NEW LONDON FAMILY MEDICAL CENTER FAIR HEARING PLAN

NEW LONDON FAMILY MEDICAL CENTER FAIR HEARING PLAN

NEW LONDON FAMILY MEDICAL CENTER FAIR HEARING PLAN TABLE OF CONTENTS ARTICLE I... 1 INITIATION OF HEARING... 1 1.1 ACTIONS OR RECOMMENDED ACTIONS... 1 1.2 WHEN DEEMED ADVERSE... 2 1.3 NOTICE OF ADVERSE ACTION OR RECOMMENDED ACTION... 2 1.4 REQUEST FOR HEARING... 3 1.5 WAIVER BY FAILURE TO REQUEST A HEARING... 3 ARTICLE II... 4 HEARING PREREQUISITES... 4 2.1 NOTICE OF HEARING... 4 2.1-1 PLACE, TIME AND DATE OF HEARING... 4 2.1-2 STATEMENT OF ISSUES AND EVENTS AND LIST OF WITNESSES... 4 2.2 APPOINTMENT OF HEARING COMMITTEE... 5 2.2-1 BY MEDICAL STAFF... 5 2.2-2 BY BOARD... 5 2.2-3 SERVICE ON HEARING COMMITTEE... 6 ARTICLE III... 6 HEARING PROCEDURE... 6 3.1 PERSONAL PRESENCE... 6 3.2 PRESIDING OFFICER... 6 3.3 REPRESENTATION... 7 3.4 RIGHTS OF PARTIES... 7 3.4-1 RIGHTS OF EACH PARTY... 7 3.4-2 RIGHTS OF PRACTITIONER... 7 3.5 HEARING PROCEDURE AND EVIDENCE... 8 3.6 OFFICIAL NOTICE... 8 3.7 BURDEN OF PROOF... 8 3.8 RECORD OF HEARING... 9 3.9 POSTPONEMENT... 9 3.10 PRESENCE OF HEARING COMMITTEE MEMBERS AND VOTE... 9 3.11 RECESSES AND ADJOURNMENT... 9 ARTICLE IV... 10 HEARING COMMITTEE REPORT AND FURTHER ACTION... 10 4.1 HEARING COMMITTEE REPORT... 10 4.2 ACTION ON HEARING COMMITTEE REPORT... 10 4.3 NOTICE AND EFFECT OF RESULT... 10 4.3-1 NOTICE... 10 4.3-2 EFFECT OF FAVORABLE RESULT... 10 i

(a) ADOPTED BY THE BOARD... 10 (b) ADOPTED BY THE MEC... 10 4.3-3 EFFECT OF ADVERSE RESULT... 11 ARTICLE V... 11 INITIATION AND PREREQUISITES OF APPELLATE REVIEW... 11 5.1 APPELLATE REVIEW... 11 5.2 WAIVER BY FAILURE TO REQUEST APPELLATE REVIEW... 12 5.3 NOTICE OF TIME, PLACE AND DATE FOR APPELLATE REVIEW... 12 5.4 APPELLATE REVIEW COMMITTEE... 12 5.5 SERVICE ON APPELLATE REVIEW COMMITTEE... 13 ARTICLE VI... 13 APPELLATE REVIEW PROCEDURE... 13 6.1 NATURE OF PROCEEDINGS... 13 6.2 WRITTEN STATEMENTS... 13 6.3 PRESIDING OFFICER... 14 6.4 ORAL STATEMENT... 14 6.5 CONSIDERATION OF NEW OR ADDITIONAL MATTERS... 14 6.6 POWERS... 14 6.7 PRESENCE OF MEMBERS AND VOTE... 14 6.8 RECESSES AND ADJOURNMENT... 14 6.9 ACTION TAKEN... 15 6.10 CONCLUSION... 15 ARTICLE VII... 15 FINAL DECISION OF THE BOARD... 15 7.1 BOARD ACTION... 15 7.2 JOINT CONFERENCE REVIEW... 15 7.3 FINAL BOARD DECISION... 16 ARTICLE VIII... 16 GENERAL PROVISIONS... 16 8.1 EXHAUSTION OF REMEDIES... 16 8.2 FINAL ACTION... 16 8.3 REPORTING OF FINAL ADVERSE ACTIONS... 16 8.4 DISPUTING REPORT LANGUAGE... 17 8.5 HEARING OFFICER APPOINTMENT AND DUTIES... 17 8.6 NUMBER OF HEARINGS AND REVIEWS... 17 8.7 RELEASE... 17 8.8 WAIVER... 17 8.9 DEFINITIONS... 18 - ii -

ARTICLE IX... 18 ADOPTION AND AMENDMENT... 18 9.1 ADOPTION... 18 9.1-1 MEDICAL STAFF... 18 9.1-2 BOARD... 18 9.2 AMENDMENT... 18 9.3 MEDICAL STAFF RESPONSIBILITY AND BOARD INITIATIVE... 19 - iii -

