This transcript has been auto generated
00;00;01;02 - 00;00;24;14
Nick Healey
Hello and welcome to Beyond the Bylaws: The Medical Staff Show. This is Husch Blackwell LLP's podcast covering the legal and regulatory aspects of hospital medical staffs. We're focusing on the important but sometimes confusing world of medical staff legal issues. I'm Nick Healey, a health care regulatory partner at Husch Blackwell. And I am in my third decade of working with hospital medical staff.
00;00;25;01 - 00;00;45;01
Nick Healey
Before we dive in, I'd like to note that nothing in this podcast constitutes legal advice, and the views expressed in this podcast are mine or those of our special guests and not those of Husch Blackwell. Thanks for joining us for this episode in which we dove into the medical staff byelaws and their role in the governance of the medical staff.
00;00;45;12 - 00;01;11;24
Nick Healey
Just a program note normally we try to keep these episodes about 30 minutes or so to avoid too many tangents. But this topic is so foundational and so interesting that we ended up with so much material that we had actually two episodes worth. So we decided to split this into a two part episode. The first part of the episode, we are going to deal with high level issues and governance concepts and how those are captured in the bylaws.
00;01;11;24 - 00;01;31;27
Nick Healey
And then in the next part of the episode, we are going to get into more specific provisions that you'll find in the letter for staff bylaws and tips and tricks about how to deal with those in the bylaws themselves with respect to language and what might come up. So we really hope you enjoy the first part of this episode and tune in soon for our two.
00;01;32;29 - 00;02;01;08
Nick Healey
I'm really happy today to have two guests, two very special guest stars. Ellee Cochran, a healthcare regulatory partner in Husch Blackwell's Austin office who has a very active medical staff practice and Melanie Durfee, a the director of medical staff services for a an acute care hospital in Idaho. I'm going to let them introduce themselves, but I am really excited to have them here with me today.
00;02;01;09 - 00;02;33;11
Nick Healey
They have a tremendous amount of great experience in the medical staff world. I'm sure this is going to be a really interesting episode on bylaws. So we are called Beyond the Bylaws as the title of the podcast, but we are going to go back to the bylaws today. We are going to talk about the bylaws, their place in the medical staff world, the function, the typical things that you should be seeing in the bylaws and tips, tricks, things that can crop up when bylaws are poorly written and what you can expect when they're well written.
00;02;33;11 - 00;02;40;15
Nick Healey
So I'm going to let Ellee first introduce herself. Ellee Cochran. Take it away for a short introduction.
00;02;40;28 - 00;03;03;14
Ellee Cochran
Thanks for having me on. Yes. As Nick said, I am one of his law partners in the Austin, Texas, office of Husch Blackwell. And a good portion of my law practice is dedicated to medical staff matters. I really love it because it's I get to kind of act as like consular counselor. It sometimes it feels a little bit like high school drama.
00;03;03;24 - 00;03;44;03
Ellee Cochran
And I like it, but I feel like I'm helping the function of the hospital, which I really enjoy. I the big part of it is navigating complex personalities is what I would call it, particularly, you know, one that can sometimes be physicians and then also the medical staff side and then also the administration. And a lot of times it involves a multifaceted thing where I'm navigating the physicians, the difficult physician issue, the medical staff leadership itself, and then also the administration and all all of those and sometimes difficult opposing counsel.
00;03;44;16 - 00;04;00;07
Ellee Cochran
So that's what a lot of mine looks like. But I also have done a lot of big bylaws, projects for multi hospital systems and that are like trying to unify bylaws that are all across the country. And so that's really relevant to today's podcast, I think.
00;04;00;16 - 00;04;34;01
Nick Healey
Yeah, it absolutely is. And I like a lot of the things you just said. Navigating the complex personalities is a really interesting challenge in medical staff work, and I like that you identified that there are numerous stakeholders in the medical staff processes, there's administration, there's medical staff leadership. You know, in certain circumstances there can be physicians who are undergoing peer review proceedings that are stakeholders, and they have legal counsel themselves that, you know, are going to challenge processes, challenge the way things are done.
00;04;34;01 - 00;04;45;17
Nick Healey
And and I really like that you brought that up because medical staff bylaws and especially well written medical staff bylaws can really smooth those processes. They can really smooth the relationships between the stakeholders and.
