New stan­dards to up­hold

Joint Com­mis­sion draft for by­laws gains trac­tion as com­ment pe­riod con­tin­ues

Modern Healthcare - - The Week In Healthcare - Bar­bara Kirch­heimer

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.

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