Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

vu one UoUrl, US.

FILED

" No. 15-274 LAN -4 2016

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

WHOLE WOMAN’S HEALTH, et ai.,

Petitioners,

v.

KIRK COLE, M.D., COMMISSIONER OF THE TEXAS

DEPARTMENT OF STATE HEALTH SERVICES, et al.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE FIFTH CircuIT

BRIEF OF AMICI CURIAE MEDICAL

STAFF PROFESSIONALS IN SUPPORT

OF PETITIONERS

PuILip H. LEBow!Tz

Counsel of Record

ERIN M. Durry

KATHARYN I. CHRISTIAN McGEE

ALISON TAYLOR ROSENBLUM

ERICA FRUITERMAN

DuANE Morris LLP

30 South 17th Street

Philadelphia, Pennsylvania 19103

(215) 979-1000

lebowitz@duanemorris.com

Counsel for Amici Curiae

263165 ce

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

t

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. ..................00000e i

TABLE OF APPENDICES ...................... iii

TABLE OF CITED AUTHORITIES .............. iv

INTEREST OF AMICI CURIAE .................. l

SUMMARY OF ARGUMENT..................... 9

eee ee ee 12

I. Pre-application requirements and the

credentialing process deny most

outpatient providers the opportunity to

apply for admitting privileges............... 12

A. Pre-Application and Threshold

a Stata ES ae 13

B. Credentialing Application .............. 16

II. Physicians who provide abortions in

outpatient clinics cannot fulfill

hospital requirements for admitting

privileges because they do not have

eee 18

A. Experience with Inpatient Treatment... .19

B. Specialty-Related Requirements ........ 23

i

Table of Contents

Page

III. The discretionary nature of the

credentialing and privileging process

creates an opportunity to deny abortion

providers admitting privileges on grounds

other than clinical competence .............. 25

A. Denial Based on Economic Impact....... 25

B. Denial Based on Hospital Mission ....... 28

IV. An outpatient provider who is granted

admitting privileges likely will lose them

due to ongoing review requirements ......... 31

CAUPRMEENY ov vucvecceveseutussausdeaeeeanee 36

iu0

TABLE OF APPENDICES

APPENDIX A — PROCESS FOR OBTAINING

STAFF MEMBERSHIP ..............0cceeee. la

APPENDIX B — PROCESS FOR OBTAINING

edb ttedudeen sdésiverssevevecees 2a

Ww

TABLE OF CITED AUTHORITIES

Page

CASES

Planned Parenthood of Wisconsin, Inc. v.

Schimel,

806 F.3d 908 (7th Cir. 2015) ........... 11, 20, 28, 33

Robinson v. UGHS Dallas Hospitals, Inc.,

No. DC-14-04101 (Tex. Dist. Ct. June 9, 2014) . .30, 31

STATUTES AND REGULATIONS

Sr es cas colesavcedcwidvedvewsseceenes 13

ee ee ED 6 oiccicnscucadgdoaseadsecateds 29

Le SED dutidccccceecsaendssscvckoinenees 1

ER EEE oteenceségencciwewinessssssdeanent 1

Tex. Health & Safety Code Ann. § 171.0031

GEE vi ceccasenseswnecceaces passim

Tex. Occ. Code Ann. § 103.002(b) (1999). ............ 29

SP nedadescutivdchssbeeons canteens 13

OTHER AUTHORITIES

Elizabeth A. Weeks, The New Economic

Credentialing: Protecting Hospitals

from Competition by Medical Staff

Members, 36 J. Health L. 247.................4. 26

Vv

Cited Authorities

Page

Hugh Greeley, The Greeley Guide to Medical

Staff Credentialing (1999). ................ passim

Joint Commission, Comprehensive

Accreditation Manual for Hospitals 2015

Update 2 (effective Jan. 1,2016)............ passim

Joint Commission, FAQ “Using Data from Outside

Organizations to Accomplish the Ongoing

Professional Practice Evaluation/Low Volume

Practitioners” (last updated March 23, 2010) . .34-35

John D. Blum, Beyond the Bylaws:

Hospital-Physician Relationships,

Economics, and Conflicting Agendas, 53

Buff. L. Rev. 459, 469-471 (2005) ........ 12, 26, 27

John D. Blum, The Evolution of Physician

Credentialing into Managed Care Selective

Contracting, 22 Am. J.L. & Med. 173 (1996) ...... 12

Robin Locke Nagele, et al., Economic

Credentialing (2004) ...............005. 25, 26, 27

Senate Comm. on Health & Human Servs., Bill

Analysis, Tex. H.B. 2, 83d Leg., 2d C.S. 1

SORTER A er erate et i ee 2 Aaa a erp eae 9

United States Conference of Catholic Bishops,

Ethical and Religious Directives for Catholic

Health Care Services (5th ed. 2009) ............. 29

l

Nancy Auer, Jeffrey Borkan, Jonathan Burroughs,

Carol Cairns, William Cors, David Dodge, Hugh Greeley,

Seth Guterman, Kathryn Meyer, Vicki Noble, Linda

Riggs, Todd Sagin, Vicki Searcy, Mark Smith, Michael

Stauder, Richard Thompson, Susan Toth, Gregory

Volturo, and Abigail Winkel (“Amicz” or “Medical Staff

Professionals”) submit this brief in support of Petitioners

Whole Woman’s Health; Austin Women’s Health Center;

Killeen Women’s Health Center; Nova Health Systems

D/B/A Reproductive Services; Sherwood C. Lynn, Jr.,

M.D.; Pamela J. Richter, D.O.; and Lendol L. Davis, M.D.

INTEREST OF AMICI CURIAE!

Amici curiae are healthcare practitioners, professors,

managers, and consultants. They teach and practice at

some of the country’s top medical schools and hospitals,

they serve on credentialing committees, and they have

acted as hospital trustees and chief medical officers.

Amici submit this brief to provide the Court with a correct

understanding of how admitting privileges are granted

and why they present a significant obstacle to the practice

of abortion providers. Specifically, laws requiring local

admitting privileges impose requirements on outpatient

abortion providers that, by the very nature of their

practice, they are unable to meet.

1. Pursuant to Sup. Cr. R. 37.3(a), Amici certify that both

parties have consented to the filing of this amicus brief. Pursuant to

Sup. Cr. R. 37.6, Amici certify that no counsel for any party authored

this brief in whole or in part, no party or party’s counsel made a

monetary contribution to fund its preparation or submission, and

no person other than Amici or their counsel made such a monetary

contribution.

2

Amici are health care professionals with varied and

substantial experience with the process of credentialing

and privileging of physicians:

Nancy J. Auer, M.D., is a retired emergency physician

who served as Director of Emergency Services, Chief

of Medical Staff, Vice President of Medical Affairs

(VPMA), and Chief Medical Officer (CMO) for Swedish

Health Systems, Seattle, Washington. In her role as Chief

of Medical Staff, VPMA and CMO, Dr. Auer oversaw

medica] staff credentialing. Dr. Auer is Immediate Past

Chair of the Board of Trustees of Swedish and serves

on the Medical Affairs Committee of the Board, which

oversees credentialing of the medical staffs of Swedish’s

five hospitals.