00;04;45;17 - 00;04;56;12
Ellee Cochran
Certainly the other big stakeholders that will. It's nice to have Melanie here is the medical staff services coordinator. But I guess people in that whole realm.
00;04;56;21 - 00;05;14;17
Nick Healey
Yeah, yeah, I think that's absolutely right. I mean, the medical staff coordinator, the medical staff director of medical staff services are really keeping the ship afloat, the medical staff ship afloat, the S.S. medical staff. And and with that Segway, I'm going to let Melanie Durfee introduce herself.
00;05;14;17 - 00;05;35;03
Melanie Durfee
Thank you for having me. I am excited to be here with you today. I'm Melanie Durfee. I'm the director of medical staff services at a hospital in Idaho. I've been in my position for 12 years now, and prior to that, I worked as a paralegal in a law office, which that knowledge and experience has lent itself very well to this position that I'm in currently.
00;05;35;03 - 00;05;46;09
Melanie Durfee
And I would agree the Medical Staff Services Department is it plays a huge part as liaison between physicians, the medical staff leaders, administration, and I love what I do, so.
00;05;46;12 - 00;05;51;18
Nick Healey
You've also had leadership positions with the Idaho Association of Medical Staff Services, right?
00;05;52;01 - 00;06;07;20
Melanie Durfee
I have. I've served in several leadership positions with that organization. I've been the president. I'm currently the Treasurer. I've been the Treasurer multiple times. I'm usually pretty involved with planning conferences and suffrage associations.
00;06;08;07 - 00;06;38;17
Nick Healey
Awesome. And so let's dive into our actual topic for today, which is the bylaws, medical staff bylaws. So medical staff bylaws, they are required. Medical staffs have to have them by if they're acute care hospitals under the conditions of participation, both DMV and Joint Commission require bylaws. The if you're a critical access hospital, the cops don't actually require you to have bylaws, but a lot of state laws do as well.
00;06;38;17 - 00;06;49;07
Nick Healey
And so they're very, very commonplace throughout the hospital world. But and I know that, Melanie, you are in an acute care hospital. Have you worked at any other types of hospitals? Critical access?
00;06;50;03 - 00;06;50;12
Melanie Durfee
No.
00;06;51;07 - 00;07;04;17
Nick Healey
Okay. And every critical access hospital I worked with and I worked with, a lot of them do have medical staff bylaws as well, notwithstanding that they may not be required to have you ever work with a critical access hospital that doesn't have bylaws, medical staff, bylaws?
00;07;04;18 - 00;07;09;04
Melanie Durfee
I have not. And even, you know, the all tax service, everybody has them.
00;07;09;13 - 00;07;12;08
Nick Healey
Yeah. I'll take long term acute care.
00;07;12;18 - 00;07;34;08
Ellee Cochran
Mm hmm. Long term acute care, hospital and inpatient rehab facilities, the hospitals as well. Okay. Yeah, I think it's really just the standard, particularly because everybody is accredited by some one joint commission DMV, like you mentioned, and CIA HQ as well. Yeah, all have same ones.
00;07;34;27 - 00;07;57;19
Nick Healey
Most hospitals are not all hospitals, especially in really rural states like Wyoming, Colorado, Montana, Idaho. Some just go with Medicare participation and state licensure or just go with state licensure. So but with respect to the bylaws themselves, I don't know if you guys have ever drafted them from scratch. Have either of you worked on drafting bylaws from scratch?
00;07;58;08 - 00;07;58;21
Melanie Durfee
No.
00;07;59;08 - 00;08;27;16
Nick Healey
Look, I've done it once and I mean, there have been lots of times where I have provided a template set of bylaws that, you know, they work from to replace old bylaws. But there are very few hospitals that start from new these days that open without having, you know, some predecessor that they start with bylaws. And so I think it's pretty rare to actually start with, you know, nothing and have to come up with bylaws and, you know, determine what they should be.
00;08;27;25 - 00;08;51;11
Melanie Durfee
Well, actually, I say that, but I have done that opening new hospitals. But when you say start from scratch, like I haven't personally drafted the provisions, but what I have done is done new bylaws from scratch where I took about, I don't know, 15 different model ones and said, let's look at all of these. Look at the provision.
