Hospital Privileges Manual: Part III: Hospital Bylaws and Legal Issues in Hospital Privileging
Hospital bylaws are written documents that govern each individual hospital. Hospital bylaws state policies and governance procedures, identify staff levels of appointment, describe the credentialing and privileging process, and provide the rules and regulations for the hospital. Bylaws can vary considerably from one hospital to another and must be evaluated closely prior to applying for hospital privileges. Always obtain a copy of the hospital’s bylaws and analyze the following key areas: Definitions, staff appointment categories, the credentialing and privileging process, the bylaws amendment process, and the fair hearing process, if denied privileges.
The bylaws will categorize and specifically define the staff into levels such as active, honorary, consulting, affiliate, allied, associate, etc. These definitions can be very different from one hospital to another. An optometrist must be included in a specific category in order to have privileges granted. This may be accomplished by specifically identifying optometrists as providers who may fit in a particular category or may simply be defined by a broad statement (e.g., health care provider, health care professional, practitioner, other licensed professional, etc.). Such terms may also be defined in the bylaws and need careful study and possibly modification.
Optometrists are not commonly identified in bylaws as a provider group who may hold hospital privileges. This invariably requires the optometrist and the sponsor to amend the bylaws. Many of the optometrists who currently have staff privileges have amended their hospital bylaws in order to apply for privileges. Do not be discouraged; it is just one more step that must be resolved in the process. This has been done successfully on numerous occasions across the nation. Many bylaws were written in times when only medical physicians were requesting staff privileges and only medical physicians had scope of practice licensure appropriate for examining patients in hospitals. The bylaws will describe the process for bylaws amendment, so you will know the necessary process.
Once the bylaws are in proper form to allow you a staff level of appointment, you are ready to consider making application. The bylaws will guide you in knowing the committees that will review and act upon your application and what recourse you might have, should your application be denied. Specific wording in bylaws may vary, so each set of bylaws must be read critically and carefully. An attorney well versed in health care law should be consulted if a question arises.
LEGAL ISSUES IN HOSPITAL PRIVILEGING
Hospitals are increasingly looking to secure market share by consolidating, such as, buying other hospitals, clinics, and physician practices. This move into the ambulatory care setting has made hospitals more receptive to optometrists becoming affiliated with them. There are, however, barriers that can exist and an application for hospital staff privileges does not always meet with success.
The legal issues surrounding hospital privileges are complex. The following provides a brief summary of issues and points to consider prior to proceeding with any action relating to obtaining hospital privileges. It does not constitute legal advice. Individuals should seek legal counsel from an attorney experienced in hospital law.
- State Law
Hospitals are governed by state law. There are states that specifically identify, within statutory law, who is eligible to hold medical staff positions within a hospital. In other cases, it is likely that optometrists are not named either as eligible or ineligible. This ambiguity can lead to problems. In many cases, the statute grants to the individual hospitals the right to determine the types of providers who may obtain privileges. For optometrists interested in pursuing privileges, state optometric association hospital committees or legal counsel can be helpful in finding and reviewing pertinent statutory law.
- Hospital Bylaws
Hospital bylaws internally govern each hospital; they state policies, governance procedures, the types of medical staff positions, the types of health care providers who may hold those positions, and the mechanisms for applying for hospital staff membership. Since bylaws can vary considerably from one hospital to another, the optometrist, when seeking hospital affiliation, must closely evaluate each individual facility’s bylaws.
Active medical staff is the level of staff most intimately involved with hospital practice. In addition to actively seeing patients, active medical staff members are eligible to vote, admit patients, hold office, and serve on hospital committees. Many times optometrists will not be eligible for active medical staff under the definitions used in the bylaws. Generally, optometrists will not be named as individuals who can hold staff privileges in any category. Invariably this requires amending the bylaws to include optometrists as individuals who, by definition, may be staff members. Optometry may be defined as a named provider group, physician, practitioner, or by some other definition of provider. Depending on this definition and the bylaws category definition, a category of appointment can be determined. Active medical staff level of appointment may be possible, but another category such as independent allied health, consulting, or affiliate staff may be more likely.
REASONS FOR DENIAL
- Needs of the Hospital
Probably the most common reason for denial is that the hospital already has an adequate number of providers to cover the necessary services.
- Economic Credentialing
Traditionally, the awarding of hospital privileges has been made by the medical staff based solely on the professional credentials of the applicant. Recently, the concept of economic credentialing has also entered into the decision making process. The basic premise of economic credentialing is that economic factors may also be used in determining who is eligible for hospital staff positions. Health care providers may be excluded from a medical staff based solely on economic considerations (e.g., resource utilization and outcomes data, admission casemix, generating potential, malpractice claims).
POINTS TO CONSIDER
- Are optometrists named in the bylaws as individuals who can hold hospital privileges and included as “other nonphysician providers” or are they specifically excluded? Optometrists are almost always not named and, therefore, bylaws must be changed.
- What is the procedure for changing bylaws? This may be a very slow and tedious process. Consult the bylaws of your hospital for the procedure to change or amend existing bylaws. Consulting other hospital bylaws that allow optometrists on staff may be very beneficial.
- What are the staff categories? Where does the optometrist fit? You must know what the categories are and into which category you will fit before applying for hospital privileges.
- Who will review requests for clinical privileges? What is the procedure for fair hearing if privileges approved are not adequate? It is important that this process be fair and that the hearing committee understand optometry’s expanded role in providing eye care services.
- Are there state laws that allow you the right to judicial review if denied hospital privileges? In most cases, the answer to this question will be no.
- Are there specific state laws which prohibit or do not specifically allow optometrists to obtain hospital privileges? State statutes must be searched to answer this question. If the answer is yes, these laws should be changed.
- Did the hospital follow its bylaws in reviewing your application for staff? Hospital bylaws outline the process for applying for privileges and they must be followed.
- Can I sue based on antitrust? Perhaps. The chances of winning are extremely small. These cases can be time-exhaustive and extremely expensive. Optometrists should carefully consider whether this option is desirable before proceeding with litigation. Consulting a lawyer experienced in antitrust law and hospital privileges is mandatory.