Jeffrey Borkan, M.D., Ph.D., joined the Alpert Medical

School of Brown University in 2001 as Chair of the

Department of Family Medicine. He is the past President

of the Association of Departments of Family Medicine and

past-Chair of the Council of Academic Family Medicine.

Dr. Borkan has 14 years of expertise with credentialing

at Memorial Hospital of Rhode Island.

Jonathan Burroughs, M.D., M.B.A., FACHE, FAAPL,

is President and CEO of The Burroughs Healthcare

Consulting Network, Inc. and provides “best practice”

solutions to healthcare organizations in the areas of

governance, credentialing, privileging, peer review and

performance improvement/patient safety, and physician

performance. Dr. Burroughs previously served as

president of the New Hampshire chapter of the American

College of Emergency Physicians, an emergency

department medical director, and Chair of the Medical

3

Executive Committee and a member of the Board of

Trustees of Memorial Hospital in North Conway, New

Hampshire.

Carol Cairns, CPMSM, CPCS, is a medical service

manager who coordinated and directed medical staff

services for Presence Saint Joseph Medical Center and

Silver Cross Hospital in Illinois, serving on the Bylaws and

Credentialing Committee. In 1996, Ms. Cairns founded

PRO-CON, a consulting firm specializing in credentialing,

privileging, medical staff organization operations, and

survey preparation. Ms. Cairns has written all six editions

of Verify and Comply: A Quick Reference Guide to

Credentialing Standards, the third and fifth editions of

Core Privileges: A Practical Approach to Development

and Implementation, and The Medical Staff's Guide to

Overcoming Competence Assessment Challenges.

Dr. William Cors, M.D., MMM, FACPE, is an experienced

physician executive with 15 years of clinical practice and

20 years of executive hospital/health system management.

He currently serves as Chief Medical Officer for Pocono

Health System in Pennsylvania. His primary areas of

expertise include strategic alignment of medical staff

and hospital leadership and governance; credentialing,

privileging and peer review; and improvement of quality

of care and patient safety. Dr. Cors served on the Board of

Directors of the American College of Physician Executives

from April 2007 to March 2010.

David Dodge is the founder, former president and CEO

of PHT Services, Ltd., a South Carolina-based risk

management services organization serving the state’s

not-for-profit hospitals and health care systems. In

4

this role, Mr. Dodge oversaw individual assessments of

hospital credentialing programs and directly supervised

the credentialing of physicians associated with the

organization’s workers’ compense*ion program.

Hugh Greeley began his health care career in 1973 while

working with the National Blue Cross Association and then

with the Joint Commission on Accreditation of Hospitals in

Chicago, Illinois. Since that time Mr. Greeley has worked

with medical societies, hospital associations, universities

and foreign governments, and is widely regarded as

an expert in medical staff administration, hospital

governance, credentialing, performance improvement,

accreditation, antitrust and corporate negligence. Mr.

Greeley is also on the faculty of the Governance Institute,

La Jolla, California, and a former member of The Bureau

of the Healthcare Facilities Accreditation Program,

Chicago, Illinois.

Seth Guterman, M.D., FACEP, is an emergency physician

who currently serves as President of Emergency Care

Physicians Services, President at People’s Choice

Hospital in Chicago, President of Empower Systems,

and Department Chairman and Physician practicing

Emergency Medicine in Blue Island, Illinois. He is board

certified in emergency medicine, and he has published and

lectured on emergency medicine and accreditation issues

in the emergency department.

Kathryn Meyer, J.D., served as in-house counsel for

several New York City hospitals from 1975 to 2011, and

for eight years as Executive Vice President and General

Counsel of Continuum Health Partners. As counsel, Ms.

Meyer advised hospitals’ credentials committees and

5

medical staff regarding handling of physician applications,

and drafted medical staff bylaws. Ms. Meyer also served

on the Board of Directors of the American Academy of

Hospital Attorneys, chaired the Association of the Bar

of the City of New York’s Committee on Health Law,

and authored a chapter on medical staff credentialing

for Health Care Law: A Practical Guide published by

Matthew Bender.

Vicki Noble, M.D., is a physician in the Department

of Emergency Medicine and Director of Emergency

Ultrasound at Massachusetts General Hospital and is an

Associate Professor at Harvard Medical School. Dr. Noble

is responsible for point of care ultrasound privileging for

the hospital.

Linda Riggs, CPMSM, has more than 20 years of

progressive responsibility for hospital medical staff

services, particularly managing physician credentialing,

ensuring compliance with regulatory requirements, and

coordinating medical staff activities with administration,

quality and health information management. She is

Director of Medical Staff Services at Eisenhower

Medical Center in Rancho Mirage, California, where she

oversees medical staff services, including credentialing,

medical staff meetings, bylaws, and compliance with

accreditation requirements for a 476-bed hospital with

nearly 500 staff physicians. Ms. Riggs previously served

as Director of Medical Staff Services at Desert Regional

Medical Center in Palm Springs and at John. F. Kennedy

Memorial Hospital in Indio, California, where she oversaw

credentialing procedures.

6

Todd Sagin, M.D., J.D., is a physician executive

recognized nationally for his work with medical staffs on

issues including bylaws, medical staff strategic planning,

and credentialing challenges. He has served on advisory

panels to hospital accreditation organizations such as the

Joint Commission, including a special panel established

to advise on the organization’s credentialing standards.

Dr. Sagin is the former VP and Chief Medical Officer of

Temple University Health System and currently serves

as the medical director of the Pennsylvania Medical

Society Foundation’s LifeGuard Program, which evaluates

physician competency on behalf of state medical boards.

Vicki L. Searcy is Vice President, Consulting Services

at Morrisey Associates in Chicago, Illinois, where she

provides healthcare consulting services specializing in

practitioner competency management, credentialing,

privileging, quality and peer review as well as management

issues related to medical staff organizations. Previously,

Ms. Searcy served as President of Searcy Resource

Group, LLC, and as a partner with BDO Seidman,

LLP, leading its national healthcare accreditation and

compliance consulting practice. For over ten years,

Ms. Searcy was a surveyor for the National Committee

on Quality Assurance for its Credentials Verification

Organization (CVO) certification program. She is a

past Chair of the Certification Council of the National

Association of Medical Staff Services (NAMSS) as well

as a past President of NAMSS.

Mark Smith, M.D., M.B.A., FACS, is a consultant with

HG Healthcare Consultants with expertise in peer review,

ongoing and focused professional practice evaluation,

management of deficient practitioner performance,

7

criteria-based privileging, low-volume practitioners, ED

call and external focused review. Dr. Smith has 25 years

of clinical practice experience, including as president

of the medical staff, chief of surgery, chairman of peer

review committee, and medical director of cardiac surgery

at Desert Regional Medical Center in Palm Springs,

California.

Michael Stauder, M.D., FACC, is Chair of the Department

of Internal Medicine at Heywood Hospital, Gardner,

Massachusetts. Dr. Stauder oversees and coordinates the

credentialing and clinical activities of general internists,

internal medicine subspecialists, and hospitalists, and is

responsible for ongoing evaluation of department members

through Focused Professional Practice Evaluations

(FPPE) and Ongoing Professional Practice Evaluations

(OPPE). Dr. Stauder also is a member of the hospital’s

Medical Executive Committee, which evaluates and

approves medical staff appointments, reappointments,

dismissals, and awarding of clinical privileges.

