Physician Due Process Rights

June 11, 2018

The Honorable Seema Verma
Administrator, Centers for Medicare and Medicaid Services
7500 Security Boulevard
Baltimore, MD 21244

Dear Administrator Verma,

We, the undersigned organizations, write to express concern about the systematic violation of physician due process rights and its impact on quality patient care and patient safety. The threat of termination from a hospital medical staff without the right of a fair hearing prevents physicians from advocating for patients for fear of retribution. The growing problem of denial of due process rights is a critical quality of care issue that is impacting patients.

The right to due process is well-established in our healthcare system. They exist through the Healthcare Quality Improvement Act of 1986 and are affirmed by the Joint Commission via the Comprehensive AccreditationManual for Hospitals, and the 14th Amendment of the U.S. Constitution.

We believe that patients and taxpayers are best served when physicians have the right to due process prior to termination from a hospital's medical staff. Physicians with due process rights are more likely to bring attention to fraudulent practices that threaten the integrity of the Medicare and Medicaid programs. They are more likely to act in the best interest of the patient when it comes to test ordering, admission decisions, and coding/billing issues. The protection of physician autonomy is a critical mechanism to protect patients, and assure physicians that they will not lose their practice rights for unfair reasons.

Whether employed by hospitals or contracted groups, emergency physicians are often deprived of their due process rights via inclusion of a "waiver of due process rights" clause in employment contracts. This can be required by the hospital, health system, or group and can occur in a variety of practice environments. Physicians are often directly or indirectly terminated with or without cause, without a fair hearing. In a recent survey of emergency physicians, more than half of respondents report having been forced to waive their right to due process rights. We believe that such contractual clauses violate the physician right to due process established by Congress, the Joint Commission, and the Constitution. For these reasons, any employed or independently contracted physician should be protected from any clause in their individual contract requiring a waiver of due process unless the group loses or terminates their group contract with the hospital or health system.

We encourage the Centers for Medicare and Medicaid Services (CMS) to consider the original intent of current policies that provide for physician due process rights and to take the next step in guaranteeing those rights by making them unwaivable and irrevocable. We would greatly appreciate any actions that could be taken to support these rights, including changes through the Medicare Conditions of Participation or other appropriate avenues. Physicians are on the front lines of health care delivery, and whether it is the reporting of Medicare waste, fraud, and abuse, or advocating on local issues such as hospital crowding, resource utilization, or the care of an uninsured patient, appropriate protections will augment the physician voice in critical patient care discussions.

Thank you for your consideration and we look forward to working with you and your staff to address this important problem. 

Sincerely,