New standards to uphold
Joint Commission draft for bylaws gains traction as comment period continues
One sign of a true compromise is an outcome that nobody considers ideal but most find acceptable. By that measure, the draft medical staff standard the Joint Commission recently released for field review appears to be a successful compromise, say hospital and physician groups.
The evolution of the standard over the past several years fueled a power struggle of sorts between physician groups and hospitals. The debate hinged on what should be included in medical staff bylaws and how those details can affect the delicate balance of power between the organized medical staff of a hospital, the medical executive committee that votes on its behalf, and the hospital’s governing body.
First crafted in 2004, the standard was revised in 2007, at which point hospitals raised concerns about the potential cost of compliance and about elements they said would have undermined the authority of their governing boards and medical executive committees. The controversy soon escalated, with physician groups resisting hospitals’ push for more control over medical staffs, ultimately leading to a delay of the standard’s implementation.
The current working draft standard released Dec. 17, 2009, called MS.01.01.01, replaces the 2007 version (MS.1.20), and is the product of 12 meetings over more than a year by a task force convened by the Joint Commission that included representatives from seven professional organizations, among them hospital executives, physician leaders, and lawyers representing hospitals and physician groups. The Joint Commission is accepting comments from the field on the draft standard until Jan. 28, and commissioners are expected to vote on it at a scheduled March meeting.
“I think there are stakeholders who can look at this and definitely shoot holes in it,” said Elizabeth Snelson, a St. Paul, Minn., lawyer and task force member who specializes in writing medical staff bylaws and often represents medical staffs and societies. “However, I think it’s probably the best standard we’ve ever had from the Joint Commission on these issues,” she said.
Most agree the latest version is less prescriptive than the 2007 version. This task force was attempting to maintain the credibility of the bylaws while providing greater flexibility about where the details reside, said Chuck Mowll, an executive vice president at the Joint Commission. This distinction is important because the organized medical staff must approve staff bylaws, which can often involve a lengthy process. Changes in rules, regulations or policies, however, can be handled in more expeditious ways. Under the draft standard, the medical staff can propose a change in a rule, regulation or policy directly to the hospital’s governing body, but the staff must notify the medical executive committee when it does so, which is a change from the 2007 version.
The medical executive committee, similarly, must provide notice to the medical staff about any proposed changes to rules or regulations. The standard also requires organizations to have a process in place to manage conflicts. While there is flexibility about whether to include some details in bylaws or rules, regulations or policies, if a process is involved, the steps of the process must be outlined in the bylaws.
In an Aug. 7, 2009 letter, the American College of Physicians, American College of Surgeons, American Dental Association, American Hospital Association, American Medical Association, Federation of American Hospitals and National Association Medical Staff Services endorsed the current version of the standard. “The important thing is that these groups, the various colleges, the AMA and the two major hospital groups have all agreed that this is workable and have agreed to go forward with this,” said LaMar McGinnis Jr., president of the American College of Surgeons and the group’s commissioner to the Joint Commission.
If approved, the standard will at the very least require hospitals to revisit their bylaws and re-evaluate the relationships between the medical executive committee, medical staff and the governing body, said Michael Callahan, a partner in the law firm Katten Muchin Rosenman. Hospitals that have separated out their fair-hearing or credentialing processes into manuals outside the bylaws are the ones likely to be most affected by the standard if it is adopted, Callahan said. “They’ll have to figure out what portion of that will have to migrate back into the bylaws. That’s not altogether clear.” One challenge for hospitals and medical staffs will be determining the threshold of physician discontent that would trigger a dispute resolution process under the standard, he said.
Jeff Micklos, executive vice president and general counsel for the Federation of American Hospitals, said that its members have already raised concerns about ambiguity in the standard’s dispute-resolution provisions. “I think in some ways both sides would like it to be black and white, and the fact that it’s been going on for five years shows that’s very hard to achieve,” he said. “We will live with the compromise that’s on the table.”
The current standard addresses the concern the AHA had with the 2007 version that too much power was being taken from the medical executive committee, said Nancy Foster, the AHA’s vice president for quality and patient safety. Noting that there are still some areas of ambiguity, she predicted that some hospitals that believe their bylaws processes are working well now “may push back a little” against the standard.
Mowll says the Joint Commission is prepared to provide as much education as necessary so hospitals don’t “overreact” to the changes in the standard.
There are some who would be happy to move on. Ann O’Connell, a partner in the law firm Nossaman, represented the California Hospital Association on the task force. “My concern is that if this standard is not adopted in its current version,” she said, “you’ll find people going back to their corners and rabblerousing again.”
McGinnis: Groups “have all agreed that this is workable.”
Mowll: Task force sought to add flexibility.