Richard E. Thompson, M.D., formerly was a practicing

pediatrician, a pioneer neonatologist, Chief Resident at

Denver Children’s Hospital, VP of the Illinois Hospital

Association, and a Joint Commission staff member. At

the Illinois Hospital Association, he wrote one of the

country’s first credentialing manuals in 1977, Hospital

Medical Staff Membership and Delineation of Clinical

Privileges: A Practical Guidebook for the Medical Staff,

Administration, and Trustees. Dr. Thompson has over

20 years of experience in areas related to the physician-

hospital interface, including credentialing and medical

staff bylaws. He formerly served as the American College

of Physician Executives’ representative on the Joint

8

Commission’s Professional and Technical Advisory Task

Force.

Susan I. Toth M.D., is a general surgeon at Meriter-

Unity Point Health in Madison, Wisconsin. She is the

Chair of Surgery Peer Review, Past President of the

Meriter Hospital Medical Staff, and was a Meriter Medical

Staff Officer for eight years, during which she reviewed

credentialing and privileging for active medical staff.

Gregory Volturo, M.D., is Chairman of the Department of

Emergency Medicine at UMass Memorial Medical Center

and Professor of Medicine and Emergency Medicine at

the University of Massachusetts Medical School (UMMS),

where he is responsible for credentialing of emergency

physicians for the University of Massachusetts Health

System. Dr. Volturo is President of the Association of

Academic Chairs in Emergency Medicine and Past

President of the Massachusetts Chapter of the American

College of Emergency Physicians and has over 30 years

of experience managing emergency physicians and other

physician groups.

Abigail Winkel, M.D., is an Assistant Professor, Vice

Chair for Education and Residency Program director

in the department of Obstetrics and Gynecology at the

New York University School of Medicine. Dr. Winkel

oversees credentialing for physicians in the residency and

fellowship programs, and reviews privilege request forms

for physicians trained at New York University Langone

Medical Center.

9

SUMMARY OF ARGUMENT

In 2013, the State of Texas passed H.B. 2, a law that

requires that a physician “performing or inducing an

abortion . .. must, on the date the abortion is performed

or induced, have active admitting privileges at a hospital

that: (A) is located not further than 30 miles from the

location at which the abortion is performed or induced;

and (B) provides obstetrical or gynecological health care

services” (the “admitting privileges requirement”). See

TEX. HEALTH & SAFETY CODE ANN. § 171.0031(a)

(1) and (b) (West Supp. 2014) (“H.B. 2”). The Texas

Legislature’s stated purpose for enacting the admitting

privileges requirement was to raise the standard and

quality of care for women seeking abortions and to protect

the health and welfare of women seeking abortions. See

Senate Comm. on Health & Human Servs., Bill Analysis,

Tex. H.B. 2, 83d Leg., 2d C.S. 1 (2013).

Despite its stated purpose, the requirement will make

it impossible for qualified physicians in Texas to provide

abortion services in most cases. Reserving for others

the important question of whether this law is necessary

to protect the health and welfare of women, Amici will

explain how this superficially simple requirement bars

qualified physicians from the practice of medicine in

outpatient centers where abortion services are provided.

Admitting privileges are not a simple, straightforward

evaluation of a physician’s competence. Instead, a hospital’s

decision to grant admitting privileges is the last step in

a long process defined by hospital bylaws that evaluates

physicians based on several criteria, primarily related to

the hospital’s interest in the care of hospital inpatients. At

10

each stage of this process, the hospital has the discretion

to deny privileges based on a host of factors irrelevant to

outpatient abortion providers.

In order to secure admitting privileges, a physician

first must be recommended and approved for membership

on the hospital’s medical staff (“credentialing”). Second,

the physician must be granted authority to perform

specific procedures in the hospital (“privileging”). Both

the credentialing and privileging processes require

physicians to meet certain pre-qualification criteria

before the hospital will even provide the physician with an

application for medical staff membership. Most outpatient

providers do not ever have the opportunity to apply for

credentials and privileges because they are barred at one

of the pre-qualification stages.

For example, hospitals may refuse to consider an

application because a physician has an economic conflict

of interest with the hospital, does not live nearby the

hospital, or does not practice within the hospital’s mission.

Hospitals also deny privileges when a physician cannot

demonstrate recent evidence of clinical performance in an

inpatient setting. Indeed, there is an inverse relationship

between an abortion provider’s expertise and her ability

to obtain admitting privileges: the more she focuses on

outpatient abortion procedures, the less experience she

is likely to have with inpatient gynecological procedures

and the less likely she is to qualify for inpatient admitting

privileges.

As the United States Court of Appeals for the Seventh

Circuit held in evaluating the constitutionality of a similar

admitting privilege requirement: “[hJospitals are entitled

to demand proof that doctors seeking to work at the

11

hospital be able to perform the procedures they want to

perform there. But, to condition the grant of admitting

privileges on being qualified to perform procedures

that [ }] abortion doctors never perform is to bar them

from performing abortions.” Planned Parenthood of

Wisconsin, Inc. v. Schimel, 806 F.3d 908, 917 (7th Cir.

2015). The same is true in Texas. To provide abortions

under the Texas law, physicians must have admitting

privileges; however, to obtain admitting privileges, they

must satisfy criteria that their practice prevents them

from meeting.

Even if a physician is able to clear the hurdles

necessary to obtain medical staff membership and

admitting privileges, that physician still faces the

hospital’s ongoing review requirements. Once again, these

are requirements that outpatient providers likely cannot

meet because of the nature of their practice.

The admitting privileges requirement is an

insurmountable burden for most abortion providers.

The requirement already has dramatically reduced the

number of abortion providers in the State of Texas. Prior

to the enactment of H.B. 2, 41 licensed facilities provided

abortion services across Texas; two years later, only

19 of those facilities remain open. J.A. 1429-1434. The

direct effect of the admitting privileges requirement is

to bar qualified physicians from performing abortion

services, thereby hindering women’s access to qualified

abortion providers. This effect is in direct contravention

of the stated purpose of H.B. 2—to promote women’s

access to quality care and to promote the health of

women seeking abortions. For these reasons, the Texas

admitting privileges requirement should be struck down

as unconstitutional.

12

ARGUMENT

In its opinion below, the United States Court of

Appeals for the Fifth Circuit assumes that hospitals

grant credentials and privileges solely based on physician

qualifications and competence. Pet. App. 24a, 25a, 32a.

In reality, hospitals increasingly make credentialing and

privileging decisions based on an array of factors, many of

which are unrelated to outpatient physician competence—

including, inter alia, hospital admission rates, business

realities, and hospital mission.? These factors come into

play at each stage in the process and pose significant

obstacles to outpatient providers.

1. Pre-application requirements and the credentialing

process deny most outpatient providers the

opportunity to apply for admitting privileges.

To obtain hospital admitting privileges, a physician

must first apply for medical staff membership through

the credentialing process.’ If successful, the physician

must then apply for specific privileges necessary to admit

and treat patients in the hospital, such as ordering tests,

performing surgery, and prescribing medication.‘

2. See John D. Blum, The Evolution of Physician Credentialing

into Managed Care Selective Contracting, 22 Am. J.L. & Med.