00;08;51;11 - 00;09;08;08
Melanie Durfee
We know we need these elements and let's see how we can build the best set of bylaws possible. But it was taking pieces from lots of different ones and putting them together based on and it was really painstaking, you know, incredibly.
00;09;08;22 - 00;09;34;18
Nick Healey
Yeah. And that's I mean, pretty similar to my experience with going through bylaws changes because it is painstaking, they are very detailed documents and you, you're really starting from nothing, right? You're not very few opportunities to like come up with a brand new way to to create medical staff bylaws because the contents of them are often dictated by the conditions of participation.
00;09;34;18 - 00;10;06;16
Nick Healey
There's certain things you have to have in there, especially the joint commission is really detailed about what needs to be in the medical staff bylaws. And as a foundational document. I do want to just draw a note that the Joint Commission requires that they contain essentially the the primary or foundational steps of processes and general descriptions of the duties and obligations of the medical staff, whereas the associated details can live in rules and regulations and policies.
00;10;06;16 - 00;10;30;20
Nick Healey
And so notwithstanding that, you know, the bylaws are a critical part, we shouldn't lose sight of the fact that there can be associated documents like rules and regulations and policies. And so but Melanie, I'm curious in in your experience, how do you navigate what goes in the bylaws versus what goes in, you know, rules, regulations and policies? How do you make that decision or how does your medical staff make that decision?
00;10;31;20 - 00;10;56;17
Melanie Durfee
That's a good question and a question that I've had to answer many times, like teaching newly new physician leaders, for example. What but that hierarchy of documents looks like. I usually try to explain it to them as the bylaws are kind of overarching high level. Then you get into more detail and more specifics when you get to like the rules and regs, and then even more specific, when you get down to the policy level.
00;10;57;25 - 00;11;08;29
Melanie Durfee
So we really have to just think about what the intent of what we're trying to add or changes and determine which of those documents it would be best place to live.
00;11;08;29 - 00;11;27;20
Nick Healey
So when you sit down with the bylaws, you know, draft and project, do you sit down with, and I'm assuming at your hospital you have all three, bylaws, rules, regulations and policies. Do you sit down with all three, decide what you want to say and decide what parts of it go into which documents, bylaws, rules, regulations and policies?
00;11;27;20 - 00;11;35;13
Nick Healey
Or do you just start with the bylaws? And then to the extent there's anything to add, you add in and the rules and regulations and then potentially the policies.
00;11;35;21 - 00;11;53;06
Melanie Durfee
Yes. When we're reviewing for changes, we are typically looking at all three documents that might have any relevant content to what we need to change or add, and then making that determination based on what's already there, what needs to be changed and where it's where it sits currently.
00;11;53;15 - 00;12;02;08
Nick Healey
Yeah. So the other big question, I mean, if you're going through a bylaws drafting exercise from a medical staff perspective, how does that generally start Melanie?
00;12;02;09 - 00;12;22;23
Melanie Durfee
We actually just a few years ago, we completely revamped our bylaws. So we did a really big bylaws project. The determination was made that the bylaws were out of date. We needed to just almost start from scratch. I mean, we had a lot of model, a lot of model after real specific stuff out of the old bylaws, but also kind of started fresh.
00;12;23;14 - 00;12;46;10
Melanie Durfee
But we had a we have a subcommittee that is several physician leaders from different areas and different service lines that sat on a subcommittee. And they they meet as frequently as needed to go over changes and make recommendations and put together the draft of what what we're working towards.
00;12;46;10 - 00;12;49;18
Nick Healey
How long did the process take to go from start to finish? Just curious.
00;12;49;22 - 00;12;52;17
Melanie Durfee
When we did the big revamp, it took us about a year.
00;12;53;02 - 00;13;01;25
Nick Healey
Yeah, that that is a pretty typical amount of time. Ellee, what's your experience on for soup to Nuts? Bylaws, revamps. How long will they take?
00;13;02;06 - 00;13;28;18
Ellee Cochran
Yeah, a year now. I've done them for hospitals that are just opening in less time, but that's before they even had a medical staff and they were, you know, it wasn't with as many stakeholders, it can be a lot faster if you don't already have a medical staff. Yeah. And for very small like inpatient rehab facilities, but for a acute care hospital with a existing medical staff and all of that, definitely a year.
00;13;28;18 - 00;13;29;06
Ellee Cochran
I agree.
