Doctors on ballot?
Rule may raise unintended consequences
Part of the Obama administration’s effort to ease the regulatory burden on hospitals has left some puzzling over whether the rule would require physicians to run for elected office and require voters to elect them.
In its final rule updating Medicare conditions of participation for hospitals, the CMS now requires hospital governing bodies to include one medical staff member. But the Missouri Hospital Association has questioned the wisdom of this requirement for county and municipally owned and operated facilities with publicly elected boards.
“Members of the medical staff cannot be compelled to seek elective office, and voters cannot be compelled to endorse them,” Herb Kuhn, MHA president and CEO, wrote in a letter to CMS acting Administrator Marilyn Tavenner.
In an interview, Kuhn noted that this requirement was not included in the proposed rule and was added as a result of comments the CMS received about the need to keep a hospital governing body informed about the challenges of care coordination.
“We believe that adding the requirement for hospitals to have a medical staff member to serve on the governing body will build in an important element of continuity and ensure regular communication between a hospital’s governing body and its medical staff(s), particularly in light of our decision to permit a single governing body for hospitals in multihospital systems,” the CMS said in the rule. “We also believe that requiring a hospital’s governing body to include a medical staff member will directly address a widely voiced concern for stronger communication between a hospital governing body and the medical staffs of member hospitals.”
Kuhn, however, said hospital officials in Missouri—which has 17 hospitals with local government ownership—were “scratching their heads and saying, ‘Did they really mean this?’ … How do you compel someone to run for office?”
“A lot of these are publicly elected,” Kuhn said of the 17 government hospitals. “And that’s what makes things even more troubling.”
A CMS spokeswoman said in an e-mail
that the agency is reviewing the MHA letter and will respond to the association directly about the concerns it expressed.
But the situation is not unique to Missouri. Iowa Hospital Association spokesman Scott Mcintyre said the rule conflicts with a state law prohibiting a physician with medical staff privileges or their spouse from serving on the elected boards of county hospitals that they work at.
“It’s not just hospital policy, it’s state law,” Mcintyre said.
Mcintyre characterized the new requirement as “an oversight,” while Kuhn called it “a misstep” and didn’t believe it would be enforced. He suggested that the CMS take corrective action included as a “ride along” provision in the next rule it proposes.
David Baxter, an attorney with Sumrell, Sugg, Carmichael, Hicks & Hart in New Bern, N.C., said he had similar concerns and has communicated via e-mail with an official in the U.S. Public Health Service who told him it was not the intent of the CMS to pre-empt or interfere with state laws that control the appointment process for hospital governing bodies.
“I think the intent is clear, but the effects were not contemplated,” Baxter said, adding that “an analogy to the individual mandate is a little loose.”
Baxter noted that the effect will not result in physicians being forced to run for the board, but it will be up to hospitals to find a way to get medical staff representation.
“I think this is putting the onus on the board saying: You will do this and figure out a way to do this,” Baxter said. “You are essentially forcing the medical staff to participate in governance—but not directly forcing an individual to. It’s not penalizing the individual physicians to participate—they have a choice. This burden is being placed on the hospitals more than anything.”