173, 179-180 (1996); John D. Blum, Beyond the Bylaws: Hospital-

Physician Relationships, Economics, and Conflicting Agendas, 53

Buff. L. Rev. 459, 469-471 (2005) (Beyond the Bylaws).

3. See Appendix A for a chart illustrating the credentialing

process.

4. Usually, hospital entities conduct credentialing and

privileging contemporaneously. After admission to the medical

13

“Credentialing” is the process by which a hospital

evaluates a physician’s application to join the hospital’s

medical staff. Through the credentialing process, the

hospital “assess{es] and confirm[s] the qualifications of a

licensed or certified health care practitioner.” Tria] Ex.

P-065, at 6.

Although hospitals enjoy broad discretion in

determining the composition of their medical staff, they

utilize uniform standards. Most hospitals have adopted

the Joint Commission’s (“JC”) standards because a JC-

accredited hospital is deemed to meet the conditions

of Medicare participation and is thereby eligible to

participate in Medicaid and Medicare. See generally,

42 U.S.C. 1395bb; 42 C.F.R. 488.5. Hospitals gain (and

maintain) accreditation by demonstrating compliance

with JC standards, which are set forth in lengthy manuals

that include extensive standards for credentialing and

privileging.‘

A. Pre-Application and Threshold Requirements

The pre-application process begins with a physician

requesting the actual application. See, e.g., Trial Ex.

P-059 { 3.7.1. The request allows hospitals to ensure that

a physician meets its basic or threshold qualifications.

Hugh Greeley, The Greeley Guide to Medical Staff

staff, physicians seeking additional privileges only go through the

privileging process.

5. See, e.g., JC, Comprehensive Accreditation Manual for

Hospitals 2015 Update 2 (effective Jan. 1, 2016). Amici hereinafter

cite standards from this manual by number and “element of

performance” (“EP”), e.g., “MS.06.01.03, EP 3.”

14

Credentialing 18 (1999) (Credentialing Guide). Doctors

Hospital at Renaissance (“Doctors Hospital”), one of

eight hospitals located within 30 miles of Petitioner

Whole Woman’s Health’s clinic in McAllen (the “McAllen

clinic”), requires all requests to be forwarded to the

Medical Staff Office, Credentials Committee, Medical

Executive Committee, and Governing Body, and Doctors

Hospital will only release the application packet once the

Governing Body has approved the request. Trial Ex. P-057

"6.1. Similarly, East E] Paso Physician’s Medical Center

requires a formal written request for an application and

will only provide the application if the requesting physician

is “deemed eligible to apply.” Trial Ex. P-059 9 3.7.1.

One threshold criterion at many Texas hospitals is

the signature of a “designated alternate” physician. For

example, the eight hospitals located within 30 miles of the

McAllen clinic each require, as a condition of granting

admitting privileges, that an application be signed by a

“designated alternate” physician willing to attend to the

applicant’s patients when the applicant is unavailable. J.A.

392, 718. The designated alternate physician must already

have admitting privileges at the hospital. /bid.

If an application is not signed by a designated alternate

physician, it will not be considered, regardless of whether

the applicant meets the hospital’s other requirements. J.A.

392, 718. While seeking to provide abortion services at

the McAllen clinic, Sherwood C. Lynn, Jr., M.D., Medical

Director of Whole Woman’s Health in San Antonio, and

the three other physicians at the McAllen clinic reached

out to numerous physicians with hospital admitting

privileges in the McAllen area, but only one was willing

to serve as a designated alternate physician for the

15

physicians. J.A. 718-719, 393. Other physicians expressed

fear about retaliation from hospital administrators or

revocation of their privileges as the basis for declining to

serve as the “designated alternate” physician. Jbid. As a

result of such concerns, abortion providers often cannot

receive the support of a “designated alternate” physician,

regardless of their clinical competence, as required by

many hospitals’ application process. /bid.

This requirement had just such an effect for the

McAllen clinic physicians who, because they could locate

only one willing designated alternate, were limited to

submitting their applications to the one hospital where

that designated alternate had admitting privileges. J.A.

718-719, 393. Ultimately, that hospital denied Dr. Lynn and

the other physicians the opportunity to apply “based on the

recommendation of the hospital's Credentials Committee,”

although this denial “was not based on clinical competence

consideration.” J.A. 393-394, 604-605, 719-720.

Another common threshold criterion is that the

physician maintain a primary residence or office within a

certain distance from the hospital. For example, Doctors

Hospital requires that members of the medical staff reside

within a “reasonable distance” of the hospital, defined as

“a travel time to the Hospital not to exceed thirty (30)

minutes or from a location within Hidalgo County.” Trial

Ex. P-057 9 3.4.3.

Based on such threshold requirements, many

physicians never have the opportunity to apply for

staff membership, much less have their credentialing

applications considered. Accordingly, from the start,

many physicians will be prevented from offering abortion

services due to the admitting privileges requirement.

16

B. Credentialing Application

If a physician meets the threshold criteria, the hospital

will evaluate her application further. Once the hospital

receives a complete application, it verifies the application

materials with primary sources including specialty

boards, employers, schools, and training programs. The

hospital also searches the National Practitioner Data

Bank, performs background checks, see MS.06.01.05, EP

7; MS.06.01.03, Introduction and EP 6., and collects and

reviews letters of recommendation from the physician’s

peers. Trial Ex. P-059 9 3.7.3.10. These letters address

issues such as the applicant’s clinical competence,

personal character, and ability to work collaboratively

with others. See, e.g., Trial Ex. P-057 91 6.4.5(h); Trial Ex.

P-065, Credentials Manual 9 2.2-2(d). Failure to verify all

information exposes a hospital to liability for negligent

credentialing, so a hospital may not approve an application

if a third party fails to submit requested documentation.

After the hospital verifies the application, the

file typically goes through a series of individuals and

committees, each of which reviews it, gathers additional

information, and passes along a recommendation to the

next committee. During the review process, committee

members may decide to interview an applicant to obtain

additional information. If an applicant does not (or

cannot) answer questions or if the reviewing committee

determines it needs additional information, the application

may be declared incomplete. Credentialing Guide at

105; see also Trial Ex. P-057 9 6.4.1. A committee also

may consider confidential reviews of the applicant from

staff members or colleagues, which may be tainted by

“personal or economic bias.” Credentialing Guide at 105.

17

For example, a staff surgeon might present an unfavorable

review of an applicant if the surgeon had an anti-abortion

bias or thought the applicant might, if admitted to the

staff, compete with the surgeon for resources.

Typically, each committee in the review sequence can

make one of three final assessments of the application: (1)

recommend deferral; (2) give a favorable recommendation;

or (3) give a negative recommendation. See, e.g., Trial Ex.

P-057 1 6.6-6.8. If the final committee in the sequence, the

medical executive committee, recommends the application

be denied, the hospital will notify the applicant who may,

in some cases, be entitled to a hearing to appeal the denial.

Credentialing Guide at 106.

Following a positive recommendation from the medical

executive committee (or after a hearing if required or

requested), the recommendations for appointment and/or

clinical privileges are submitted to the hospital governing

board. The governing board—the corporate management

of the hospital—makes final decisions regarding

appointment, reappointment, and clinical privileges,

based upon review of the committee recommendation.