NEW LONDON FAMILY MEDICAL CENTER FAIR HEARING PLAN ARTICLE I INITIATION OF HEARING 1.1 ACTIONS OR RECOMMENDED ACTIONS The following actions or recommended actions shall, if deemed adverse pursuant to Section 1.2 of this Fair Hearing Plan ( Plan ), entitle the Practitioner affected thereby to a hearing unless such actions are excepted from this Plan under Section 10.2.5 of the Bylaws of the Medical Staff of New London Family Medical Center ( NLFMC Medical Staff Bylaws ): (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) Denial of initial Medical Staff appointment. Denial of Medical Staff reappointment. Suspension of Medical Staff membership. Revocation of Medical Staff membership. Denial of requested advancement in Medical Staff category. Involuntary reduction in Medical Staff category. Limitation of the right to admit patients. Denial of requested department/service/section affiliation. Denial of requested clinical privileges. Involuntary reduction in clinical privileges. Suspension of clinical privileges. Termination of clinical privileges. Terms of probation. Individual application of, or individual change in mandatory consultation requirement. 1

1.2 WHEN DEEMED ADVERSE An action or recommended action action listed in Section 1.1 of this Plan shall be deemed adverse only when it has been: (a) (b) (c) Recommended by the Medical Executive Committee (MEC); or Taken by the Board contrary to a favorable recommendation by the MEC under circumstances where no right to a hearing existed; or Taken by the Board on its own initiative without benefit of a prior recommendation by the MEC. 1.3 NOTICE OF ADVERSE ACTION OR RECOMMENDED ACTION A Practitioner against whom an adverse action or recommended action has been made or taken pursuant to Section 1.2 of this Plan shall promptly be given special notice of such action or recommended action. Such notice shall: (a) State the adverse action or recommended action to be taken 1 and that such action or recommended action, if taken, shall be reported to the Wisconsin Medical Examining Board ( Medical Examining Board ) or podiatrists affiliated examining board 2 ( Podiatrist Examining Board ), whichever is applicable, and/or the National Practitioner Data Bank, if required. 3 If the adverse action or recommended action is reportable to the Medical Examining Board or Podiatrist Examining Board and/or the National Practitioner Data Bank, the written notice shall also state the proposed text of the report(s). 4 (b) State the reasons for the adverse action or recommended action, including the acts or omissions with which the Practitioner is charged. 5 1 The Health Care Quality Improvement Act ( Act ) requires that the notice state the proposed action to be taken against the Practitioner. 42 U.S.C. 11112(b)(1). 2 Wisconsin s hospital licensing statute requires hospitals to report adverse actions taken against physicians or podiatrists on the hospital s medical staff to the Medical Examining Board or the podiatrists affiliated examining board, whichever is applicable. Wis. Stat. 50.36(3)(b) and (c). 3 The Act requires hospitals to report certain adverse actions to the National Practitioner Data Bank. 42 U.S.C. 11133. 4 A Practitioner may not otherwise be aware that the action proposed is reportable. By providing the proposed text of the actual report, a Practitioner is given ample notice of the report s contents, and the opportunity through the hearing process to correct it as needed. 5 The Act requires that the notice state the reasons for the proposed action. 42 U.S.C. 11112(b)(1). 2

(c) (d) (e) (f) (g) Advise the Practitioner of the Practitioner s right to a hearing pursuant to the provisions of the NLFMC Medical Staff Bylaws and this Plan. Specify that the Practitioner has at least thirty (30) days within which to submit a written request for a hearing. 6 State that failure to request a hearing within the specified time period shall constitute a waiver of rights to a hearing and to an appellate review on the matter. State that upon receipt of the Practitioner s request for a hearing, the Practitioner will be notified of the date, time and place of the hearing and a list of the witnesses, if any, expected to testify at the hearing on behalf of the MEC or Board. 7 Summarize the Practitioner s rights granted in the hearing, as specified in Section 3.4. 8 1.4 REQUEST FOR HEARING A Practitioner shall have at least thirty (30) days following the Practitioner s receipt of a notice pursuant to Section 1.3 to file a written request for a hearing. 9 Such request shall be delivered to the Chief Executive Officer either in person or by certified or registered U.S. mail and received by 5:00 p.m. no later than thirty (30) days after the date the Practitioner received the notice. If the thirtieth (30 th ) day falls on a Saturday, Sunday or legal holiday, the next business day shall constitute the 30 th day for purposes of filing a timely request for a hearing under this Section 1.4. 1.5 WAIVER BY FAILURE TO REQUEST A HEARING A Practitioner who fails to request a hearing within the time and in the manner specified in Section 1.4 waives any right to such hearing and to any appellate review to which the Practitioner might otherwise have been entitled. Such waiver in connection with: 6 The Act requires that the Practitioner be given at least 30 days within which to request a hearing. 42 U.S.C. 11112(b)(1). 7 The Act requires that the notice identify the list of witnesses expected to testify at the hearing. 42 U.S.C. 11112(b)(2). 8 The Act requires that the notice summarize the Practitioner s rights in the hearing. 42 U.S.C. 11112(b)(1)(c). 9 The Act requires that the Practitioner be given at least 30 days within which to request a hearing. 42 U.S.C. 11112(b)(1). 3

