality of care rendered in the hospital). Processing a matter as and administrative disciplinary action does not waive any protections that may be available under California or federal law for peer review actions taken in furtherance of quality of care or services providedin the hospital. COMMENT:This newprovision is designed to provide an opportunity for a more expeditious hearing for non-medical disciplinary actions. While in theory the administrative hearing could be structured even simpler than we have recommended here, we believe the major delay associated with hearings comes with the difficulty of scheduling a hearing committee. This provision, allowing the useof an arbitrator to conduct and decide the hearing, should significantly simplify scheduling issues. Moreover, becausethearbitrator would have the authority of both the Hearing Officer and the Hearing Committee, he/she would be able to issue a terminating orderin the event either party does not proceed expeditiously. Finally, since the hearing does notinvolve medical disciplinary actions, the Business & Professions Code Section 809.03 provision regarding attorneys does not apply. The above provision allows the peer review body to determine whetherto permit attorneys, and attorney representation is not contingent upon the affected practitioner's election. As a result, the MEC will know from the outset whetherit will be represented by an attorney, andif So, the attorney can prepare the case withoutrisk thatthe practitioner will changehis/her mind atthe last minute.(This latter feature of medicaldisciplinary actions frequently necessitates duplicate preparation by counsel and the MEC representative and/or causes delaysin proceedings.) Some caution is warranted. Whetherornotall of the protections and immunities typically associated with medical staff hearings will apply to an administrative hearing will depend on the facts and circumstancesof the matters at issue in any particular case. In many cases, even though a matteris not medical disciplinary perse,it maystill involve evaluation and improvement of quality of care in the hospital. For example,disruptive behavior that does notdirectly impact anyindividual patient’s care, may nonethelessinvolve conductthat could affect others’ ability to provide care, or thé patients’ perceptions with respect to quality of care.In these types of cases, the protections would likely still be available. (The foregoing comments are not meant to suggest thatonly direct impact on individualpatient care is a prerequisite to a medicaldisciplinary action. In many cases,these types of issues are and should remain handled as medical disciplinary matters.)In other cases,therelationshipto quality of care may be moreillusive — e.g., sexual harassmentof an administrative staff member. Indeed, the more tangential the conductis to the quality of care, the more reluctant MedicalStaffs have typically been to effectively address the issues, and one of the main reasons forthis recalcitrance is the reportability, to the Medical Board and the Data Bank,of- medicaldisciplinary actions. The administrative discipline and administrative hearing provisions addedto these Bylaws and Rules are new tools to help address these thorny issues. Seealso, related changesto the Conductguidelines at Bylaws, Section 2.7-3, and to Rule 3, Standards of Conduct and Appendix 4K, Quality Improvement Committee — all designed to give hospitals and Medical Staffs new approaches for addressing thesedifficult problems. 14.9 Right to One Hearing © Nopractitioner shall be entitled to more than one evidentiary hearing and one appellate review on any matter which shall have been the subject of adverse action or recommendation. COMMENT:This provision applies to both hearings and appeals, and as such should be elevated to a Section level (rather than a subsection), 14.10 Confidentiality To maintain confidentiality in the performanceofpeer review,disciplinary and credentialing functions, participants in any stage of the hearing or appellate review processshall limit their discussion of the matters involved to the formal avenues provided in the MedicalStaff Bylaws. COMMENT: District hospitals should add the following provision. 98 CHA Model Medical Staff Bylaws 2011 [All proceedings conducted pursuantto these Bylaws, Article 14, shall be held in private unless otherwise ordered by the Governing Body pursuantto a request of the practitioner. The practitioner may requesta public hearing. Prior to exercising its discretion on any requestfor a public hearing, the Governing Body shall seek and consider the comments of the Medical Executive Committee as to the implications and feasibility of conducting such a hearing in public] 14.11 Release By requesting a hearing or appellate review under these Bylaws, a practitioner agreesto be boundby the provisions in the MedicalStaff Bylaws relating to immunity fromliability for the participants in the hearing process. 14.12 Governing Body Committees In the event the Governing Body should delegate someorall of its responsibilities described in these Bylaws,Article 14 to its committees (including a committee serving as an Appeal Board), the Governing Body shall nonetheless retain ultimate authority to accept, reject, modify or return for further action or hearing the recommendationsof its committee. 