Credentialing Guide at 22; MS.06.01.07, EP 8. The board

may approve an appointment, reject it, or return the

application to the medical staff for further investigation.

If the board rejects the application, the applicant may have

another opportunity for a hearing or for a formal appeal

to the board to reconsider.

Each step in the credentialing process may take one

to two months. Overall, it may take upwards of six months

after the physician’s application is deemed complete for

the hospital to reach a final decision. During this lengthy

18

processing, a qualified physician will be barred from

providing abortion services. These processing times also

would complicate hiring decisions for clinics that must hire

abortion providers with admitting privileges.*

If a physician obtains staff membership, most

hospitals will require her to take “on call” shifts, serve

on committees, attend meetings, pay annual dues, and

otherwise contribute to the institution’s financial and

administrative health. Thus, staff appointment comes with

significant obligations that are burdensome for a physician

who primarily practices elsewhere. A hospital is unlikely

to credential or reappoint to the medical staff a physician

who cannot or does not fulfill these obligations, regardless

of clinical competence. See infra Part IV.

Il. Physicians who provide abortions in outpatient

clinics cannot fulfill hospital requirements for

admitting privileges because they do not have an

inpatient practice.

H.B. 2’s requirement that the physician obtain “active”

admitting privileges suggests that the physician must

have the ability to provide services to her patient beyond

simply admitting the patient to the hospital.

6. Atany point, the hospital may determine that an applicant

is ineligible and decline to process her application further. See,

e.g., Credentialing Guide at 34; Trial Ex. P-057 1 6.4. Because

a determination of “ineligibility” is not a denial based on

demonstrated incompetence or unprofessional conduct, it does

not trigger the applicant’s right to formal due process, including

a hearing or an appeal. Trial Ex. P-057 9 13.3.

19

Once a hospital appoints a physician to the medical

staff, the hospital then assesses her request for privileges.’

Credentialing Guide at 6-7. Clinical privileges are

granted to physicians so that they can, inter alta, “render

specific professional, diagnostic, therapeutic, medical,

dental or surgical services.” Trial Ex. P-064 at 2; see

also Credentialing Guide at 181. Admitting privileges

constitute one particular privilege, allowing a physician to

place a patient in the hospital under that physician’s care.

However, a physician is never granted just “admitting

privileges” because she must be authorized to provide

some specific type of clinical care to that patient upon the

patient’s admission. See generally MS.06.01.05.

As with the credentialing process, the privileging

process is set forth in medical staff bylaws and policies.

See MS.01.01.01, EP 14; MS.06.01.05, Introduction. Unlike

a grant of medical staff membership, privileging grants

“applicant-specific delineated privileges,” defining exactly

which procedures and clinical activities the physician is

permitted to perform in the hospital. This means hospitals

must verify that applicants have demonstrated current

competence in the procedures and activities for which they

seek privileges. MS.06.01.05, Introduction; Credentialing

Guide at 181.

A. Experience with Inpatient Treatment

More than “90 percent of all abortions performed in

the U.S. are performed in the outpatient setting.” J.A. 253.

In Texas, 96 percent of abortions performed in 2010, for

7. See Appendix B for a chart illustrating the privileging

process.

20

example, were performed in an outpatient setting. J.A.

263. While abortion providers easily could demonstrate

competency in the outpatient procedures they regularly

perform, they may be unable to demonstrate current

competence in all of the inpatient procedures that the

hospitals demand, which would prevent them from

obtaining privileges, including admitting privileges. As

Judge Posner concluded in the Seventh Circuit’s opinion,

the reason abortion providers could not obtain admitting

privileges “is that almost all of their practice consists

of performing abortions and they therefore lack recent

experience in performing inpatient medical procedures

for which hospitals would grant admitting privileges.”

Planned Parenthood of Wisconsin, 806 F.3d at 916.

Physicians applying for hospital admitting privileges

generally are required to demonstrate substantial recent

experience treating patients in inpatient settings. While

hospitals traditionally granted privileges procedure by

procedure, based on an individual physician’s experience

and expertise, most hospitals have responded to the

increasing complexity of privileging with a “core privileging

approach,” which essentially groups multiple privileges

for related procedures and activities into a single “core”

privilege. These broader sets of “core” privileges—for

example, in obstetrics, gynecology, or family medicine—

encompass the “clinical activities that any appropriately

trained physician [in that specialty] would be competent

to perform.” Credentialing Guide at 183. Foundation

Surgical Hospital of El Paso (“Foundation”), for example,

offers core privileges in family medicine, a set of privileges

that includes procedures such as suturing and repairing

lacerations, interpreting electrocardiograms, and treating

burns. Trial Ex. P-062. Thus, rather than tailoring

21

the privileges to be granted to the specific provider’s

experience, the hospital essentially requires each provider

to be able to demonstrate competence in a more extensive

list of skills and procedures. Core privileging erects

yet another obstacle for many outpatient providers who

rarely, if ever, treat patients in a hospital and may have

little recent practice in many of the core procedures not

applicable to their practice.

Hospitals also often require applicants to provide

clinical data, particularly data derived from inpatient

hospital care, to demonstrate their competence. See

MS.06.01.03, Introduction and Rationale; MS.06.01.05.

These hospitals will not even consider privilege requests

unless applicants provide “clinical data demonstrating the

number and type(s) of clinical activities .. . performed.”

Credentialing Guide at 181-82; see also MS.06.01.05, EP

10. Foundation’s application for core privileges in family

medicine requires that initial applicants be able to show

that they have provided inpatient care for at least 24

patients in the previous 12 months as either the attending

physician or senior resident. Trial Ex. P-062. Likewise,

at Rio Grande Regional Hospital, physicians seeking

privileges in obstetrics and gynecology must be able to

demonstrate the completion of at least 50 deliveries and

25 gynecological surgeries or successful completion of a

qualifying residency, fellowship, clinical fellowship, or

research. Trial Ex. P-076, OB/GYN Privileges request

form. For physicians who work primarily in outpatient

settings, and spend little if any time in hospitals, these

requirements are impossible to meet.

For example, over the last ten years, Nova Health

Systems d/b/a Reproductive Service’s clinic in El] Paso

22

(the “El Paso clinic”) performed over 17,000 abortion

procedures, and not a single patient was transferred to a

hospital for emergency treatment, much less admitted to

a hospital. J.A. 730. Similarly, the McAllen clinic provided

abortion services to over 14,000 patients during the ten

years it was in operation, and only two patients required

transfer to a hospital. J.A. 717. Given the nature of their

outpatient practices and the extraordinarily rare need

for inpatient care for their patients, abortion providers

generally will be unable to meet hospitals’ inpatient

clinical data requirements for admitting privileges.

Even if a hospital allows an abortion provider to

formally apply for privileges, the physician must meet

additional extensive criteria including licensure, training,

professional experience, and peer recommendations.

