On December 17, 2009, after a lengthy deliberative process undertaken by a specially designated task force that consisted of representatives from both physician and hospital groups, The Joint Commission released for field review and comment its latest take on Medical Staff Standard MS.01.01.01 (formerly numbered MS.1.20, and referred to herein as the “Revised Standard”), which concerns the interrelationship of the medical staff, medical executive committee (MEC) and hospital governing body, as well as outlines the required content and level of detail required in medical staff bylaws.
As part of the field review process, The Joint Commission will accept comments via its website or e-mail submission until January 28, 2010. The Revised Standard seeks to replace a former version of the revised draft Standard (2007 Proposal) that met with significant resistance from physician and hospital groups alike.
The 2007 Proposal
The 2007 Proposal specified that, among other changes, “substantive” medical staff bylaws categories, including those relating to privileging, credentialing, medical staff hearings and elections, and the “process” for each of these areas, would be required as part of the medical staff bylaws approved by the hospital’s organized medical staff, and that only “procedural details” describing how these processes would be carried out could be relegated to other documents that are not necessarily subject to approval of the organized medical staff. Unfortunately for hospitals, The Joint Commission provided little guidance on what differentiated a “process” from a “procedural detail” in the Standard, which concerned hospitals and physician groups alike. The 2007 Proposal also removed a hospital’s ability to choose to separate credentialing policies and hearing materials from the medical staff bylaws. The organized medical staff was empowered in the 2007 Proposal to take action in the case of disagreements or failure to act by the MEC, which was noted at the time to open a Pandora’s box of possibilities whereby medical staff members could clog the medical staff process by exercising these “veto” rights.
The Revised Standard
While acknowledging that the governing body is “ultimately responsible for the quality and safety of care at the hospital,” the Revised Standard continues to provide that the organized medical staff alone is responsible for its organizational structure, rules and governance. The role of the MEC, as in the 2007 Proposal, remains diminished, with its authority to take actions that affect the medical staff bylaws limited. The MEC may of its own accord adopt only the ministerial “details” that relate to the 24 Elements of Performance (EPs) that are by the terms of the Revised Standard the required content of the bylaws. Any discord amongst the medical staff regarding the bylaws, rules and regulations, or policies is to be dealt with through an “internal conflict” policy. Similarly, any conflict between the medical staff and a hospital’s governing body is to be dealt with through a “conflict management process” in accordance with The Joint Commission’s leadership chapter.
The Joint Commission task force on MS.01.01.01 identified among the three “fundamental principles” guiding its work that “[a] well-functioning relationship between [a hospital’s] governing body, hospital leadership, and the medical staff is essential to the delivery of high quality, safe care.” The Revised Standard portrays the likely interaction of the medical staff, MEC and governing body as an idyllic relationship with rare conflicts, which may not be the situation for many accredited hospitals.
Among the 12 general EPs that precede those that must be included in the medical staff bylaws, a few concepts are worthy of special note:
Bylaws, rules and regulations, and policies are to be “developed” by the organized medical staff—input or development by the hospital is not a consideration (EP 1), though bylaws approved by the organized medical staff are effective only upon approval by the hospital’s governing body (EP 2).
The organized medical staff may not delegate adoption or amendment of bylaws to another group or body, including the MEC or another medical staff committee (EP 2).
“Associated details” in relation to the two dozen EPs that must be included in the bylaws “may be extensive” and “may reside” in the bylaws or other documents; but rather than confront issues raised in relation to the “associated details” concept in the 2007 Proposal, the Revised Standard puts the determination of what constitutes an “associated detail,” where the details should reside and whether their adoption can be delegated in the hands of the organized medical staff (EP 3).
Every “process” contemplated in the EPs included in the bylaws must include, at a minimum, the “basic steps” for implementation of such process, which basic steps are to be determined by the organized medical staff and approved by the governing body, with proposals effective after governing body approval (EP 3).
