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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A60

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A60. Public record. Not legal advice.