(a) (b) An adverse action by the Board shall constitute acceptance of that action, which shall thereupon become effective as the final decision of the Board. An adverse recommendation by the MEC shall constitute acceptance of that recommendation, which shall thereupon become and remain effective pending the final decision of the Board. The Board shall consider the MEC s recommendation at its next regular meeting following waiver. In its deliberations, the Board shall review all the information and material considered by the MEC and may consider all other relevant information received from any source. If the Board's action on the matter is in accord with the MEC's recommendations, such action shall constitute a final decision of the Board. If the Board's action has the effect of changing the MEC's recommendation, the matter shall be submitted to a joint conference as provided in Section 7.2 of this Plan. The Board's action on the matter following receipt of the joint conference recommendation shall constitute its final decision. The Chief Executive Officer shall promptly send the Practitioner special notice informing the Practitioner of each action taken pursuant to this Section 1.5(b) and shall notify the Medical Staff President and the MEC of each such action. 2.1 NOTICE OF HEARING ARTICLE II HEARING PREREQUISITES 2.1-1 PLACE, TIME AND DATE OF HEARING Upon receipt of a timely request for hearing, the Chief Executive Officer shall deliver such request to the Medical Staff President or to the Board, depending on whose action or recommended action prompted the request for hearing. Within fifteen (15) days after receipt of such request, the Medical Staff President or the Board shall schedule and arrange for a hearing. The Chief Executive Officer shall send the Practitioner notice of the place, time, and date of the hearing, which date shall not be less than thirty (30) days or more than 90 days from the date of receipt of the request for hearing; provided, however, that a hearing for a Practitioner who is under suspension then in effect shall be held as soon as the arrangements for it may reasonably be made, but not less than thirty (30) days from the date of receipt of the request for hearing. 10 2.1-2 STATEMENT OF ISSUES AND EVENTS AND LIST OF WITNESSES The notice of hearing required by Section 2.1-1 shall contain a concise statement of the Practitioner's alleged acts or omissions, a list by number of the specific or representative 10 The Act requires that the hearing occur no earlier than 30 days from the date of the notice of hearing. 42 U.S.C. 11112(b)(2). 4

patient records in question and/or other reasons or subject matter forming the basis for the adverse action or recommended action which is the subject of the hearing. 11 The notice of hearing shall also include a list of witnesses, if any, expected to testify at the hearing on behalf of the MEC or the Board. 12 2.2 APPOINTMENT OF HEARING COMMITTEE 2.2-1 BY MEDICAL STAFF When a hearing is requested for an adverse recommendation by the MEC under Section 1.2(a), the Chief Executive Officer shall recommend individuals to the Board for appointment to the hearing committee. 13 The Board shall be deemed to approve the selection unless, within five (5) days, it provides written notice to the Chief Executive Officer stating the reasons for his/her objection. 14 The hearing committee shall be composed of five (5) members of the Medical Staff, none of whom may be in direct economic competition with the Practitioner involved. 15 One of the members so appointed shall be designated as chairman of the hearing committee. 2.2-2 BY BOARD When a hearing is requested for an adverse action by the Board under Section 1.2(b) or (c), the hearing shall be held before a hearing committee appointed by the chairman of the Board and composed of five (5) persons, none of whom may be in direct economic competition with the Practitioner involved. 16 At least two (2) members of the Medical Staff shall be included on this committee when feasible. One of the appointees to the hearing committee shall be designated as chairman of the hearing committee. 11 The Act requires that the notice state the reasons for the proposed action. 42 U.S.C. 11112(b)(1). 12 The Act requires that the notice identify the list of witnesses expected to testify at the hearing. 42 U.S.C. 11112(b)(2). 13 We recommend delegating the responsibility to appoint members of the hearing committee to the Chief Executive Officer. The original draft assigned this responsibility to the Medical Staff President. It is our opinion that this could raise concerns about fairness and objectivity since the adverse recommendation is made by the MEC, the entity over which the Medical Staff President presides. 14 The Act requires the hospital to appoint a hearing committee. 42 U.S.C. 11112(b)(3)(A). 15 The Act requires that no person on the hearing committee be in direct economic competition with the Practitioner involved. 42 U.S.C. 11112(b)(3)(A). 16 The Act requires that no person on the hearing committee be in direct economic competition with the Practitioner involved. 42 U.S.C. 11112(b)(3)(A). 5

