Engage legal counsel in economic credentialing policy
For legal and financial reasons, economic credentialing is a concern of the governing board, not of the medical staff. Antitrust laws preclude physicians from deciding whether to admit or deny membership to their physician competitors based on economic factors. The financial “big picture” is ultimately within the realm of concern of a hospital’s executive team and its board, as opposed to its medical staff. This is not to say, however, that economic credentialing policies are not of concern to the medical staff, particularly where they intersect with quality and service concerns. Therefore, although the board must carry out the final adoption and implementation of an economic credentialing policy, the medical staff plays an important role in shaping and developing the program. Medical staff leaders should understand a six-step process that a board might follow in approaching this subject.
One of these steps is engaging legal counsel. It should be evident from the complex legal issues surrounding economic credentialing policies that securing knowledgeable legal counsel is a must. Once the board has formulated the issues and set its goals, it will benefit from a comprehensive analysis of federal, state, and common legal principles that will shape the development of the policy. The board will need to know upfront:
- What state regulatory barriers to economic credentialing may exist
- Whether and to what extent the policy must be consistent with the requirements of the medical staff bylaws
- What the fraud and abuse and tax implications are of any specific initiatives under review
- What relevant antitrust principles must be taken into account in the development and design of the policy
- Whether any constitutional issues must be addressed
- What common law claims could be asserted by physicians who might be adversely affected by the policy
Once the initial legal analysis is complete, legal counsel can help develop and shape a policy that will be legally defensible and to anticipate and address potential legal hurdles.