00;13;29;13 - 00;13;51;29
Nick Healey
It's a new thing. Yeah. It's interesting you say that, that before there is stakeholders, the process of drafting the bylaws is easier because there hasn't been as many issues that people, you know, have experience with this needs to be addressed in the bylaws because this happened two years ago, right. Or three years ago, where we want to make sure this doesn't happen again.
00;13;51;29 - 00;14;06;06
Nick Healey
In my experience, that does slow down the process. And I'm not always sure that addressing individual situations that have come up in the past leads to a better set of bylaws. And I know you have some experience with that and some thoughts on that. Tell me about that.
00;14;06;14 - 00;14;28;16
Ellee Cochran
Yeah, I do. I think you and I have talked about this in the past, actually, in our day to day practice where there can be a knee jerk reaction when a bad situation happens, that is super rare. You know, as Melanie said, bylaws are this overarching kind of directions on how to operate. And they like all laws, right?
00;14;28;16 - 00;14;48;22
Ellee Cochran
Just like a laws, regulations. They don't account for every single detail nuance situation that comes up, which is why you have to draft them so carefully so they can give you some wiggle room and be pretty broad. But sometimes they just don't. And there can be a knee jerk reaction when like stuff like that happens and we don't know what to do.
00;14;48;22 - 00;15;07;05
Ellee Cochran
And the bylaws don't say and we feel frustrated and stock or there is no direction. So they get through the bad thing that's happening with the difficult position and they say, we've got to revise these bylaws right now because we can't ever have this happen again when it's like a once in a lifetime kind of thing and very specific.
00;15;07;18 - 00;15;34;06
Ellee Cochran
And yeah, I just I try to discourage my clients from doing that because you don't want to. It ends up if you do that over and over and over, you start getting yourself in these little boxes and start being prescriptive when you don't need to be right. I think it's better to be broader and build in some wiggle room and things rather than bill specific language that deals with these tiny little issues that probably will never happen again.
00;15;34;24 - 00;15;54;12
Nick Healey
Yeah, I saw Melanie smiling as we were doing this. I'm sure you have some experience with circumstances coming up that lead people to make or want to make kneejerk reaction, major changes to bylaws that, you know, probably are never going to come up again. Do you have any specific stories about that that you are willing to share?
00;15;54;19 - 00;16;15;21
Melanie Durfee
It's happened multiple times. I can't think of anything specific off the top of my head, but that is fairly common. Yeah, I'm situation comes up. Somebody in my office. We need to change the bylaws. We need to add this. We need to do this. So when I have to try to dial that back a little bit. Well, we probably don't need to change the bylaws, maybe just how we react to a situation.
00;16;16;02 - 00;16;46;10
Nick Healey
Good facts make bad law, but that's definitely how things can work in the bylaws arena. If you're trying to address very, very specific situations, you can have a lot of unintended consequences. But that actually is a good segue way because as we talked about before, there are various levels of medical staff, bylaws, rules and regulations and policies. And one of the reasons that it's not a great idea to make very specific or prescriptive bylaws is because they're hard to change.
00;16;46;18 - 00;17;15;19
Nick Healey
And it's a different situation comes up. You know, you may end up needing to change it again. And you the process is usually that you have to get the entire medical staff as well as the governing body on board to change those bylaws. So one other option may be to if the medical staff really want to address a specific situation, they may choose to do it in a policy which is generally the easiest to change can be ordinarily changed just by the medical executive committee.
00;17;15;19 - 00;17;42;07
Nick Healey
In a lot of cases, it doesn't even need the governing body's approval. So that may be another another way to tackle those situations. If, as notwithstanding how persuasive Ellee is, can't convince a medical staff to simply say, okay, this was a bad situation. We will from a practical perspective or an operational perspective, try to avoid the circumstance arising again, you know, and deal with the bylaws that we've got.
00;17;42;14 - 00;18;10;22
Nick Healey
So, you know, just some other opportunities, too, to avoid making very prescriptive bylaws, changes. So given that the governance so in the COPs the governing body is required to approve any changes to the bylaws. I'm curious the COP, the conditions of participation, and I believe the most state laws require governing body approval of medical staff bylaws, but aren't specific about requiring the medical staff to approve them.