2.2-3 SERVICE ON HEARING COMMITTEE A Medical Staff or Board member shall not be disqualified from serving on a hearing committee merely because the member either has heard of the case or has knowledge of the facts involved or what the member supposes the facts to be. 17 Only under extreme circumstances shall a member of the body whose adverse action or recommended action occasioned the hearing serve on the hearing committee. If in the interest of absolute impartiality the Board deems it necessary to constitute a hearing committee from among persons with no affiliation to the Hospital or its Medical Staff, it may do so, providing that such persons represent the membership of the Wisconsin Medical Society or a medical specialty organization or another hospital Board of directors. 3.1 PERSONAL PRESENCE ARTICLE III HEARING PROCEDURE The personal presence of the Practitioner who requested the hearing shall be required. A Practitioner who fails without good cause to appear and proceed at such hearing shall be deemed to have waived his rights in the same manner and with the same consequence as provided in Section 1.5. 3.2 PRESIDING OFFICER The hearing officer, if one is appointed pursuant to Section 8.5, or if a hearing officer is not appointed, the chairman of the hearing committee, shall be the presiding officer. The presiding officer shall act to maintain decorum and to assure that all participants in the hearing have a reasonable opportunity to present relevant oral and documentary evidence. He shall be entitled to determine the order of procedure during the hearing and shall make all rulings on matters of law, procedure, and admissibility of evidence. The presiding officer, whether appointed pursuant to Section 8.5 or appointed by virtue of being the chairman of the hearing committee, shall not be in direct economic competition with the Practitioner involved. 18 17 We recommend deleting language in the original draft that would allow a member of the Medical Staff or Board to serve on the hearing committee even if the member was involved in the initiation or investigation of the adverse action or recommended adverse action. It is our opinion that allowing members of the Medical Staff or Board to serve on the hearing committee under these circumstances raises concerns about fairness and objectivity. 18 The Act requires that no person on the hearing committee be in direct economic competition with the Practitioner involved. 42 U.S.C. 11112(b)(3)(A). 6

3.3 REPRESENTATION The Practitioner who requested the hearing shall be entitled to representation by legal counsel in any phase of the hearing, if the Practitioner so chooses, and shall receive notice of the right to obtain representation by legal counsel in accordance with Section 1.3. If the affected Practitioner desires to be represented by legal counsel, the Practitioner s initial request for a hearing must state his wish to be so represented. The MEC or the Board shall be allowed representation by legal counsel if, and only if, the Practitioner is so represented. In the absence of legal counsel, the Practitioner shall be entitled to be accompanied and represented at the hearing by an individual of the Practitioner s choice. 19 In such an event, the MEC or the Board shall appoint an individual to represent the facts in support of its adverse action or recommended action. 3.4 RIGHTS OF PARTIES 3.4-1 RIGHTS OF EACH PARTY 20 During a hearing, each of the parties shall have the right to: (a) (b) (c) (d) Call, examine, cross-examine and impeach witnesses. Present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law. Rebut any evidence. Have a record made of the hearing. 3.4-2 RIGHTS OF PRACTITIONER 21 During a hearing, the Practitioner shall have the following rights, in addition to those listed above: (a) (b) Representation by an attorney or other person of the Practitioner s choice. Submission of a written statement at the close of the hearing. 19 The Act provides for the right to representation by an attorney or other individual of the Practitioner s choice. 42 U.S.C. 11112(b)(3)(C). 20 The Act grants the Practitioner these rights during a hearing. 42 U.S.C. 11112(b)(3)(C). 21 The Act grants the Practitioner these rights during the hearing. 42 U.S.C. 11112(b)(3)(C). 7

Upon completion of the hearing, the Practitioner involved has the right to: 22 (a) (b) (c) Receive copies of the record made of the hearing upon payment of any reasonable charges associated with the preparation thereof. Receive a copy of the written recommendation and report of the hearing committee including a statement of the basis for the recommendation. Receive a written decision of the MEC or Board, including a statement of the basis for the recommendation. 3.5 HEARING PROCEDURE AND EVIDENCE The hearing need not be conducted strictly according to the rules of law relating to the examination of witnesses or presentation of evidence. Any relevant matter upon which responsible persons customarily rely in the conduct of serious affairs shall be admitted, regardless of the admissibility of such evidence in a court of law. Each party shall, prior to or during the hearing, be entitled to submit memoranda concerning any issues of law or fact, and such memoranda shall become part of the hearing record. The presiding officer may, but shall not be required to, order that oral evidence be taken only on oath or affirmation administered by any person designated by the presiding officer and entitled to notarize documents in the state where the hearing is held. 3.6 OFFICIAL NOTICE In reaching a decision, the hearing committee may take official notice, either before or after submission of the matter for decision, of any generally accepted technical or scientific matter relating to the issues under consideration and of any facts that may be judicially noticed by the courts of the state where the hearing is held. Parties present at the hearing shall be informed of the matters to be noticed and those matters shall be noted in the hearing record. Any party shall be given opportunity, on timely request, to request that a matter be officially noticed and to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the hearing committee. The hearing committee shall also be entitled to consider all other information that can be considered, pursuant to the NLFMC Medical Staff Bylaws, in connection with applications for appointment or reappointment to the Medical Staff and for clinical privileges. 3.7 BURDEN OF PROOF When a hearing relates to Section 1.1(a), (e), (h), or (i), the Practitioner who requested the hearing shall have the burden of proving, by clear and convincing evidence, that the adverse action or recommended action lacks any substantial factual basis or that such 22 The Act grants a Practitioner these rights after a hearing. 42 U.S.C. 11112(b)(3)(D). 8