14.13 Exceptions to Hearing Rights 14.13-1 Exclusive Use [Departments] [Services], Hospital Contract Practitioners a. Exclusive Use [Departments] [Services] The proceduralrights of Bylaws, Article 14 do not apply to a practitioner whose application for Medical Staff membership and privileges was denied or whose privileges were terminated on the basis that the privileges he or she seeks are granted only pursuant to an exclusive use policy. Such practitioners shall have the right, however, to request that the Governing Body review the denial, and the Governing Body shall have the discretion to determine whetherto review such a request and,if it decides to review the request, to determine whetherthe practitioner may personally appear before and/or submit a statement in support of his or her position to the Governing Body. b. Hospital Contract Practitioners COMMENT:Seethe note in Bylaws, Section 2.5-2 regarding also terminating membership, as well as privileges, when an exclusive arrangementis terminated andthe practitioner has no otherprivileges. The hearingrights of Bylaws, Article 14 do not apply to practitioners who have contracted with the hospital to provideclinical services. Removalof these practitioners from office and of any exclusive privileges (but not their Medical Staff membership) shall instead be governed by the termsof their individual contracts and agreements with the hospital. The hearing rights of Bylaws,Article 14 shall applyif an action is taken which must be reported under Business & Professions Code Section 805 and/orthepractitioner’s Medical Staff membership status or privileges which are independentofthe practitioner’s contract are removed or suspended. 14.13-2 Allied Health Professionals [Option 1 (corresponds to Option 2 at Bylaws, Section 6.6-1)] [Allied Health Professional applicants (other than AHPs whoarethe subject of an action that must be reported under Business & Professions Code Section 805) are not entitled to the hearing 99 CHA Model Medical Staff Bylaws 2011 rights setforth in this Article. However, Allied Health Professionals whose already-granted privileges are subject to an action that would constitute grounds for a hearing under Bylaws, Section 14.2-2 through Section 14.2-6 shall be entitled to the procedural rights setforth in this Article 14.] {Option 2 (corresponds to Option 3 at Bylaws, Section 6.6-1)] [Allied Health Professionals are notentitled to the hearing rights set forth in this Article unless the action is one that must be reported under Business & Professions Code Section 805. (See Section 6.6-1 for a description of Allied Health Professional hearing rights where no 805 report is required.)] COMMENT:California law now requires 805 reporting for marriage and family therapists and clinical social workers. If theselicentiates are credentialed as AHPs,they, too, need to be afforded Article 14 hearing rights.The Medical Staff will needto tailor this Section to correspond with the option selected for Bylaws, Section 6.6-1. 14.13-3 Denial of Applications for Failure to Meet the Minimum Qualifications Practitioners shall not be entitled to any hearingor appellate review rightsif their membership,privileges, applications or requests are denied because oftheirfailure to have a current California license to practice medicine, dentistry, [clinical psychology] or podiatry; to maintain an unrestricted Drug Enforcement Administrationcertificate (whenit is required under these Bylawsor the Rules); to maintain professional liability insurance as required by the Rules; or to meet any of the otherbasic standards specified in Bylaws, Section 2.2-2 or to file a complete application. 14.13-4 Automatic Suspension or Limitation of Privileges a. No hearing is required when a member’s licenseor legalcredential to practice has been revoked or suspendedasset forth in Bylaws, Section 13.3-1. In other cases described in Bylaws, Section 13.3-1 and Section 13.3-2, the issues which may be considered at a hearing, if requested, shall not include evidence designed to show that the determination by the licensingor credentialing authority or the Drug Enforcement Administration was unwarranted, but only whether the member may continue to practice in the hospital with those limitations imposed. b. Practitioners whoseprivileges are automatically suspended and/or who have resigned their Medical Staff membership forfailing to satisfy a special appearance (Bylaws, Section 13.3-3), failing to complete medical records (Bylaws, Section 13.3- 4), failing to maintain malpractice insurance (Bylaws, Section 13.3-5), failing to pay dues (Bylaws, Section 13.3-6), or failing to comply with particular governmentor other third party payor Rulesor policies (Bylaws, Section 13.3-7) are not entitled under Bylaws, Section 13.3-9 to any hearing or appellate review rights except when a suspensionfor failure to complete medical recordswill exceed 30 daysin any 12- month period, and it must be reported to the Medical Boardof California. 14.13-5 Failure to Meet Minimum Activity Requirements Practitioners shall not be entitled to the hearing and appellate review rights if their membership or privileges are denied, restricted or terminated or their MedicalStaff categories are changedor not changed becauseof a failure to meet the minimum activity requirements set forth in the Medical Staff Bylaws or Rules. In such cases, the only review shall be providedby the Medical Executive Committee through a subcommittee consisting of at least three Medical Executive Committee members. The subcommittee shall give the practitioner notice of the reasonsfor the intended denial 100 CHA Model Medical Staff Bylaws |2011 or change in membership,privileges, and/or category and shall schedule an interview with the subcommittee to occur noless than 30 days and no more than 100daysafter the date the notice was given. At this interview,the practitioner may presentevidence concerning the reasonsforthe action, and thereafter the subcommittee shall render a written decision within 45 days after the interview. A copy of the decision shall be sent to the practitioner, Medical Executive Committee and Governing Body. The subcommittee decision shall be final unless it is reversed or modified by the Medical Executive Committee within 45 days after the decision was rendered,or the Governing Body within 90 days after the decision was rendered. 