It is the policy of the Board under M.G.L. c. 111, § 203(e) to monitor the quality of medical care and advice delivered by licensees in the nursing home setting and to require that certain information related to potential deficiencies in such care be reported periodically to the Board. Accordingly, notwithstanding anything in 243 CMR 3.00 to the contrary the following (and any others specifically incorporated by reference, including the definitions set forth at 243 CMR 3.02) apply to nursing homes in the Commonwealth that provide levels of care I, II or III (or any combination of them), and to certain physicians who practice medicine or hold administrative positions in such nursing homes. A licensee of the Board may accept employment, be an independent contractor or provide patient care at any such nursing home only if the nursing home meets or exceeds the following requirements.
(a) A nursing home shall not appoint a medical director or advisory physician (or any individual performing a similar function) who is a licensee, unless the nursing home does the following:
1. In the case of a licensee who, at the time of such appointment and at the time of each required biennial review thereafter, has staff privileges at a licensed or state-operated hospital in the Commonwealth, the nursing home shall inquire, prior to the appointment and at least biennially thereafter, of the status of the licensee's staff privileges at the hospital in the Commonwealth where the licensee spends the greatest proportion of his or her time (the Primary Hospital), and the primary hospital shall submit to the nursing home a written statement with regard to such status. Said statement shall either:
a. note that the licensee's staff privileges are in full force and effect; or
b. detail any modification in said privileges during the past three years, including any disciplinary action involving the licensee initiated or closed during the past three years.
In the case of 243 CMR 3.13(1)(a)1.b., the nursing home shall assess the relevance of such modification and/or disciplinary action on the licensee's performance, judgment and clinical skills.
2. In the case of a licensee who does not have staff privileges at a hospital consistent with 243 CMR 3.13(1)(a)1., then the nursing home shall review the professional competence of such licensee by obtaining the following documents and making the following assessments:
a. The nursing home shall verify that the licensee holds a current license to practice medicine, by inspecting the licensee's license card or requesting verification from the Board.
b. The nursing home shall require the licensee to provide and shall obtain and review a copy of the licensee's most recent application for initial or renewal registration to practice medicine in the Commonwealth, including all attachments and explanatory materials submitted with the application, whether required or voluntarily submitted. To the extent allowed by M.G.L. c. 151B, § 4, the licensee may delete from such application information disclosing:
(i) an arrest, detention or disposition, regarding any violation of law in which no conviction resulted;
(ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace; and
(iii) any conviction for a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of the review of professional competence, unless the licensee has been convicted of any offense within five years immediately preceding the date of said review.
c. The nursing home shall require the licensee to provide and shall obtain and review a listing and description of all malpractice claims and malpractice lawsuits involving the licensee pending or closed during the previous ten years, including the information listed in 243 CMR 3.13(1)(a)2.d. and any further relevant information that it requests. This requirement applies, whether or not the transaction giving rise to the malpractice claim arose at the nursing home, and whether or not the malpractice claim is filed with or presented to an insurance carrier, a court or another entity.
d. The nursing home shall require the licensee to authorize his or her medical malpractice liability insurance carrier or carriers to release to the nursing home the following information, described in M.G.L. c. 112, § 5C, as to claims or actions for damages pending or closed during the previous ten years, whether or not there has been a final disposition:
(i) the name and age of the claimant or plaintiff;
(ii) the nature and substance of the claim;
(iii) the date and place at which the claim arose;
(iv) the amounts paid, if any, and the date and manner of disposition, whether by judgment, settlement or otherwise; and
(v) the date and reason for final disposition, if there was no judgment or settlement.
e. With respect to the past ten years, the nursing home shall obtain from the licensee the name and address of each hospital and clinic where the licensee has or has had employment, practice, association for the purpose of providing patient care, or privileges, and each nursing home where the licensee serves or has served as medical director or advisory physician (or in any similar position). It shall also require that the licensee provide the reasons for any discontinuance of any such employment, practice, association or privileges at any such hospital, clinic or nursing home.
f. The nursing home shall obtain from the licensee authorization for release to the nursing home of any information from any other health care facility, including any nursing home, where the licensee has or has had employment, practice, association for the purpose of providing patient care or privileges, if such information is relevant, directly or indirectly, to the licensee's competence to practice medicine or to serve as medical director or advisory physician.
g. The nursing home shall make reasonable inquiry to each hospital, clinic and nursing home identified by the licensee pursuant to 243 CMR 3.13(1)(a)2.e., with which the licensee has or has had employment, practice, association for the purpose of providing patient care or privileges during the following time periods: a) for an initial association with the nursing home, during the past ten years; b) for each subsequent biennial review of the licensee's professional competence, during the past three years, or during the period from the date of the immediately prior review to the present, whichever is shorter. Reasonable Inquiry shall include at least one written request for:
(i) an assessment of the licensee's character and competence to practice medicine, and, to the extent they are relevant to the position of medical director or advisory physician, as the case may be, an assessment of the licensee's clinical skills; and
(ii) information regarding any pending or final disciplinary action and malpractice claim. In the case of an inquiry concerning a period of time when the licensee held a limited license under M.G.L. c. 112, § 9 (or performed equivalent post-graduate work outside of the Commonwealth), the hospital where the licensee had his primary assignment may respond on behalf of its affiliated health care facilities where the licensee practiced medicine.
(b) 243 CMR 3.13(1)(a) shall be implemented as follows:
1. The professional competence of a licensee subject to 243 CMR 3.13(1)(a)1. shall be reviewed for the first time by the nursing home pursuant to 243 CMR 3.00 no later than 90 days following either the licensee's initial credentialing or his or her first re-credentialing by the primary hospital pursuant to 243 CMR 3.05, whichever occurs first.
2. The professional competence of a licensee subject to 243 CMR 3.13(1)(a)2. shall be reviewed for the first time by the nursing home pursuant to 243 CMR 3.13(1)(a)2. no later than 180 days following the effective date of 243 CMR 3.13 or prior to the licensee's serving as medical director or advisory physician of the nursing home, whichever occurs later.
(a) The failure of any licensee responsible for treatment of a nursing home resident to treat or prescribe a course of treatment for such resident:
1. after said licensee has been contacted by the nursing home, if:
a. during the course of events that prompted the nursing home to contact the licensee, the resident dies or is transferred to a hospital; and
b. such death or transfer may have been prevented had the physician not failed to treat the resident; or
2. where the licensee is required by law to examine, treat or prescribe a course of treatment for such resident, if, during the course of events that would reasonably have been observed if the licensee had examined or prescribed a course of treatment for the resident, the resident dies or is transferred to a hospital.
(b) Any medical treatment provided to a nursing home resident by a licensee, or any failure by a licensee to provide such treatment, where, directly or indirectly, such treatment or failure to treat seriously affects the health of a resident, or where it involves or may involve abuse, mistreatment or neglect. Examples of reportable incidents, for illustrative purposes only, include an inadequately treated decubitus ulcer, a medication error or an unevaluated change in mental status.