basis or the conclusions drawn therefrom are arbitrary, unreasonable, or capricious. Otherwise, the body whose adverse action or recommended action occasioned the hearing shall have the initial obligation to present evidence in support thereof, but the Practitioner shall thereafter be responsible for supporting the Practitioner s challenge to the adverse action or recommended action by a preponderance of the evidence that the grounds therefore lack any substantial factual basis or that such basis or the conclusions drawn therefrom are either arbitrary, capricious, or were not supported by credible evidence. 3.8 RECORD OF HEARING A record of the hearing shall be kept that is of sufficient accuracy to permit an informed and valid judgment to be made by any group that may later be called upon to review the record and render a recommendation or decision in the matter. The hearing committee will select the method to be used for making the record, such as court reporter, electronic recording unit, detailed transcription, or minutes of the proceedings. 23 3.9 POSTPONEMENT Requests for postponement of a hearing shall be granted by the hearing committee only upon a showing of good cause and only if the request therefore is made as soon as is reasonably practical. 3.10 PRESENCE OF HEARING COMMITTEE MEMBERS AND VOTE A majority of the hearing committee must be present throughout the hearing and deliberations. If a committee member is absent from any part of the proceedings, the committee member shall not be permitted to participate in the deliberations or the decision. 3.11 RECESSES AND ADJOURNMENT The hearing committee may recess the hearing and reconvene the same without additional notice for the convenience of the participants or for the purpose of obtaining new or additional evidence or consultation. Upon conclusion of the presentation of oral and written evidence, the hearing shall be closed. The hearing committee shall thereupon, at a time convenient to itself, conduct its deliberations outside the presence of the parties. Upon conclusion of its deliberations, the hearing shall be declared finally adjourned. 23 We caution against relying on minutes of the proceeding. They can be incomplete and inaccurate. 9

ARTICLE IV HEARING COMMITTEE REPORT AND FURTHER ACTION 4.1 HEARING COMMITTEE REPORT Within ten (10) days after final adjournment of the hearing, the hearing committee shall make a written report of its findings and recommendations in the matter and shall forward the same, together with the hearing record and all other documentation considered by it, to the body whose adverse action or recommended action occasioned the hearing. The written report by the hearing committee shall be supported by reference to the hearing record and other documentation considered by it. 4.2 ACTION ON HEARING COMMITTEE REPORT Within twenty (20) days after receipt of the report of the hearing committee, the MEC or the Board, as the case may be, shall consider the same and affirm, modify or reverse its action or recommended action in the matter. It shall transmit the result, together with the hearing record, the report of the hearing committee and all other documentation considered, to the Chief Executive Officer. 4.3 NOTICE AND EFFECT OF RESULT 4.3-1 NOTICE The Chief Executive Officer shall promptly send a copy of the result to the Medical Staff President, the MEC, the Board and the Practitioner by special notice. 4.3-2 EFFECT OF FAVORABLE RESULT (a) (b) ADOPTED BY THE BOARD: If the Board's result pursuant to Section 4.2 is favorable to the Practitioner, such result shall become the final decision of the Board and the matter shall be considered finally closed. ADOPTED BY THE MEC: If the MEC's result is favorable to the Practitioner, the Chief Executive Officer shall promptly forward it, together with all supporting documentation, to the Board for its final action. The Board shall take action thereon by adopting or rejecting the MEC's result in whole or in part, or by referring the matter back to the MEC for further consideration. Any such referral back shall state the reasons therefore, set a time limit within which a subsequent recommendation to the Board must be made, and may include a directive that an additional hearing be conducted to clarify issues that are in doubt. After receipt of such subsequent recommendation and any new evidence in the matter, the Board shall take final action. 10

