By STEVE BARHAM and CATHY DORVIL
For physicians, the peer review process has been created to address professional issues that arise and range from behavioral to medical decision-making. The process has developed over time and varies from employer to employer. However, it should have elements of fairness that allow the physician to present his or her side of the event(s) in question. The results of the process will often impact the physician’s status with the employer and reputation in the community.
The peer review process can create hard to change baseline problems for the unaware physician. Often a physician enters the peer review process confident that he or she will be exonerated or at least that the issues under review will not lead to adverse consequences. The bylaws and rules that apply to the peer review process will almost always state that, initially, no attorneys are permitted, leading physicians to conclude there is no reason to consult with an attorney. Unfortunately for the physician, this is often the wrong conclusion, and delaying counsel’s involvement can complicate the issues and make advocacy more difficult later.
While legal counsel may be prohibited from attending the actual meetings, planning your defense and understanding the potential issues ahead with counsel can make a tremendous difference in the ultimate result. (The attorney) can assist physician clients in confirming the peer review process is run fairly and in accordance with the applicable procedures and laws that may apply. Further, if the process is exceedingly one-sided, the physician may need to take proactive steps to preserve his or her objections to the process in order to avoid waiving them.
Connecting with physician clients early in the process allows us to:
Identify and organize the strongest arguments in our client’s favor so that there are favorable conclusions or minimal adverse actions when some unfavorable action is inevitable;
Guide our clients by practicing their defense; and
Refine key points to properly position the client for further licensing or credentialing issues that may arise following the completed peer review.
Our experience demonstrates that a properly focused and prepared presentation at the outset is the physician’s best defense to avoid adverse findings.
Occasionally, the peer review process will lead to discussions in which the physician is asked to agree to a resolution. Before agreeing to any findings or consequences, the physician must understand the impact the agreement may have on his or her license, whether it will cause database reporting, and whether it will impact the physician’s continued access to private insurance payers. Even though the proposed resolution ends the peer review process, it may only be the beginning of larger issues. Instead of providing finality, it may set the facts in stone and make it difficult for the physician to fight subsequent actions by the state licensing board or by private insurance companies that reevaluate credentials.
The peer review process often starts with an effort to minimize legal involvement, but don’t be fooled. Adverse results often have significant consequences that are difficult to fight after decisions have been made. Being proactive and working with counsel from the beginning of the peer review process maximizes a physician’s chance for a positive result or a lesser negative consequence. It is important not to delay seeking legal assistance.
Focusing on complex business litigation, Steve Barham represents health care groups and medical revenue cycle management companies across the U.S. on a range of disputes. Physician and medical groups turn to Steve for counsel on Medicare audit appeals, private insurance appeals, billing, and provider agreement disputes with private insurance companies or with state licensing boards.
Cathy Dorvil is a fearless litigator for health care and commercial clients across the U.S. Her previous careers in occupational therapy and health program management have given her a perspective that many health care litigators do not have. She can speak the language of her clients including medical providers, billing companies, Medicaid managed care organizations, insurance companies, and home health and community-based care organizations like mental health facilities, nursing homes, and hospices. Health care clients turn to Cathy for counsel on disputes related to fraud and abuse, Medicaid and Medicare enrollment and payment, vendor and billing contracts, credentialing, payment, personnel, and insurance.
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