MS.06.01.05, Introduction, EP 2. Most significantly,

the physician must demonstrate appropriate training

and “recent direct or indirect experience” related to

the privileges requested.” Credentialing Guide at 183

(emphasis added). Providence Memorial Hospital, for

example, mandates that a decision to grant privileges

take into account the physician’s “performance of a

sufficient number of procedures to demonstrate and

maintain proficiency.” Trial Ex. P-075 at 9 9.1.3. While

abortion providers may perform sufficient outpatient

procedures to demonstrate their proficiency in those

particular procedures, they are unlikely to demonstrate

the requisite number of inpatient procedures required for

privileging given the outpatient nature of their practices.

Indeed, it is impossible for a physician who practices only

outpatient medicine to show that she has performed any

recent procedures on an inpatient basis; it is therefore

highly unlikely she will qualify for admitting privileges.

23

B. Specialty-Related Requirements

As with requests for medical staff membership,

hospitals regularly reject privileging requests on

threshold eligibility grounds without ever formally

considering the application. One type of eligibility

requirement is a requirement that physicians hold specific

board certifications to perform particular procedures,

thus barring physicians with other specialties from even

applying for the applicable privilege. For example, the

hospital may require board certification in obstetrics and

gynecology in order to be granted the privilege to perform

obstetrical or gynecological procedures, even though

many family physicians and surgeons have training that

makes them competent in these procedures. Similarly,

some hospitals require a physician to have completed a

residency in the particular specialty for which she seeks

clinical privileges. See, e.g., Trial Ex. P-059 at 9 3.1.3.

Pamela Richter, D.O., who served as Medical Director

for the E] Paso clinic for over 20 years, sought but was

denied admitting privileges at Foundation. J.A. 726, 730.

Dr. Richter is a board-eligible family medicine physician

licensed to practice medicine in Texas. In addition to

serving as Medical Director and the only physician

performing abortion services at the El Paso clinic, Dr.

Richter also provides gynecological and general medical

care as a staff physician at a state supported and operated

residential facility in E] Paso. J.A. 727-728, 731.

Although Dr. Richter was board-certified in family

medicine from 1990 to 2009, she did not seek recertification

after 2009 because board certification was unnecessary

for her practice. J.A. 727. As a result, Dr. Richter was

24

determined by Foundation not to meet the threshold

criteria and her application for admitting privileges at

Foundation was denied because she did not “meet the

requirement [sic] for successfully completing a residency

in the field of specialty for which clinical privileges are

required.” J.A. 729-730. The decision ignored Dr. Richter’s

substantial experience practicing gynecology and her

previous board certification. /bid.

In fact, Foundation’s requirements for family

medicine privileges did not require completion of a

family medicine residency if the physician demonstrated

“active participation in the examination process leading

to [board] certification in family medicine... .” Trial Ex.

P-062. As such, Dr. Richter did not actually have to meet

the family medicine residency requirements because she

ws registered to take the next available family medicine

board examination. J.A. 729-30. This application of

Foundation’s requirements to Dr. Richter’s application

illustrates the subjective nature of privileging and the

risk that hospitals will use compliance with their bylaws

as an excuse for denying privileges to qualified providers.

Dr. Richter also sought admitting privileges at Las

Palmas del Sol (“Las Palmas”) and University Medical

Center (“UMC”). J.A. 729. She was informed that her

application would not be considered unless she provided

documentation of current board-certification. bid.

25

IIL The discretionary nature of the credentialing and

privileging process creates an opportunity to deny

abortion providers admitting privileges on grounds

other than clinical competence.

Historically, hospital boards, relying on the

recommendations made by the hospital’s medical staff,

mostly “rubber-stamped” physician applications for

hospital privileges. However, “the board today plays a

constant, active role in . . . [the] credentialing process,”

Credentialing Guide at 22-23, and frequently retains

the discretionary power to make privileging decisions on

bases unrelated to physician competence. Hospital bylaws

intended to protect the economic well-being or mission of

the hospital may be used by reviewing committees to deny

abortion providers admitting privileges. These provisions,

coupled with the general ambiguity and subjective

nature of the credentialing and privileging processes,

thus provide hospitals an easy pretext for withholding

privileges from abortion providers.

A. Denial Based on Economic Impact

One such pretext for rejecting applicants is the practice

of economic credentialing, which reflects the significant

impact credentialing decisions have on hospital finances.

Robin Locke Nagele, et al., Economic Credentialing

ix (2004). Traditional sources of hospital revenue have

been threatened by the increase in ambulatory surgical

centers, “specialty” hospitals, and physicians offering in

their own offices or facilities expensive diagnostic tests

(like endoscopies or MRIs). Hospitals must work to keep

“medical staffs committed to practicing in the inpatient

setting while curbing the revenue drain associated with

their outpatient entrepreneurial activities.” Jd. at xiii.

26

In response to this “revenue drain,” some hospital

boards have begun to “assess|[] (as a qualifying factor) the

financial impact of accepting a physician onto a hospital’s

medical staff.” Jd. at xviii; see also Beyond the Bylaws

at 470-474; Elizabeth A. Weeks, The New Economic

Credentialing: Protecting Hospitals from Competition

by Medical Staff Members, 36 J. Health L. 247, 252 (New

Econ. Credentialing). Economic credentialing takes many

forms, including “medical staff development plans,” which

specify “optimal formula{s]” for staff numbers after an

analysis of market conditions, infrastructure, resources,

usage, staff profiles, and referral patterns. Economic

Credentialing at 31-34; see also, e.g., Trial Exs. P-065

{ 2.1.2, P-057 1 10.4. These plans inform staff recruitment,

including whether or not particular departments will

have a “closed staff,” whereby the hospital decides not to

accept additional applications for privileges in a particular

department. Beyond the Bylaws at 476-477.

Some hospitals also ask physicians for “individual

practice plans,” which detail the applicant’s specialization,

need foi resources, anticipated time at the hospital,

expectations for admissions and referrals, financial

relationships with rival entities, and willingness to support

the hospital mission (for example, treating uninsured

patients). Economic Credentialing at 47; Trial Ex. P-057

§ 10.4. If the board decides that the physician’s plan

is inconsistent with hospital goals, the plan alone may

disqualify the applicant.

Exclusive contracts are another common form of

economic credentialing. Under these contracts, hospitals

agree that a single private medical group will be the

exclusive provider of particular medical services at the

27

hospital. Economic Credentialing at 51; Beyond the

Bylaws at 475-476. Only physicians who are members of

that practice group may apply for privileges to provide

the services subject to the exclusive contract. Similarly,

if a member physician leaves the group, she usually will

lose her privileges and staff membership.

More contentious forms of economic credentialing

include conflict-of-interest policies that restrict a

physician's work with competitors. For example, a general

hospital may deny membership to a physician who also

practices at a specialty hospital in the same area because

the physician could create a “dire situation” by cherry-

picking the most profitable patients for treatment at the

specialty hospital and treating only low- or no-pay patients

at the general hospital. Economic Credentialing at xiii;

Beyond the Bylaws at 484. Courts continue to wrestle with

the legality of such conflict-of-interest policies. Economic

Credentialing at 89-109; New Econ. Credentialing at

253-284; Beyond the Bylaws at 482-486. The fact that

hospitals use these strategies—despite the potential

liability—underscores how important fiscal considerations

are in hospital credentialing.