The Chief Executive Officer shall promptly send the Practitioner special notice informing the Practitioner of each action taken pursuant to this Section 4.3-2(b). If the Board s action is favorable to the Practitioner, such action shall become the final decision of the Board, and the matter shall be considered finally closed. 4.3-3 EFFECT OF ADVERSE RESULT If the result of the Board or the MEC pursuant to Section 4.2 is adverse to the Practitioner in any of the respects listed in Section 1.1 of this Plan, the special notice required by Section 4.3-1 shall state the adverse action or recommended action to be taken and that such action or recommended action, if taken, shall be reported to the Medical Examining Board or the Podiatrist Examining Board, whichever is applicable, 24 and/or the National Practitioner Data Bank, if required. 25 If the adverse action or recommended action is reportable to the Medical Examining Board or Podiatrist Examining Board and/or the National Practitioner Data Bank, the special notice shall also state the proposed text of the report(s). 26 The special notice shall also inform the Practitioner of his right to request an appellate review by the Board as provided in Section 5.1 of this Plan. ARTICLE V INITIATION AND PREREQUISITES OF APPELLATE REVIEW 5.1 APPELLATE REVIEW A Practitioner shall have twenty (20) days following his receipt of a special notice pursuant to Section 4.3-3 to file a written request for an appellate review. Such request shall be delivered to the Chief Executive Officer either in person or by certified or registered U.S. mail and received by 5:00 p.m. no later than twenty (20) days after the date the Practitioner received the notice. If the twentieth (20 th ) day falls on a Saturday, Sunday or legal holiday, the next business day shall constitute the 20 th day for purposes of filing a timely request for an appellate review under this Section 5.1. 24 Wisconsin s hospital licensing statute requires hospitals to report adverse actions taken against physicians or podiatrists on the hospital s medical staff to the Medical Examining Board or the podiatrists affiliated examining board, whichever is applicable. Wis. Stat. 50.36(3)(b) and (c). 25 The Act requires hospitals to report certain adverse actions to the National Practitioner Data Bank. 42 U.S.C. 11133. 26 A Practitioner may not otherwise be aware that the action proposed is reportable. By providing the proposed text of the actual report, a Practitioner is given ample notice of the report s contents, and the opportunity through the hearing process to correct it as needed. 11

The Practitioner s request shall include the reasons for appeal and the specific facts or circumstances which justify further review. The Practitioner s request may also include a request for a copy of the report and record of the hearing committee and all other material, favorable or unfavorable, if not previously forwarded, that was considered in determining the adverse result. The grounds for appeal shall be limited to the following: (a) (b) There was substantial failure to comply with the NLFMC Medical Staff Bylaws, this Plan, applicable policies of the Hospital or Medical Staff during or prior to the hearing, so as to deny the Practitioner a fair hearing; and/or The recommendations of the hearing committee or the decisions by the MEC or Board were made arbitrarily, capriciously and/or were not supported by credible evidence. 5.2 WAIVER BY FAILURE TO REQUEST APPELLATE REVIEW A Practitioner who fails to request an appellate review within the time and in the manner specified in Section 5.1 above waives any right to such review. Such waiver shall have the same force and effect as that provided in Section 1.5 of this Plan. 5.3 NOTICE OF TIME, PLACE AND DATE FOR APPELLATE REVIEW Upon receipt of a timely request for appellate review, the Chief Executive Officer shall deliver such request to the Board. As soon as practicable, the Board shall schedule and arrange for an appellate review which shall be not less than thirty (30) days from the date of receipt of the appellate review request; provided, however, that an appellate review for a Practitioner who is under a suspension then in effect shall be held as soon as the arrangements for it may reasonably be made, but not later than twenty (20) days from the date of receipt of the request for review. At least fifteen (15) days prior to the appellate review, the Chief Executive Officer shall send the Practitioner special notice of the time, place, and date of the review. The time for the appellate review may be extended by the Appellate Review Committee for good cause and if the request therefore is made as soon as is reasonably practical. 5.4 APPELLATE REVIEW COMMITTEE The Board shall determine whether the appellate review shall be conducted by the Board as a whole or by a committee consisting of five (5) members of the Board who are appointed by the chairman of the Board ( Appellate Review Committee ). One of the members of the Appellate Review Committee shall be designated as chairman of the Appellate Review Committee. 12

No person on the Board who is involved in the appellate review and no member of the Appellate Review Committee may be in direct economic competition with the Practitioner involved. 5.5 SERVICE ON APPELLATE REVIEW COMMITTEE A member of the Board shall not be disqualified from serving on the Appellate Review Committee merely because the member has heard of the case or has knowledge of the facts involved or what the member supposes the facts to be. 27 If in the interest of absolute impartiality the Board deems it necessary to constitute an Appellate Review Committee from among persons with no affiliation to the Hospital or its Medical Staff, it may do so, providing that such persons represent the membership of the Wisconsin Medical Society or a medical specialty organization or another hospital board of directors. 6.1 NATURE OF PROCEEDINGS ARTICLE VI APPELLATE REVIEW PROCEDURE The proceedings by the Appellate Review Committee shall be in the nature of an appellate review based upon the record of the hearing before the hearing committee, that committee's report, and all subsequent results and actions thereon. The Appellate Review Committee shall also consider the written statements, if any, submitted pursuant to Section 6.2 of this Plan and such other material as may be presented and accepted under Sections 6.4 and 6.5 of this Plan. 6.2 WRITTEN STATEMENTS The Practitioner seeking the review may submit a written statement detailing the findings of fact, conclusions and procedural matters with which the Practitioner disagrees, and his reasons for such disagreement. This written statement may cover any matters raised during the hearing process, and legal counsel may assist in its preparation. The written statement shall be submitted to the Appellate Review Committee through the Chief Executive Officer at least ten (10) days prior to the scheduled date of the appellate review, except if such time limit is waived by the Appellate Review Committee upon request. A written statement in reply may be submitted by the MEC or by the Board, and if submitted, the Chief Executive Officer shall provide a copy thereof to the Practitioner at least five (5) days prior to the scheduled date of the appellate review. 27 We recommend deleting language in the original draft that would allow a member of the Board to serve on the Appellate Review Committee even if the member was involved in the initiation or investigation of the adverse action or recommended adverse action. It is our opinion that allowing members of the Board to serve on the Appellate Review Committee under these circumstances raises concerns about fairness and objectivity. 13