Despite the organized medical staff’s ability to initiate changes to the bylaws, rules and regulations, and policies under the Revised Standard, the Revised Standard also assumes that these documents will be compatible with hospital governing body bylaws, hospital policies and procedures, which is an area that is ripe for conflict in some organizations (EP 4).
The Revised Standard retains the 2007 Proposal concept that any member of the organized medical staff—at any point—may propose to the governing board desired amendments to the medical staff bylaws, rules and regulations, and policies, creating a mechanism for dissident physicians to jam the governing body with proposals without the benefit of MEC discernment and consideration (EP 8); however, a conflicting provision provides that the organized medical staff propose adoption of new or amended rules and regulations or policies first to the MEC (EP 9).
Reference to the MEC’s role in adopting an “urgent amendment to the rules and regulations…to comply with law or regulation” does not (though it may have been intended to) refer also or instead to urgent amendments to the medical staff bylaws for those same reasons (EP 11).
EPs Required in the Bylaws
The 12 EPs that must be included in the medical staff bylaws, many of which are identified by The Joint Commission as aligning with the Centers for Medicare & Medicaid Services (CMS) Conditions of Participation, raise additional concerns:
Qualifications for medical staff appointment and the entire “process” for privileging and reprivileging licensed independent practitioners (LIPs), and credentialing and recredentialing LIPs and potentially other practitioners must be included in the bylaws, abrogating the use of medical staff appointment or credentialing policies and procedures as a source for this information (EPs 13–14; EPs 26–27).
The Joint Commission acknowledges that it has not yet reconciled its use of the term “privileges” with the CMS, which could lead to confusion (EP 15).
The requirements for completing and documenting histories and physicals must be included in the bylaws, including the components cited as part of other Standards, specifically PC.01.02.03 (EPs 4–5; EP 16).
The function, size and composition of the MEC is determined by the organized medical staff and approved by the governing body (EPs 20–23).
Indications for, and the process related to, automatic suspension, summary suspension, full suspension or termination of a practitioner’s medical staff membership or similar reductions in clinical privileges must be made part of the bylaws (EPs 28–32); similarly, the process for even recommending such actions must be included in the bylaws (EP 33).
A significant amount of fair hearing-related information and specifics, including the composition of the fair hearing committee and the processes for scheduling and conducting hearings and appeals, are to be included in the bylaws. If hospitals house these vital processes in policies or handbooks, these EPs alone will require significant revisions and redrafts to the bylaws, which will be subject to medical staff “development” that may not be palatable to the governing body (EPs 34–35).
The Revised Standard sets forth specific qualifications and roles and responsibilities for medical staff department chairs that are defined solely by the organized medical staff (EP 36).
Hospitals may not appreciate the distinctions between the 2007 Proposal and the Revised Standard to the extent that the Revised Standard still ties the hands of hospitals and their governing bodies to actively develop and implement certain aspects of the hospital’s relationship with its medical staff, and in most cases will require wholesale revision of medical staff bylaws in order to come into compliance. The quest for compliance will require hospitals and medical staffs to work together and live out the fundamental principles outlined by The Joint Commission’s task force.
Issuing the Revised Standard for field review provides an opportunity for accredited health care providers to comment and express concerns regarding the draft revisions; however, the “collaborative” process instituted by the task force in preparing the revisions, and the collective approval of key constituent groups, including the American Medical Association and the American Hospital Association, hint that The Joint Commission is more likely than not to view the Revised Standard as worthy of adoption and implementation without significant changes. The timeline for any such implementation is not yet known.
What’s Next?Hospitals should make their opinions known to The Joint Commission by providing comments as part of the field review. Hospitals should simultaneously review the Revised Standard to determine in advance how their medical staff bylaws will need to be revised to include the proposed required EPs as well as identify any other process or procedural changes that will be needed to conform with the Revised Standard. Each hospital governing body should also be apprised of the manner in which the Revised Standard will affect its interactions with the medical staff and MEC, and a dialogue should be initiated to lay the groundwork for the collaboration that will be required in order to implement significant bylaws revisions in accordance with the Revised Standard.