00;18;10;25 - 00;18;25;04
Nick Healey
And so in either of your experiences, I'm curious if you've ever dealt with governing bodies that have imposed medical staff bylaws without the approval of the medical staff? Or is the medical staff always required to approve them in the hospitals you've worked with?
00;18;25;16 - 00;18;46;19
Ellee Cochran
I'll go first just because I have the in the instances where I talked about it earlier, where there wasn't a medical staff yet. Yeah, those are the ones where I've done it. But everything else now we they build it in where the process is that the medical or the bylaws committee, if there is one, if it's a big enough hospital, maybe it's the MEC.
00;18;46;19 - 00;19;05;01
Ellee Cochran
If it's not big enough, will review approve changes and the entire medical staff has to approve the change. I think that's pretty standard because you know, the medical staff wants to be able to have a say in how they function and operate, which is fair. I mean, it's supposed to be self-governing, right?
00;19;05;22 - 00;19;29;07
Nick Healey
It is supposed to be self-governing and it's required to be well organized. Then if the medical staff doesn't have a say in how the bylaws are framed, they're not going to have the buy into the bylaws. And it's going to be less likely that they, you know, are willing to abide by them strictly. And the chances of them being considered well-organized is essentially goes down.
00;19;29;07 - 00;19;38;28
Nick Healey
So, no, absolutely is intended to be a self-governing organization, and this is the Constitution by which they organize themselves. Melanie, curious, your experience with that?
00;19;39;22 - 00;20;07;01
Melanie Durfee
They haven't had any experience with the medical staff not being involved. The medical staff is always everywhere that I've been and everybody that I've assisted been involved in the approval process. But the thought that was going through my mind while you guys were discussing was also the buy in factor and the relationship breakdown that would probably occur between the medical staff and the hospital administration if if the hospital attempted to make bylaws changes without their involvement.
00;20;07;02 - 00;20;07;14
Melanie Durfee
So.
00;20;07;25 - 00;20;33;03
Nick Healey
Yeah, well integrated joint commission and the NB accreditation neither permit unilateral amendment of the bylaws by either the governing body or the or the medical staff. And so, you know, as Ellee said, most hospitals are accredited by some organization and they mostly require both the medical staff and the governing body to approve any changes to the to the bylaws.
00;20;33;03 - 00;21;05;21
Nick Healey
So, you know, you risk your accreditation if if the governing body were to impose those on someone else. So definitely, definitely a good process to have both involved in any changes to the bylaws. So during that bylaws, you know, there's a renovation revision process. Typically, I've gone through bylaws, changes and you know, sometimes a medical staff will start them and they they want to start with the first page and they want to work their way through them to the last page.
00;21;05;26 - 00;21;27;20
Nick Healey
And in my experience, that hasn't been the most effective way to do it, because these are long, tedious documents. You know, medical set bylaws regularly go 100 pages and in my experience, medical staff, bylaws, committees notwithstanding how dedicated they are to making sure they have a good set of bylaws, can run out of steam by about page 30.
00;21;27;20 - 00;21;57;25
Nick Healey
And so you end up with if you always start at the beginning and work your way to the end, you can end up with a half or third reviewed set of bylaws, and then it sits on the shelf for another five years and nobody touched. And so as bylaws processes, bylaws, review processes go, I really like to go through the bylaws and create a list of these are things you must have in your bylaws or that you have to change in order to accommodate changes to the copies, legal requirements, accreditation requirements.
00;21;57;25 - 00;22;17;11
Nick Healey
These are the must haves. And then you create a list of want to haves. So things like Ali said that, you know, circumstances that they have come up in the past, holes they were identified in the bylaws from an operational perspective that are the second priority. And then the third priority would be would like to have these are things that it would be nice if the bylaws address.
00;22;17;11 - 00;22;38;24
Nick Healey
But, you know, they they aren't critical to our mission critical and they aren't intended to solve specific problems. And so once you work your way through that, at least you know, you know, you've you've addressed the critical things and then you can move on to the less critical things and then the, you know, the things that it would be nice to have in the bylaws but aren't crucial.
00;22;38;24 - 00;22;42;15
Nick Healey
And I'm curious what your guys experiences are with those that kind of process?
