Tip of the week: Engage legal counsel in economic credentialing policy development

It should be evident from the myriad 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 up front:
 

• What state regulatory barriers to economic credentialing may exist
• Whether and to what extent the policy must be consistent with the requirements of the hospital’s 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

As an adjunct to the legal analysis, the hospital should also obtain an economic analysis regarding the nature and degree of the hospital’s market power. Market power is a significant factor in determining the scope of permissible action from an antitrust perspective, and it will be an important element to evaluate if the hospital takes action that may be regarded as anticompetitive. Once the initial legal analysis is complete, legal counsel can work with the subcommittee to develop and shape a policy that will be legally defensible and to anticipate and address potential legal hurdles.

This week’s tip is from The Medical Staff Leaders’ Practical Guide, Sixth Edition, by William K. Cors, MD, MMM, FACPE, CMSL; Mary J. Hoppa, MD, MBA, CMSL; and Richard A. Sheff, MD, CMSL.