Doc­tors on bal­lot?

Rule may raise un­in­tended con­se­quences

Modern Healthcare - - THE WEEK IN HEALTHCARE - An­dis Robeznieks

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.”

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