14.14 [Joint Hearings and Appeals for System Members] 14,14-1 [Joint Hearings] a. [Whenevera practitioneris entitled to a hearing because a coordinated, cooperative orjoint credentialing or corrective action has been taken or recommended pursuantto Bylaws, Section 13.6, a single joint hearing may be conducted in accordance with hearing procedures that have beenjointly adopted by the involvedentities, provided such procedures are substantially comparableto those set forth in Bylaws, Section 14.5 and further providedat least one member of the Hearing Committee is a memberofthis hospital’s Medical Staff] b. [in the eventthere is such a joint hearing, the recommendation of the Hearing Committee shall be reportedto this hospital’s Governing Bodyforfinal action] 14.14-2 [Joint Appeals] [The procedures mayalsocall forjoint appeal rights, provided such procedures are substantially comparable to those set forth in Bylaws, Section 14.7 and, further, providedthat at least one memberof the Appeal Board is a representative ofthis hospital’s Governing Body.] 14,14-3 [Effect of Joint Hearings/Appeals] [A joint hearing and/or appeal in accordance with the foregoing shall be deemed to satisfy proceduralrights afforded-to the practitioner pursuant to Business & Professions Code Section 809 ef seq.] 14.14-4 [Provision for Separate Hearing] [Notwithstanding the foregoing, if a practitioner can demonstrate to the Medical Executive Committee (in the case of a hearing based on a recommendation of the Medical Executive Committee) or the Governing Body(in the case of a hearing based on a recommendation of the Governing Bodyorin the case of an appeal) prior to theinitiation ofa joint hearing and/or appealthatthe benefits of quasi-judicial economyandefficiency are outweighed by particular burdens or unfaimess uniqueto the individual practitioner's circumstances, the Medical Executive Committee or Governing Body may,inits sole discretion, order that a separate hearing and/or appeal be conductedsolely with respectto privilegesat this hospital, in accordance with this hospital's Hearing and Appellate Review Provisions. (Examples of such unique burdens or unfairness would include unavailability of witnesses or documents to the joint proceeding; but the mere fact that the outcome would affectprivileges at more than one facility would not ordinarily be deemedsufficient to preclude a joint hearing.)} 101 CHA Model Medical Staff Bylaws | 2011 Article 15 General Provisions 15.1 Rules and Policies COMMENT:The Joint Commission's (TJC) MS.01.01.01, Elements of Performance8, 9, 10, and 11 permit the Medical Executive Committee (MEC) to adopt Rules, subjectto the following additional requirements: * Exceptin circumstances wherethere is an urgent need to amend to comply with law or regulation, the MEC must provide prior notice to the Medical Staff of proposed changes. * Wherethere has not been prior notice (due to urgent need), the MEC must providenotice of urgently-adopted provisions, an opportunity for retrospective review, and a processfor conflict resolution. * Additionally, the Medical Staff must be permitted to propose Bylaws, Rules and policies and present them directly to the Governing Body for approval (without necessity for MEC approval of the proposed provision). * Finally, there must be a conflict resolution process for managing those situations where the Mecical Staff and the MEC do not agree. The below provisions are developed to accommodate these new TJC requirements. Of note, CHA recommendsthat there be a reasonable threshold for how the “Medical Staff" maydirectly propose a Rule to the Governing Body, and how they may invoke dispute resolution —j.e., who is entitled to act on behalf ofthe Medical Staff. Since only voting members of the Medical Staff are entitled to vote on any proposed Rule, the threshold should involve a stated numberor percentageofthe voting MedicalStaff. As to whereto set that threshold,the following considerations appearrelevant: * The numbershould be sufficiently high so thatthe interestsofindividuals or a disgruntled few are not controlling of the processes. Butit also needsto be setin recognition that in small medicalstaffs, the interests of a few may representthe prevailing view of the MedicalStaff. Finally, the number should be reasonable — i.¢., not so high that the provisions can never be invoked, * With these considerations in mind, the following numbers are suggested: ~ Forall Medical Staffs — at least 50% of the voting members {this is on the theory that it would require a majority vote fo pass the provision anyway, so this level of support should be demonstrated from the outset]OR [The below optionsreflect ranges that call for a reasonable measure ofpreexisting support as a prerequisite to.embarking on the process, on the theory that the proponents would have the opportunity fo build additional support through the process.] ~ For Medical Staffs with 1-20 voting members: 25 — 50% of the voting members ~ For Medical Staffs with 21-100 voting members: 25 - 30% of the voting members * Note changes addedsince publication of the Interim amendments, adding the actual vote procedures for changes proposed by petition of the Medical Staff. 