Many Texas hospitals practice one or another form of

economic credentialing. For example, South Texas Health

System may decline to provide or review applications

for staff membership or particular privileges based on

whether they are (1) “within the scope of services, capacity,

capabilities, and business plan of the hospital”; (2) subject

to an exclusive contract; or (3) within the requirements or

limitations in the Medical Staff development plan, which is

formulated based on patient care needs in the population

served by the hospital. See, e.g., Trial Exs. P-065 9 2.1.2,

28

P-078, Art. IV, § 2(A). Doctors Hospital will consider

the hospital’s need for certain services before granting

privileges, Trial Ex. P-057 9 10.4, and several hospitals,

including East El] Paso Physicians’ Medical Center, Rio

Grande Regional] Hospital, will consider the hospital’s

ability to provide support and facilities for the services

for which the physician seeks privileges. Trial Exs. P-059

7 5.2.4, P-076 % 3.2.

Hospitals that practice economic credentialing may

have no reason to grant staff membership or admitting

privileges to outpatient physicians providing abortion

services. These physicians likely will not admit any

patients to the hospitals because the rate of complications

is extraordinarily low for abortions. See Planned

Parenthood of Wisconsin, 806 F.3d at 912-13. Further,

outpatient providers who likely will spend little time at

the hospital are less likely to help with committee work,

backup coverage, or resident training. An outpatient

abortion provider offers no clear benefit to a hospital;

instead, she may pose significant expense in the patients

referred, time and resources of credentialing, and stigma

of association with an abortion provider.

B. Denial Based on Hospital Mission

Hospitals also may deny or refuse to consider an

application if it appears that the physician cannot support

the hospital’s “mission.” For example, an academic

medical center may require staff members to teach or do

research. South Texas Health System requires applicants

to demonstrate that they will “contribute to meeting the

mission of STHS.” Trial Ex. P-065 at 9 2.1.1.

29

Other hospitals, particularly those with religious

affiliations, require physicians to comply with religious

and ethical directives that counsel against “scandal

in any association with abortion providers.” See, e.g.,

United States Conference of Catholic Bishops, Ethical

and Religious Directives for Catholic Health Care

Services 26 (5th ed. 2009). Although the so-called “Church

Amendments,” enacted by Congress in the 1970s, prohibit

these hospitals from discriminating against physicians

because of their involvement with abortion procedures,

42 U.S.C. 300a-7(c)(1), the ease with which hospitals

ean simply decline to consider applications on other

permissible grounds strongly suggests that religiously

affiliated hospitals will deny admitting privileges to

abortion providers.

Secular hospitals also may be unwilling to subject

themselves to the negative attention that sometimes

follows abortion practitioners, even though Texas law

mandates that “[a] hospital or health care facility may not

discriminate against a physician, nurse, staff member,

or employee because of the person’s willingness to

participate in an abortion procedure at another facility.”

Tex. Occ. Code Ann. § 103.002(b) (1999). For example,

although Foundation claimed it was discontinuing

Dr. Richter’s temporary privileges and denying her

application for privileges because of its family medicine

residency requirements, Foundation took these actions

only after it became aware that Dr. Richter provided

abortion services. Trial Ex. P-046; J.A. 729-730. In fact,

the hospital’s C.E.0. candidly told a Texas Department of

State Health Services investigator that the hospital had

combed through its own bylaws for a reason to deny Dr.

Richter’s application once it learned about her practice.

30

Trial Ex. P-046 (“He stated the facility was not aware that

Dr. Richter provided abortion services. He stated after

finding out she provided these services that the facility

looked at the bylaws and application to see if there was a

reason to deny privileges to Dr. Richter.”); J.A. 730.

Similarly, in another Texas case involving attempts

by abortion providers to obtain admitting privileges,

Robinson v. UGHS Dallas Hospitals, Inc., No. DC-14-

04101 (Tex. Dist. Ct., consent order approving settlement,

June 9, 2014),* the bylaws of University General Health

System Dallas Hospitals, Inc. (“UGHD”) included a

provision on “disruptive behavior,” defined as, inter

alia, “[pjersonal conduct . . . that adversely impacts, or

potentially may impact, the operation of the Hospital

.... Pet., Robinson, § 37 (filed April 17, 2014). Two

gynecologists with over three decades of experience in

reproductive health and abortion services initially were

granted admitting privileges at UGHD primarily related

to their gynecological practices and in accordance with

the requirements of H.B. 2. Jd. 111 4-5. After obtaining

privileges, the physicians continued performing abortions

at facilities unrelated to UGHD. The hospital reversed its

privileging decisions three months later, stating:

Your privileges have been revoked at [UGHD]

by the Medical Executive Committee . . . based

on the following: . . . It has come to our attention

that you perform “voluntary interruption of

8. Available through Dallas County & District Courts Case

Information, at courts.dallascounty.org (follow “Civil District

Case Information” hyperlink; then search by Case Number “DC-

14-04101”) (last visited Dec. 30, 2015).

31

pregnancies” as a regular part of your medical

practice. .. UGHD has determined that your

practice of performing these procedures is

disruptive to the business and reputation of

UGHD and, therefore, violates UGHD’s bylaws

as “disruptive behavior” . . . because, among

other things, the practice creates significant

exposure and damages to UGHD’s reputation

within the community. UGHD cannot afford to

defend your privileges in light of this practice.

Pet., Robinson, Ex. A.

In response, the physicians sought, inter alia,

injunctive relief and immediate reinstatement of

their admitting privileges. Pet., Robinson, at 19. The

court issued a temporary restraining order requiring

UGHD to reinstate the physicians’ admitting privileges

because the revocation likely violated Texas’ unlawful

discrimination law; it later issued a permanent injunction

following a settlement among the parties. Nonetheless,

the physicians’ experience illustrates how hospitals may

employ discretionary bylaw provisions to deny admitting

privileges to abortion providers, thus barring them from

performing abortions under H.B. 2.

IV. An outpatient provider who is granted admitting

privileges likely will lose them due to ongoing

review requirements.

If a hospital ultimately does grant a physician

staff admitting privileges, it initially will review the

exercise of the privilege at the hospital to confirm the

competency of the physician. This initia] review of clinical

32

competence in a newly granted privilege is known as

“Focused Professional Practice Evaluation,” or FPPE.

See generally MS.08.01.01; Introductions to MS.06.01.01,

MS.06.01.05. In addition to review of medical records and

discussions with other staff members about the physician’s

performance, F PPE usually includes direct observation

of the physician’s medical techniques, or “proctoring.”

See, e.g., Trial Ex. P-075 9 8.6. The physician usually

is required to conduct a required number of proctored

procedures in order to maintain privileges.

At many hospitals, including those in Texas, a

physician will be deemed to have voluntarily resigned her

privileges if she fails to complete the required number of

proctored cases. Trial Exs. P-075 9 8.6, P-076 1% 3.14.1,

3.14.4.1. Thus, even if a primarily outpatient abortion

provider were able to obtain admitting privileges, she

would have a credible fear of losing them in the near

future as she would have little occasion or need to treat a

patient at the hospital. As discussed swpra, during the last

ten years, the McAllen clinic only required transfer to a

hospital for two patients (out of 14,000 abortions), J.A. 717,

while the E] Paso clinic required no transfers, J.A. 730.