6.3 PRESIDING OFFICER The chairman of the Appellate Review Committee shall be the presiding officer. The presiding officer shall determine the order of the procedure during the review, make all required rulings, and maintain decorum. 6.4 ORAL STATEMENT The Appellate Review Committee, will allow the parties or their representatives, including legal counsel, to personally appear and make oral statements in favor of their positions. Any party or representative so appearing shall be required to answer questions put to him by any member of the Appellate Review Committee. 6.5 CONSIDERATION OF NEW OR ADDITIONAL MATTERS New or additional matters or evidence not raised or presented during the original hearing or in the hearing report and not otherwise reflected in the record shall be introduced at the appellate review only in the discretion of the Appellate Review Committee, following an explanation by the party requesting the consideration of such matter or evidence as to why it was not presented earlier. 6.6 POWERS The Appellate Review Committee shall have all the powers granted to the hearing committee, and such additional powers as are reasonably appropriate to the discharge of its responsibilities. 6.7 PRESENCE OF MEMBERS AND VOTE A majority of the Appellate Review Committee must be present throughout the review and deliberations. If a member of the Appellate Review Committee is absent from any part of the proceedings, the member shall not be permitted to participate in the deliberations or the decision. 6.8 RECESSES AND ADJOURNMENT The Appellate Review Committee may recess the review proceedings and reconvene the same without additional notice for the convenience of the participants or for the purpose of obtaining new or additional evidence or consultation. Upon the conclusion of oral statements, if allowed, the appellate review shall be closed. The Appellate Review Committee shall thereupon, at a time convenient to itself, conduct its deliberations outside the presence of the parties. Upon the conclusion of those deliberations, the appellate review shall be declared finally adjourned. 14

6.9 ACTION TAKEN The Appellate Review Committee may recommend that the Board affirm, modify, or reverse the adverse result or action taken by the MEC or by the Board pursuant to Section 4.2, or, in its discretion, may refer the matter back to the hearing committee for further review and recommendation to be returned to it within thirty (30) days and in accordance with its instructions. Within twenty (20) days after receipt of such recommendations after referral, the Appellate Review Committee shall make its recommendations to the Board as provided in this Section 6.9. 6.10 CONCLUSION The appellate review shall not be deemed to be concluded until all of the procedural steps provided herein have been completed or waived. 7.1 BOARD ACTION ARTICLE VII FINAL DECISION OF THE BOARD Within ten (10) days after the conclusion of the appellate review, the Board shall render its final decision in the matter in writing, shall specify the reasons for the action taken, and shall send notice thereof to the Medical Staff President, the MEC, and the Practitioner by special notice. If the Board s final decision is in accord with the MEC or the Board s last recommendation in the matter, if any, it shall be immediately effective and final. If the Board's final decision has the effect of changing the MEC or Board s last recommendation, if any, the Board shall refer the matter to a joint conference committee as provided in Section 7.2 below. 7.2 JOINT CONFERENCE REVIEW Within thirty (30) days of its receipt of a matter referred to it by the Board pursuant to the provisions in this Plan, the joint conference committee of equal numbers of Medical Staff and Board members shall convene to consider the matter and shall submit its written recommendation to the Board. 15