15.1-1 Overview and Relation to Bylaws These Bylaws describe the fundamentalprinciples of Medical Staff self-governance and accountability to the Governing Body. Accordingly, the key standards for Medical Staff membership, appointment, reappointmentandprivileging areset outin these Bylaws. Additionalprovisions, including, but not limited to, procedures for implementing the Medical Staff standards maybe set out in MedicalStaff for department] Rules, or in 102 CHA Model Medical Staff Bylaws 2011 policies adopted or approved as described below. Upon proper adoption, as described below, all such Rules andpolicies shall be deemedan integral part of the MedicalStaff Bylaws. COMMENT:TJC’s new MS.01.01.01 permits muchdiscretion regarding which provisions will appearin the Bylaws and which will appearin the Rulesor policies. The only limitation is that for those Elementsof Performancethat require a ‘process’the basic steps of the process mustbe set outin the Bylaws. TJC does not, however, prescribe or proscribe the contentof these “basic steps.” 15.1-2 General Medical Staff Rules The Medical Staff shall initiate and adopt such Rules as it may deem necessary and shall periodically review andrevise its Rules to comply with current MedicalStaff practice. New Rules or changes to the Rules (proposed Rules) may emanate from any responsible committee, department, medicalstaff officer, or by petition signed by at least [insert minimum numberorpercent] of the voting membersofthe MedicalStaff. Additionally, hospital administration may develop and recommendproposed Rules, and in any case should be consultedas to the impactof any proposed Rules on hospital operations andfeasibility. Proposed Rules shall be submitted to the Medical Executive Committee for review and action,as follows: a. Except as providedat Section 15.1-2(d), below, with respect to circumstances requiring urgent action, the Medical Executive Committee shall not act on the proposed Rule until the MedicalStaff has had a reasonable opportunity to review and comment on the proposed Rule. [This review and comment opportunity may be accomplished by posting proposed Rules on the Medical Staff website at least[thirty] [days prior to the scheduled Medical Executive Committee meeting, together with instructions how interested members may communicate comments. A comment period ofat least [15] days shall be afforded, and all comments shall be summarized and provided to the Medical Executive Committee prior to Medical Executive Committee action on the proposed Rule.] b. Medical Executive Committee approval is required, unless the proposed Ruleis one generated by petitionof at least [insert minimum numberorpercent] of the voting membersof the Medical Staff. In this latter circumstance,if the Medical Executive Committee fails to approve the proposed Rule,it shall notify the Medical Staff. The Medical Executive Committee and the MedicalStaff each hasthe option of invoking or waiving the conflict managementprovisionsof Section 15.1-6: 1. If conflict managementis not invoked within /30] daysit shall be deemed waived. In this circumstance, the Medical Staffs proposed Rule shall be submitted for vote, and if approved by the MedicalStaff pursuant to Section 15.1-2(b)(3), the proposed Rule shall be* forwarded to the Governing Body for action. The Medical Executive Committee may forward comments to the Governing Body regarding the reasons it declined to approve the proposed Rule. 2. If conflict managementis invoked, the proposed Rule shall not be voted upon or* forwardedto the Governing Body until the conflict managementprocess has been completed, and the results of the conflict managementprocessshall be communicated to the Governing Body. 3. With respect to proposed Rules generated by petition of the Medical Staff, approvalof the Medical Staff requires the affirmative vote of a majority of the Medical Staff members voting on the matter by mailed secret ballot, provided at 103 CHA Model Medical Staff Bylaws 2011 least 14 days’ advance written notice, accompanied by the proposed Rule,has been given, and atleast {insert minimum numberor percentof return votes required] votes have been cast.* c. Following approval by the Medical Executive Committee or favorable vote of the MedicalStaff as described above,* a proposed Rule shall be forwarded to the Governing Body for approval, which approval shall not be withheld unreasonably. The Rule shall becomeeffective immediately following approvalof the Governing Body or automatically within 60 daysif no action is taken by the Governing Body. d. Where urgentaction is required to comply with law or regulation, the Medical Executive Committee is authorized to provisionally adopt a Rule and forwardit to the Governing Bodyfor approval and immediate implementation, subject to the following. If the MedicalStaff did notreceive prior notice of the proposed Rule (as described at Section 15.1-2(a)) the Medical Staff shall be notified of the provisionally- adopted and approved Rule, and may,by petition signed by atleast[insert numberor percent] of the voting membersof the MedicalStaff require the Rule to be submitted for possible recall; provided, however, the approved Rule shall remaineffective until such time as a superseding Rule meeting the requirementsofthe law or regulation that precipitated theinitial urgency has been approved pursuantto any applicable provision of this Section 15.1-2. COMMENT:* Note changessince publication of Interim amendments, adding voting procedures, If there is a conflict between the Bylaws and the Rules, the Bylaws shall prevail. 