00;22;43;06 - 00;23;13;08
Ellee Cochran
Yeah, I would say my process is kind of similar to yours. When we're looking at that, they usually create a chart. It depends on if I'm doing just one hospital or like a multi system revamp of bylaws or multi hospital system revamp and in different states. But the key is like all create a chart and exactly what you're saying copies it shows what the cops are what the either joint commission or whatever their accrediting bodies requirements are for bylaws and then also state law too.
00;23;13;16 - 00;23;47;15
Ellee Cochran
So go through all of those and have like a chart so you can have and then a reference of where that exact thing is. So it's a checklist, right? I that's my process to make sure you have everything that you have to have in there. That's number one. And then from there, like as long as you have that, I've done this thing also, we're all create like a chart that we hold or the medical staff director holds that it's almost like a, hey, these are the things that have come up that we maybe want to change on a bi annual review or a tri annual review if that's how you're going to do it, you
00;23;47;15 - 00;23;51;26
Ellee Cochran
know, however you're doing it triennial, is it triennial, tri annual.
00;23;51;26 - 00;23;52;05
Nick Healey
Tri annual, three years.
00;23;52;05 - 00;24;08;08
Ellee Cochran
You know what I mean. I do. Every three years or two years, whatever you're going to do. And, and that way you remember what you're wanting to change or and then you can talk through it at that time instead of it just being like this constant need to update things.
00;24;09;01 - 00;24;18;29
Nick Healey
Well, that's an interesting point, because a lot of the medical staffs I work with talk about their bylaws as a living document and that, you know, if we don't get a.
00;24;18;29 - 00;24;21;19
Ellee Cochran
Is it a Constitution? Is it a constitution.
00;24;22;03 - 00;24;43;00
Nick Healey
I think it is. I mean, it's you know, it's intended to be general. It's intended to be something that medical staff members can count on being there for the long term. It's hard to change. It's in it's the product of compromise and intended to accommodate, you know, multiple stakeholders and be general enough that it can be applied to a lot of different situations.
00;24;43;00 - 00;25;12;00
Nick Healey
So yeah, I do actually think of the bylaws as a constitution. The rules and regs as statutes are laws and then the policies as regulations. So, you know, I actually do think of it that way. And maybe I'm, you know, maybe medical staff members do think of themselves as, you know, a legislative body akin to Congress, but, yeah, I do think it's it is an important enough document that it could be considered the, you know, the constitution of the medical staff.
00;25;12;00 - 00;25;22;10
Nick Healey
And in a lot of states, it's also a contract. So, you know, it does need to be it doesn't need to be paid significant attention to. So but Melanie, I'm curious about your experience with that.
00;25;22;28 - 00;25;40;25
Melanie Durfee
Yeah. So like during our big revamp, we we had legal counsel guiding us and they were guiding each of the meetings and they'd meet for a while. They met every two weeks and they took it section by section. I would assign to them, this is a section we're going to cover at the next meeting. You should look through it.
00;25;41;10 - 00;26;04;08
Melanie Durfee
And then those are the things that we reviewed. This is what your old bylaws said in this section. This is what's required to be there. We absolutely had to have these pieces. And so these are the things that we would recommend that are nice to have that you also put in this section. And then also the that there was time for discussion so they could bring up their concerns.
00;26;04;08 - 00;26;24;00
Melanie Durfee
What about this? A lot of that does come from, oh, this happened to us before or maybe we need to put something in about this. But it was nice to talk to you in that in each of those elements, what we have to have, what we had before, what's nice to have and the purpose of each of those sections.
00;26;24;00 - 00;26;52;18
Melanie Durfee
And because it was a long process, it was harder to get everybody to come to the meetings and read their sections ahead of time by the time we got to the end of it. But overall, I think that process worked really well for that full review. And then in the interim, I usually do keep a list of things that have been brought up and periodically that subcommittee will meet to work through and talk about if those changes are necessary, if they're allowed, and if we're going to move forward with them.
00;26;53;29 - 00;27;16;21
Nick Healey
That's it for part one of our medical staff bylaws episode. We will be back really soon with part two, in which we talk more about specific issues that come up with the medical staff, bylaws and language that you'll find in the medical staff bylaws dealing with specific concepts such as peer review, quality improvements, medical staff, leadership, those kind of things.
00;27;16;21 - 00;27;23;26
Nick Healey
So look for part two of this episode, which will be coming out really soon. Thanks very much.