New Joint Commission Standard Fosters Collaboration Between Medical Staff, Hospitals
By Mercedes L. Varasteh
A new Joint Commission standard that dramatically changes the required content of medical staff bylaws is slated to take effect July 1, 2009. The new standard will shift the balance in power between medical staffs and hospital governing boards by requiring the governance documents to be the fruit of a more collaborative process between the two entities.
The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations (or JCAHO), published a revised version of Medical Staff Standard 1.20 (MS.1.20) in 2007. Medical staff bylaws, which are entirely separate from the hospital corporate bylaws, are the authoritative documents that address medical staff self-governance and accountability to the governing body.
The bylaws outline credentialing and privileging procedures for members of the medical staff, rights to a hearing before a hospital’s Medical Executive Committee (MEC), and the rights and duties of medical staff members and MEC members.
While the previous Joint Commission MS.1.20 provided a list of sections required to be included in medical staff bylaws, such as “Medical Staff Executive Committees,” “Corrective Actions,” and “Fair Hearing provisions,” the new MS.1.20 standard requires that the details of these sections, as well as the manner in which compliance will be achieved, to be carefully articulated.
Furthermore, the new MS.1.20 boosts the power and influence of medical staffs. While medical staffs may still delegate authority to the MEC to act on their behalf, the bylaws must now specify exactly how that authority is delegated and removed.
The new Joint Commission standard was partly nurtured by an increasing trend by the judiciary to interpret medical staff bylaws as contracts. Traditionally, medical staff bylaws have been viewed as a statutory obligation and thus lacking the requisite consideration to form a valid contact.
However, the majority of courts now hold that bylaws should be construed as contracts, reasoning that if hospitals are not required to adhere to the provisions of the medical staff bylaws, the bylaws are, in effect, worthless.
This has encouraged litigation-wary hospitals to tuck away hotly-contested provisions, such as medical staff hearing rights and credentialing procedures, in “policy” or “rules and regulations” manuals, in order to limit liability for failing to follow the actual bylaws.
As a result, in recent years, hospital bylaws have varied widely from institution to institution. The new Joint Commission standard was drafted not only to encourage uniformity amongst hospital bylaws, but also to support and reinforce a “productive working relationship between the organized medical staff and the governing body … while minimizing disruptions to the hospital, including its medical staff.” The new MS.1.20 embodies a transition in the balance of power between medical staffs, governing boards and MECs (which have been historically delegated to act on behalf of the medical staff).
Adherence to MS.1.20 is measured by 33 specific “Elements of Performance” (EPs). Seventeen of these EPs — such as the composition of the fair hearing committee, the roles and responsibilities of each category of practitioner on the medical staff, and the process for selecting and removing medical staff executive committee members — must be accompanied by “procedural details” within the bylaws. A “procedural detail” describes each step of the “process” — a series of steps taken to accomplish an Element of Performance.
For example, in the previous Joint Commission standard, EP 17 stated that the medical staff bylaws must include “[a] description of the privileging process (including temporary and disaster privileging).” However, in the new Joint Commission standard, EP 10 states that the medical staff bylaws must include the requirements and any associated procedural detail for “[t]he process for privileging licensed independent practitioners.”
The “process” can be stated in several steps such as collecting information on a physician, evaluating the information, and making a final decision. The “procedural details” may include who collects the information, how files are maintained, and what organizations should be contacted to collect all the necessary information. The process and procedural details must be contained in the medical staff bylaws.
Any procedural details associated with EPs 26-33, such as credentialing licensed independent practitioners and the automatic/summary suspension of a practitioner’s medical staff membership or clinical privileges, can appear either in the medical staff bylaws or in the rules and regulations/policies.
Bylaws must be acted upon in collaboration between the medical staff and the governing board; however, changes in rules and regulations/policies do not require full medical staff action. (EPs 1-8 are general housekeeping steps that must be taken to enforce the bylaws, such as that “The organized medical staff and its members comply with the medical staff bylaws, rule and regulations, and policies,” etc.)
In addition, all of the required elements of the new standard must be jointly approved by both the organized medical staff (or the MEC, if so delegated by the organized medical staff) and the governing body. The MEC has traditionally served a stand-in function by acting for the organized medical staff between meetings. In addition, most MECs had a “screening function” in medical staff bylaws amendment processes, so that only bylaw amendments approved by the MEC can be acted upon by the medical staff. MEC members can be either elected or appointed, and medical staff bylaws generally provide for “hearing rights” for medical staff members, either individually or in a group, to voice their opinions in the event the MEC chooses to pursue a course of action that is troublesome or unpopular.
The new Joint Commission standard, while allowing the medical staff to delegate powers to the MEC, also requires that the bylaws specify just how much authority is delegated and how it can be removed. In addition, the revised standard provides that the medical staff has the ability to adopt medical staff bylaws, rules and regulations/policies and propose them directly to the governing body, even if the topic has been delegated to the MEC.
These additional details were created to protect the interests of the medical staff, especially since many MECs are comprised of members who are employees of outside physicians groups who have contracts with the hospital. For example, an MEC member may also be the chairman of the radiology department, which is staffed by an outside group of physicians who have an exclusive contract with the hospital. The new standard simultaneously acts to prevent self-dealing by the MEC and foster collaboration with the medical staff, along with ensuring that the MEC adequately represents the medical staff’s views on patient safety and quality of care.
The main revisions to the new standard include:
• A discussion of the relationship between the organized medical staff and the medical staff executive committee, and the definition of “process” and “procedural detail.”
• Guidance on managing conflict that might arise pertaining to the medical staff bylaws, rules and regulations, and policies.
• EP requirements that are further detailed to clearly explain what must be in the medical staff bylaws, and what must be either in the bylaws or in rules and regulations/policies.
• An EP emphasizing the medical staff’s ability to propose medical staff bylaws, rules and regulations, and policies directly to the governing body.
• A requirement that the medical staff bylaws indicate the authority delegated to the medical staff executive committee to act on its behalf and how that authority is delegated and removed.
Opponents of the revised standard contend that the new MS.1.20 will result in a chaotic and confusing restructuring of the responsibilities of medical staff leadership, along with time-consuming and controversial revisions to the medical staff by-laws and related documents. However, proponents argue that medical staff self-governance is crucial in making sure patient safety and care does not take a backseat to business interests.
One case-in-point for the impetus of the new Joint Commission standard is the Medical Staff of Community Memorial Hosp. of San Buenaventura v. Community Memorial Hosp. of San Buenaventura (Cal. Super.
The hospital also adopted a “Medical Staff Code of Conduct,” bestowing upon itself the authority to investigate and discipline physicians who did not meet its standards. The case settled in 2004 following the resignation of the hospital’s CEO, who was replaced by a more physician-friendly leader.
While San Buenaventura is an extreme example of how hospital governing boards can unfairly commandeer authority, the new Joint Commission standard ensures that hospitals’ accountability to their medical staffs is not diminished by changing judicial or business landscapes.
Mercedes L. Varasteh is an associate with Frank, Haron, Weiner and Navarro PLC, where she focuses her practice on federal False Claims Act/qui tam litigation, and representing physician groups, individual physicians and home health agencies with issues pertaining to reimbursement, licensing, hospital governance, and medical staff credentialing/privileges.