15.1-3 [Department Rules] [Subject fo the approvalof the Medical Executive Committee and Governing Body, each department shall formulate its own Rules for conducting its affairs and dischargingits responsibilities. Additionally, hospital administration may develop and recommend proposed department Rules, and in any case should be consulted as to the impactofany proposed department Rules on hospital operations and feasibility. Such Rules shall not be inconsistent with the Medical Staff or hospital Bylaws, Rules or otherpolicies.] COMMENT:Bylaws,Section 15.1-3 should be included onlyif the Medical Staff departments are divided into Sections. if Section 15.1-3 is not included, 15.1-4 should be numbered 15.1-3. 15.1-4 [Section Rules] {Subject to the approvalof the committee of the departmentthat oversees the section, the Medical Executive Committee and the Governing Body, each section may formulate its own Rules for conducting its affairs and discharging its responsibilities. Additionally, hospital administration may develop and recommend proposed section Rules, and in any case should be consulted as to the impact of any proposed section Rules on hospital operations andfeasibility. Such Rules shall not be inconsistent with the Medical Staff or hospital Bylaws, Rules, or policies.] 15.1-5 Medical Staff Policies a. Policies shall be developed as necessary to implement morespecifically the general principles found within these Bylaws and the Medical Staff Rules. New or revised policies (proposed policies) may emanate from any responsible committee, department, medicalstaff officer, or by petition signed by atleast {insert minimum numberorpercent] of the voting membersofthe MedicalStaff. Proposedpolicies shall 104 ~ CHA Model Medical Staff Bylaws 2011 not be inconsistent with the Medical Staff or hospital Bylaws, Rules orotherpolicies, and upon adoption shall have the force andeffect of Medical Staff Bylaws. b. Medical Executive Committee approvalis required, unless the proposed policy is one generatedbypetition ofat least finsert minimum numberorpercent] of the voting membersofthe MedicalStaff. In this latter circumstance, if the Medical Executive Committee fails to approve the proposedpolicy,it shall notify the MedicalStaff. The Medical Executive Committee and the MedicalStaff each hasthe option of invoking or waiving the conflict managementprovisionsofSection 15.1-6. 1. If conflict managementis not invoked within [30] days it shall be deemed waived. In this circumstance, the MedicalStaff's proposed policy shall be submittedfor vote, and if approved by the MedicalStaff pursuant to Section 15.1-5(b)(3), the proposed Rule shall be* forwardedto the Governing Bodyfor action. The Medical Executive Committee may forward commentsto the Governing Body regarding the reasonsit declined to approve the proposedpolicy. 2. If conflict managementis invoked, the proposed policy shall not be voted upon or* forwarded to the Governing Bodyuntil the conflict managementprocess has been completed, and theresults of the conflict managementprocess shall be communicated to the MedicalStaff and the* Governing Body. 3. Approval of the Medical Staff shall require the affirmative vote of a majority of the Medical Staff members voting on the matter by mailed secret ballot, provided at least 14 days’ advance written notice, accompanied by the proposed Rule,has been given andatleast [insert minimum numberor percentof return votes required] votes have been cast.* c. Following approval by the Medical Executive Committee or the voting MedicalStaff as described above*, a proposed Rule shall be forwarded to the Governing Body for approval, which approvalshall not be withheld unreasonably. Thepolicy* shall becomeeffective immediately following approval of the Governing Body or automatically within /60] daysif no action is taken by the Governing Body. d. The Medical Staff shall be notified of the approved policy, and may, by petition signed by at least [insert numberorpercent] of the voting members of the Medical Staff require the policy to be submittedfor possiblerecall; provided, however, the approvedpolicy shall remain effective until such time asit is repealed or amended pursuantto any applicable provision of this Section 15.1-5. 15.1-6 Conflict Management : In the eventof conflict between the Medical Executive Committee and the Medical Staff (as represented by written petition signed by at least [insert numberor percent] of the voting membersof the MedicalStaff) regarding a proposedor adopted Ruleorpolicy, or other issue ofsignificance to the MedicalStaff,* the President of the MedicalStaff shall convene a meeting with the petitioners’ representative(s). The foregoing petition shall include a designation ofup to ffive] members of the voting Medical Staff who shall serve as the petitioners’ representative(s). The Medical Executive Committee shall be represented by an equal numberof Medical Executive Committee members. The Medical Executive Committee’s andthe petitioners’ representative(s) shall exchange information relevant to the conflict and shall work in goodfaith to resolve differences in a mannerthat respects the positions of the MedicalStaff, the leadership responsibilities of the Medical Executive Committee, andthe safety and quality of 105 CHA Medel Medical Staff Bylaws |2011 patient care at the hospital. Resolution atthis level requires a majority vote of the Medical Executive Committee’s representatives at themeeting and a majority vote of the petitioner’s representatives. Unresolved differences shall be submitted to the Governing Bodyforits consideration in makingits final decision with respectto the proposed Rule,policy, or issue.