These numbers demonstrate the practical impossibility of

maintaining admitting privileges as the physicians would

be unable to complete the requisite number of proctored

cases.

Even if a practitioner successfully completes the FPPE

process and graduates to more permanent status at the

hospital, she likely would be subject to ongoing monitoring

requirements. These relatively new requirements expand

“the credentialing and privileging process” from “a

procedural, cyclical process in which practitioners are

33

evaluated when privileges are initially granted, and

every two years thereafter,” to an “Ongoing Professional

Practice Evaluation” (“OPPE”), which re-evaluates the

physician on a more or less continual basis. MS.06.01.01,

Introduction; see generally MS.08.01.03, When a physician

seeks to renew her privileges, the hospital uses OPPE

data as evidence of the physician’s current competence

in the procedures for which she has privileges. Without

sufficient OPPE data, a physician will be unable to renew

her privileges. At Rio Grande Regional Hospital, for

example, physicians must have sufficient patient contact

to “enable the assessment of current clinical judgment

and competence for the privileges requested.” Trial Ex.

P-076 9 3.10.5. An OPPE for a physician with little or no

hospital practice essentially would be impossible.

Furthermore, “[hjospitals generally require that a

doctor, to maintain his admitting privileges, be responsible

for admitting a specified minimum number of patients

annually.” Planned Parenthood of Wisconsin, 806 F.3d

at 917. In some cases, these admissions al] must occur at

the privileging hospital. Doctors Hospital, for example,

generally only allows physicians on active staff to admit

patients, but also requires that such physicians use the

hospital for “at least 24 major procedures annually,” with

limited exceptions. Trial Ex. P-057 99 3.5.15, 4.1, 4.2.

However, “[bJecause of the very low rate of complications

from abortions that require hospitalization, the required

quotas may be difficult to meet” for outpatient abortion

providers. Planned Parenthood of Wisconsin, 806 F.3d

at 917. Again, the McAllen and El Paso clinics performed

more than 31,000 abortions but collectively required

transfer—not necessarily even admission—of only two

patients over the past 10 years. J.A. 717, 730. Because

34

of their infrequent need to treat patients in the hospital,

abortion physicians who manage to secure admitting

privileges may well lose them during the re-privileging

process. See, e.g., Trial Ex. P-076 9 3.10.5.

This requirement would impose a further barrier

on the ability of abortion providers to maintain clinical

privileges because of the nature of abortion complications.

In the extremely rare case of an abortion-related

complication, the patient frequently already has been

discharged from the clinic and returned home (sometimes

over 150 to 200 miles from the clinic). J.A. 382-383,

278. The complications that follow a medical abortion

likely never would occur while the patient is at the clinic

because the abortifacient medications take time to exert

their effects. Jbid. In the unusual instance where a

patient experienced heavy bleeding requiring additional

treatment, this symptom likely would occur one to three

weeks following the abortion. /bid. As a result, the

patient may or may not be in the vicinity of the clinic,

and the patient may or may not elect to seek treatment at

the hospital where the outpatient abortion ‘provider has

admitting privileges. /bid. Given the sporadic nature of

any required follow-up care, a physician’s ability to include

this as clinical treatment data at the privileging hospital

is even less likely.

The JC acknowledges that the OPPE practice does

“not fully address the issue of the low or no volume

practitioner” in that such physicians will have very limited

data to review.’ At some hospitals, such as Rio Grande

9. JC FAQ “Using Data from Outside Organizations to

Accomplish the Ongoing Professional Practice Evaluation/Low

35

Regional Hospital, physicians who have insufficient patient

volume to serve on the hospital’s active staff may obtain

“Refer and Follow” or “Refer Only” privileges; they are

not permitted to obtain admitting privileges. Trial Ex.

P-076, Qualifications for Privileges in Obstetrics and

Gynecology at 1. These limited privileges would not meet

the requirements of H.B. 2. While some other hospitals

offer courtesy privileges or staff membership for low

volume providers—allowing them to exercise clinical

privileges including admitting privileges—courtesy

privileges generally only are available to physicians with

active privileges at another hospital. At Mission Regional

Medical Center, for instance, physicians may qualify for

courtesy staff membership with eleven or fewer patient

encounters, but to do so physicians must be on active

staff at another hospital. Trial Ex. P-064 9 4.3. Given

the difficulty of obtaining admitting privileges at just a

single hospital, this alternative option would be virtually

impossible to pursue or fulfill. Consequently, this is yet

another obstacle to Texas-based abortion providers

obtaining admitting privileges.

Requirements for minimum levels of inpatient patient

encounters have been a concern for some of the petitioners

in this case. For instance, Marilyn Eldridge, President

of Reproductive Services and the E] Paso clinic, testified

that even if Dr. Richter had obtained admitting privileges,

Ms. Eldridge worried that Dr. Richter would not be able

to maintain the privileges “because she [would] not be

able to admit the requisite number of patients per year

Volume Practitioners” (last updated March 23, 2010), http://www.

jointcommission.org/standards _information/jcfaqdetails.aspx?St

andardsFAQId=311&StandardsFAQChapterId=74.

36

to the hospital.” J.A. 730. Both the McAllen and E] Paso

clinics serve as examples of how the admitting privileges

requirement will bar qualified physicians from performing

abortion services for reasons completely unrelated to their

medical competence.

CONCLUSION

To obtain active admitting privileges at a hospital,

as required by H.B. 2, a physician must navigate a

labyrinthine credentialing and privileging process that

evaluates physicians based on many factors unrelated

to clinical competence. The intricate and subjective

process leaves abortion providers—generally outpatient

physicians—in a “Catch-22.” The more experienced the

physician is in outpatient abortion services, the less likely

she will be able to demonstrate the inpatient experience

that is required to obtain admitting privileges. H.B. 2

imposes a baseless, costly exercise upon hospitals and

physicians that fails to assure quality care for women.

If upheld, the admitting privileges requirement will

unnecessarily burden hospitals and will bar many

qualified physicians from providing abortions, thereby

limiting access to those services.

For the foregoing reasons, the judgment of the Fifth

Circuit should be reversed.

December 30, 2015

37

Respectfully submitted,

Puiuip H. Lesowrtz

Counsel of Record

Erin M. Durry

KATHARYN I. CurRISTIAN MCGEE

ALISON TAYLOR ROSENBLUM

ERICA FRUITERMAN

DuANE Morris LLP

30 South 17th Street

Philadelphia, Pennsylvania 19103

(215) 979-1000

Counsel for Amici Curiae

APPENDIX

la

APPENDIX A — PROCESS FOR OBTAINING

STAFF MEMBERSHIP

FOLDOUT

Process for Obtaining Staff Membership

Pre-Application criteria met?

Yes

ee ee ee - —— ow ow er

Threshold criteria met?

ie i al > ewer —_ —~<— en eed

Definitive No Application Complete?

annot be

alte 3 te

orpileted

Primary Source Verified?

a s'D, > . vv

ye re r _—Trwre = aor Tae |

Medica! Staff Committee Recommendations?

Ma ¥ MCQUESI

rmeadlil

Favorabie

No

(waiver required)

Denied

2a

APPENDIX B — PROCESS FOR OBTAINING

PRIVILEGES

FOLDOUT

Process for Obtaining Privileges