7.3 FINAL BOARD DECISION Following its receipt of the written recommendation by the joint conference committee, the Board shall make its final decision and shall send notice thereof to the Chief Executive Officer, together with the appellate review and joint conference review records, and all documentation considered by it. The Chief Executive Officer shall notify the Medical Staff President, the MEC and the Practitioner by special notice, with a statement for the basis of the decision. The decision of the Board shall immediately be effective and final and shall not be subject to further hearing or appellate review. If the final decision of the Board continues to be adverse to the Practitioner in any of the respects listed in Section 1.1 of this Plan, the special notice issued under this Section 7.3 shall also inform the Practitioner that the final decision will be reported to the Wisconsin Medical Examining Board or Podiatrist Examining Board, 28 whichever is applicable, and/or the National Practitioner Data Bank, if required, and state the proposed text of the report(s). 8.1 EXHAUSTION OF REMEDIES ARTICLE VIII GENERAL PROVISIONS If adverse actions or recommended actions as described in Section 1.1 are made or taken, the Practitioner must exhaust the remedies afforded by this Plan before resorting to legal action. 8.2 FINAL ACTION Actions and recommended adverse actions described in Section 1.1 shall become final only after the hearing and appellate rights set forth in this Plan have either been exhausted or waived, and only upon being adopted as final actions by the Board. 8.3 REPORTING OF FINAL ADVERSE ACTIONS The Hospital, through its authorized representative, shall report an adverse action to the Medical Examining Board or the Podiatrist Examining Board, whichever is applicable, and/or the National Practitioner Data Bank only upon the Board s adoption of the action as a final action and only using the description set forth in the final action as adopted by the Board. The authorized representative shall report any and all revisions of an adverse 28 Wisconsin s hospital licensing statute requires hospitals to report adverse actions taken against physicians or podiatrists on the hospital s medical staff to the Medical Examining Board or the podiatrists affiliated examining board, whichever is applicable. Wis. Stat. 50.36(3)(b) and (c). 16

action, including, but not limited to, any expiration of the final action consistent with the terms of that final action. 29 8.4 DISPUTING REPORT LANGUAGE If no hearing or appellate review was requested, the Practitioner who is the subject of a proposed adverse action reportable to the Wisconsin Examining Board or the Podiatrist Examining Board, whichever is applicable, and/or the National Practitioner Data Bank may request an informal meeting to dispute the text of the report filed. The report dispute meeting shall not constitute a hearing and shall be limited to the issue of whether the report filed is consistent with the final action issued. The meeting shall be attended by the Practitioner who is the subject of the report, the Medical Staff President and the Hospital s authorized representative, or their respective designees. If a hearing was held, the dispute process shall be deemed to have been completed. 8.5 HEARING OFFICER APPOINTMENT AND DUTIES The use of a hearing officer to preside at an evidentiary hearing is optional. The use and appointment of such officer shall be determined by the Board after consultation with the Medical Staff President. A hearing officer may or may not be an attorney at law but must be experienced in conducting hearings. He shall act as the presiding officer of the hearing. 8.6 NUMBER OF HEARINGS AND REVIEWS Notwithstanding any other provision of the NLFMC Medical Staff Bylaws or of this Plan, no Practitioner shall be entitled as a right to more than one (1) evidentiary hearing and one (1) appellate review with respect to an adverse action or recommended action. 8.7 RELEASE By requesting a hearing or appellate review under this Plan, a Practitioner agrees to be bound by the provision of Section 16.5 in the NLFMC Medical Staff Bylaws relating to immunity from liability in all matters relating thereto. 8.8 WAIVER If at any time after receipt of special notice of an adverse action, recommended action or result, a Practitioner fails to make a required request or appearance or otherwise fails to comply with this Plan or to proceed with the matter, the Practitioner shall be deemed to have consented to such adverse action, recommended action, or result and to have voluntarily waived all rights to which the Practitioner might otherwise have been entitled 29 45 C.F.R. 60. 17

under the NLFMC Medical Staff Bylaws then in effect or under this Plan with respect to the matter involved. 8.9 DEFINITIONS Capitalized terms used in this Plan but not otherwise defined shall have the meanings assigned to them in the NLFMC Medical Staff Bylaws. Such meanings are hereby incorporated and made part of this Plan by reference. 9.1 ADOPTION 9.1-1 MEDICAL STAFF ARTICLE IX ADOPTION AND AMENDMENT The foregoing Plan was adopted and recommended to the MEC in accordance with and subject to the NLFMC Medical Staff Bylaws. 9.1-2 BOARD /s/ Timothy Rasor, M.D. Medical Staff President August 11, 2004 The foregoing Plan was approved and adopted by resolution of the Board after considering the MEC's recommendation and in accordance with and subject to the Hospital Corporate Bylaws. 9.2 AMENDMENT /s/ Kerry Griebenow President of the Board February 22, 2005 This Plan may be amended or repealed, in whole or in part, by a resolution of the MEC recommended to and adopted by the Board, subject always to the Bylaws of the respective bodies. 18

9.3 MEDICAL STAFF RESPONSIBILITY AND BOARD INITIATIVE The principles stated in the NLFMC Medical Staff Bylaws and Hospital Corporate Bylaws regarding medical staff responsibility and authority to formulate, adopt and recommend NLFMC Medical Staff Bylaws and amendments thereto and the circumstances under which the Board may resort to its own initiative in accomplishing those functions shall apply as well to the formulation, adoption and amendment of this Plan. MN203977_1.DOC 19