* COMMENT:See comments at Section 15.1-2.* Note changessince publication ofInterim amendments, MS.01.01.01, EP 10 is notlimited to conflicts relating to Rulesor policies, so this revised language was added to accommodatethis broaderpossible use of the conflict managementprocess. 15.2 Forms Application forms and any otherprescribed forms required by these Bylaws for use in connection with MedicalStaff appointments, reappointments,delineation ofprivileges, corrective action, notices, recommendations, reports and other matters shall be approved by the Medical Executive Committee and the Governing Body. Upon adoption, they shall be deemedpart of the Medical Staff Rules. They may be amended by approvalof the Medical Executive Committee and the Governing Body. 15.3 Dues The Medical Executive Committee shall have the powerto establish reasonable annual dues, if any, for each category of Medical Staff membership, and to determine the manner of expenditure of such funds received. However, such expenditures must be appropriate to the purposesofthe MedicalStaff fand shall notjeopardize the nonprofit tax-exemptstatus of the hospital.] COMMENT:Business & Professions Code Section 2282.5 grants the Medical Staff the right to establish dues and to control expenditures.It is important, however,that tax-exempt hospitals’ Medical Staff expenditures are compatible with the hospitals’ tax exempt purposes. 15.4 Medical Screening Exams COMMENT:Hospitals subject to the Emergency Medical Treatment and Active Labor Act (EMTALA) must comply with 42 CFR 489.24(a), and describe in Bylaws or Rules those individuals who may perform medical screening exams. 15.4-1 All patients whopresentto the hospital, including the Emergency Departmentandthe Laborand Delivery Unit, and who request examination and treatmentfor an emergency medical condition oractivelabor, shall be evaluatedfor the existence of an emergency medical condition or, where applicable,active labor. This screening examination may be performedby the following persons: a. In the Emergency Department: by a registered nurse who has been determinedbythe ER Nurse Managerto be qualified and experienced in emergency nursing and whois required to follow standardized procedures approved by the MedicalStaff. b. In the Labor and Delivery Unit: by a registered nurse who has been determined by the Labor and Delivery Nurse Managerto be qualified and experienced in obstetrical nursing and whois requiredto follow standardized procedures approvedby the MedicalStaff. 106 CHA Model Medical Staff Bylaws |2011 - In all circumstances: in the event the registered nurse performingthe screening examination is uncertain about the nature of the patient’s condition or the existence of an emergencyoractive labor, a physician from either the Emergency Department or Labor and Delivery shall be required to examine the patient and make the determination of the existence of an emergencyoractive labor. 15.4-2 Medical screening examinations and emergencyservices shall be provided in compliance with all applicable provisions of state and federal law, and hospital policies and procedures respecting Emergency Medical Services.’ 15.4-3 [Informed Consent] a. [Based upon input from [the departments], [the Medical Staff shall developa list of procedures requiring informed consentof the patients. This list may be adopted, amended or repealed by majority vote of the Medical Executive Committee and approval by the Governing Body, and upon adoption shall have the force andeffect of Medical Staff Bylaws. Thelist shall include, but is notlimited to, informed consent requirements with respectto the following procedures:] 1. Surgery] 2. [Blood transfusions] 3. [Physical restraints] 4. [Antipsychotic medications] 5. [Sterilization] . 6. [Hysterectomy] 7. [Abortion] 8. [Reuse of hemodialysisfilters] Q. [Breast cancertreatment] 10. [Silicon implants and collagen injections] 11. [Psychosurgery] 12. [Convulsive therapy] 13. [Implantationofcells, tissue, or organs] 14. [Assisted reproduction procedures] 15. [Telemedicine] 16. [Such other procedures as may beidentified in the informed consent policy] b. [The informed consentpolicy shall assure that the patient for his/her representative] [receives information necessary to make informed decisions about his/her care including, but not limited to:] 1. [Health status, diagnosis; and progress;] 2. [The nature and purpose of the proposed procedure, anesthesia to be used (if applicable), short and long-term risks and consequences, and the probability that the proposed procedures will be successful] 3. [An explanation of alternative methodsof treatment(if any) and their associated risks and benefits;] 4. [An explanation ofthe risks and prognosis if not treatment is rendered: and] 107 CHA Model MedicalStaff Bylaws 2011 5. [An explanation of who will actually perform the procedure, who will administer the anesthesia (if applicable), and which otherpractitioners will perform importantparts of the surgical procedures.] c. [Informed consents shall be documentedin the medical record.] COMMENT:The above Section wasoriginally added to comply with CMS Conditions of Participation, 42 CFR 482.24(c)(2){v), and the Interpretative Guidelinesfor this standard. The Interpretive Guidelines now acknowledgethat procedures requiring consent maybe setoutin medicalstaff policies.The abovelist of procedures requiring informed consentis based upon CHA’s Consent Manual, chapter4, “Procedures that Require Special Consent,” 15.5 Legal Counsel The MedicalStaff may,at its expense, retain and be represented by independentlegal counsel, , , 15.6 Authority to Act Any member whoacts in the nameofthis Medical Staff without properauthority shall be subject to such disciplinary action as the Medical Executive Committee may deem appropriate. 15.7 Disputes with the Governing Body In the event of a dispute between the Medical Staff and the Governing Body relating to the independentrights of the Medical Staff, as further described in California Business & Professions Code Section 2282.5, the following procedures shall apply. a. Invoking the Dispute Resolution Process 1. The Medical Executive Committee may invoke formaldisputeresolution, uponits owninitiative, or upon written request of 25 percent of the membersoftheactive staff. 2. In the event the Medical Executive Committee declines to invoke formal dispute resolution,suchprocess shall be invoked upon written petition of 50 percentof the membersof theactive staff. b. Dispute Resolution Forum 1. Ordinarily, the initial forum for dispute resolution shall be the Joint Conference Committee, which shall meet and conferas further described in Bylaws, Section 9.2(b). 2. However, upon requestofat least 2/3 of the members of the Medical Executive Comunittee, the meet and confer will be conducted by a meetingof thefull Medical Executive Committee and thefull Governing Body. A neutral mediator acceptable to both the Governing Body and the Medical Executive Committee may be engagedtofurther assist in dispute resolution upon requestof: i. At least a majority of the Medical Executive Committee plus two membersof the Governing Body; or ii. At least a majority of the Governing Body plus two membersofthe Medical Executive Committee. c. The parties’ representatives shall conveneasearly as possible, shall gather and share relevant information, and shall work in goodfaith to manageand,if possible, resolve the conflict. If the parties are unableto resolve the dispute the Governing Bodyshall 108 CHA Model Medical Staff Bylaws 2011 makeits final determination giving great weight to the actions and recommendations of the Medical Executive Committee. Further, the Governing Body determination shall notbe arbitrary or capricious, and shall be in keeping with its legal responsibili- ties to act to protect the quality of medical care provided and the competencyofthe MedicalStaff, and to ensure the responsible governanceofthe hospital. COMMENT: Tailored to accommodate TJC Standards LD.01.03.01, EP 7 and LD.02.04.01, EP 4. 15.8 No Retaliation Neither the MedicalStaff, its members, committees or departmentheads,the Governing Body,its chief administrative officer, or any other employee or agentof the hospital or MedicalStaff, shall discriminate or retaliate, in any manner, against any patient, hospital employee, memberofthe MedicalStaff, or any other health care workerofthe health facility because that personhas doneeitherof the following: a. Presented a grievance, complaint, or reportto the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the Medical Staff of the facility, or to any other governmentalentity. b. Hasinitiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality ofcare,services, or conditionsatthefacility thatis carried out by an entity or agency responsible for accrediting or evaluating the facility or its MedicalStaff, or governmentalentity. COMMENT:Addedto help assure compliance with California law (AB 632, 2007). 109 CHA Model Medical Staff Bylaws 2011 Article 16 Adoptionand Amendment of Bylaws 16.1 Medical Staff Responsibility and Authority 16.1-1 The Medical Staff shall have the initial responsibility and delegated authority to formulate, adopt and recommend Medical Staff Bylaws and amendments which shall be effectivewhen approved by the Governing Body, which approval shall not be unreasonably withheld. Such responsibility and authority shall be exercised in good faith and in a reasonable, timely and responsible manner,reflecting the interests of providing patient care of the generally recognized level of quality and efficiency, and maintaining a harmonyofpurpose andeffort with the Governing Body. Additionally, hospital administration may develop and recommendproposed Bylaws, and in any case should be consultedas to the impact of any proposed Bylawson hospital operations andfeasibility. 16.1-2 Proposed amendmentsshall be submitted to the Governing Body for comments at least 30 days before they are distributed to the Medical Staff for a vote. The Governing Bodyhasthe right to have its comments regarding the proposed amendments circulated with the proposed amendmentsat the time they are distributed to the MedicalStaff for a vote. 16.1-3 Amendments to these Bylaws shall be submitted for vote upon the request of the Medical Executive Committee or uponreceipt of a petition signed byat leastfinsert minimum numberorpercent] of the voting Medical Staff members. Amendments submitted upon petition of the voting Medical Staff membersshall be provided tothe Medical Executive Committeeat least 30 days before they are submitted to the Governing Body for review and commentas described in Section 16.1-3. The Medical Executive Committee has the right to have its comments regarding the proposed amendments circulated to the Governing Body whenthe proposed amendmentsare submitted to the Governing Body for comments; and to have its commentscirculated to the Medical Staff with the proposed amendments at the time they are distributed to the Medical Staff for a vote. COMMENT:Business & Professions Code Section 2282.5 establishes the Medical Staffs right to adopt Bylaws, and sets out a standard for Governing Body approval(approvalshail not be unreasonably withheld), this provision affords an opportunity for the Medical Staff to have prior notice of any problematic provisions at a point whereit may be possible to invoke a meet and confer session (pursuantto Bylaws, Section 9.2-2(b)) to discuss issues of disagreement. Each Medical Staff should evaluate and establish an appropriate threshold for processing amendments proposedbypetition of the Medical Staff. See comments accompanying Section 15.1-2. 16.2 Methodology 16.2-1 Medical Staff Bylaws may be adopted, amendedor repealed by the following combinedactions: ' 110 ‘CHA Model Medical Staff Bylaws 2011 a. The affirmative vote of a majority of the Medical Staff members voting on the matter by mailed secret ballot, provided at least 14 days advance written notice, accompaniedby the proposed Bylaws and/or alterations, has been given; and b. The approvalof the Governing Body, which shall not be unreasonably withheld.If approval is withheld, the reasonsfor doing so shall be specified by the Governing Bodyin writing, and shall be forwardedto the Chiefof Staff, the Medical Executive Committee and the Bylaws Committee. 16.2-2 In recognition of the ultimatelegal and fiduciary responsibility of the Governing Body, the organized Medical Staff acknowledges, in the event the Medical Staff has unreasonablyfailed to exercise its responsibility and after notice from the Governing Body to sucheffect, including a reasonable period of time for response,the Governing Body may impose conditions on the MedicalStaff that are required for continued state licensure, approval byaccrediting bodies, or to comply with law or a court order. In such event, Medical Staff recommendations and viewsshall be carefully considered by the Governing Bodyinits actions. COMMENT:Hospital legal counsel should be consulted before any decision to exercise the residual authority described here.The Joint Commission standards preclude unilateral amendmentof the Bylaws. Nonetheless, Business & Professions Code Section 2282.5 increases the necessity for including this provision. The enactinglegislation (SB 1325 [2004]) noted: “The Governing Body mustact to protect the quality of medical care provided and the competencyofits MedicalStaff and to ensure the responsible governanceof the hospital in the eventthat the Medical Staff fails in any of its substantive duties or responsibilities.” 16.3 Technical and Editorial Corrections The Medical Executive Committee shall have the power to approve technical corrections, suchas reorganization or renumbering of the Bylaws,or to correct punctuation,spelling or other errors of grammarexpression or inaccurate cross-references. No substantive amendments are permitted pursuant to this Section. Corrections may beeffected by motion and acted upon in the same manneras any other motion before the Medical Executive Committee. After approval, such corrections shall be communicated in writing to the Medical Staff and to the Governing Body. Such correctionsare effective upon adoption by the Medical Executive Committee; provided however, they may be rescinded byvote ofthe Medical Staff or the Governing Body within 120 days of the date of adoption by the Medical Executive Committee. (For purposesof this Section, “vote of the Medical Staff” shall mean a majority of the votes cast, provided at least 25 percent of the voting membersof the Medical Staff cast ballots.) COMMENT:As noted above, TJC doesnot allow the MEC to amend the Bylaws. Accordingly, the above provision has been scaled backto permit only nonsubstantive corrections. TJC MS.01.01.01 Task Force discussedatlength concerns expressed by somethat somehospitals might abuse such a provision byinterpreting as nonsubstantive, changesthat some would view as substantive. As narrowed, the aboveprovision protects against that possibility. Nonetheless, hospitals may wish to consult with their own legal counsel and/or TJC. 111 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeof service, I was over 18 years of age and not a partyto this action. I am employed in the County of Los Angeles, State of California. My business addressis 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On February 24, 2012, I served true copies of the following document(s) described as MOTION FOR JUDICIAL NOTICE; DECLARATION OF ANNAM. SUDA; PROPOSED ORDERonthe interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare underpenalty of perjury underthe lawsof the State of California that the foregoingis true and correct. Executed on February 24, 2012, at Encino, California. SAL=Mix Cc Robin Steiner SERVICE LIST El-Attar v HPMC Case Nos. BS105623/B209056 Kurt L. Schmalz, Esq. Attorneys for Appellant, LURIE, ZEPEDA, SCHMALZ & HOGAN Osamah E]-Attar, M.D. A Professional Corporation 9107 Wilshire Boulevard, Suite 800 BeverlyHills, California 90210-5533 Tel: (8310) 274-8700 Jay D. Christensen, Esq. Attorneys for Defendant and Respondent, Anna M.Suda, Esq. Hollywood Presbyterian Medical Center Christensen & Auer 225 S. Lake Avenue, Suite 860 Pasadena, California 91101 Tel: 626 568-2900 Astrid G. Meghrigian, Esq. Attorney for Amicus Curiae for Appellant, California Medical Association California Medical Association 1201 J. Street, Suite 200 Sacramento, California 95814 Tel: 415 9381-6029 California Court of Appeal B209056 Second District/Division 4 300 South Spring Street Second Floor, North Tower Los Angeles, California 90013-1213 Tel: 213 830-7000 Los Angeles Superior Court BS105623 Hon. Mary Ann Murphy Department 25 111 North Hill Street Los Angeles, California 90012 Tel: 213 974-5627
