The Joint Commission has posted proposed changes to its Medical Staff Standard that will likely change how Medical Staffs relate to their Medical Executive Committees. While some of the changes help to clarify roles and responsibilities of medical staff members and officers, these changes could also impact how hospitals interact with their medical staffs. The proposed revised standard (the “Proposed Standard”) is available on the Joint Commission’s website.
The Proposed Standard
The Proposed Standard is the result of the work of the MS.1.20 Implementation Task Force, which includes physicians, hospital CEOs, trustees and healthcare attorneys. The Task Force was convened in December 2007 after concerns were raised that the June 2007 Standard was unclear, unworkable and disruptive to the relationships between medical staff and their governing body. After analyzing the potential repercussions of implementing the June 2007 revisions to MS.1.20, the Task Force determined that a revision of the June 2007 Standard was necessary. As discussed further below, the result of their efforts proposes significant changes to the Joint Commission’s Medical Staff Standard, including: the addition of new Elements of Performance (including specific processes) to the medical staff bylaws, further definition to the role of the Medical Executive Committee (“MEC”) and the requirement that the organized medical staff adopt a dispute resolution process to address internal conflicts.
First, the Proposed Standard includes several new Elements of Performance (“EP”) that would be required to be in the medical staff bylaws. The new EPs are intended to align with the Centers for Medicare and Medicaid Services’ (CMS) Conditions of Participation. The proposed EP’s include:
- A statement of the duties and privileges (i.e. duties and prerogatives of each category, and not the clinical privilege to provide patient care, treatment and services) related to each category of the medical staff (for example, active or courtesy medical staff). (Proposed EP #15)
- The requirements for completing and documenting medical histories and physical examinations (which must include, at a minimum, those described in Standard PC.01.02.03, EPs 4 and 5). (Proposed EP #17)
- A description of those members of the medical staff who are eligible to vote. (Proposed EP #17)
- A list of all the officer positions for the medical staff. (Proposed EP #19)
- The specific authority delegated to the MEC by the organized medical staff to act on the medical staff’s behalf, and how such authority is delegated or removed. (Proposed EP #20)
- The processes for adopting and amending the medical staff bylaws, rules and regulations, and policies. (Proposed EPs #24 and 25) The process for privileging (and re-privileging) and credentialing (and re-credentialing) licensed independent practitioners (and, if desired, other practitioners), as well as appointment (and re-appointment) to the medical staff. (Proposed EPs #14, 26 and 27)
- The processes for automatic and summary suspensions of a practitioner’s medical staff membership or clinical privileges. (Proposed EPs #31 and 32)
- The fair hearing and appeal process which, at a minimum, shall include the processes for scheduling and conducting hearings and appeals. (Proposed EP #34)
- The composition of the fair hearing committee. (Proposed EP #35)
- The qualifications, roles and responsibilities of the department chairs, as defined by the organized medical staff (including the minimum qualifications set forth in the EP). (Proposed EP #36)
Where the Proposed Standard requires that a specific “process” be included in the medical staff bylaws, the bylaws should include, at a minimum, the “basic steps” of the process as determined by the organized medical staff and approved by the governing body. See Proposed EP #3 and The Joint Commission’s Frequently Asked Questions regarding the proposed MS.01.01.01. The “associated details” related to such processes may, however, reside in the medical staff bylaws, the rules and regulations or in other policies. The organized medical staff has the authority, and obligation, to determine where the associated details reside, whether the adoption or amendment of associated details can be delegated to the MEC, and the degree of detail, if any, they choose to require above and beyond the basic steps in the medical staff bylaws.
Many of these new requirements involve material that may previously have resided in medical staff rules and regulations or other policies (including credentialing or fair hearing policies). The Proposed Standard would mandate that this additional material be included in the medical staff bylaws, and therefore could require significant revisions to each medical staff’s bylaws. Making the changes necessary to become compliant could prove costly.
Second, the Proposed Standard further defines – and potentially limits – the role and responsibility of the MEC. In recognition of concerns that previous versions of the Medical Staff Standard gave the MEC too much power, the Proposed Standard attempts to shift the balance of power by requiring greater detail about the function, size, composition and authority of the MEC. See Proposed EPs #20-23. Additionally, the Proposed Standard requires more communication between the MEC and the organized medical staff, and restricts the ability of the MEC to act independently. For example, under the Proposed Standard the organized medical staff may not delegate adoption or amendment of the medical staff bylaws to the MEC or any other committee. See Proposed EP #2. Likewise, the Proposed Standard requires that, to the extent the MEC has the authority (under the medical staff bylaws) to adopt or amend a rule or regulation, the MEC must first communicate any proposed rule or regulation to the medical staff. See Proposed EP #9. Furthermore, in the event an urgent amendment to the rules or regulations is necessary, the MEC may provisionally adopt such amendment only if the organized medical staff is immediately notified and the medical staff has the opportunity for retrospective review and comment on the provisional amendment. See Proposed EP #11. Finally, the Proposed Standard limits the ability of the MEC to act on behalf of the organized medical staff, between meetings, to acts within the scope of the MEC’s responsibilities as defined in the medical staff bylaws. See Proposed EP #23. Third, the Proposed Standard requires that the organized medical staff adopt and implement a process to resolve “internal conflicts” between the medical staff and the MEC. This process will apply to issues including, but not limited to, proposals to adopt or amend a rule, regulation or policy. See Proposed Standard and Proposed EP #10. Likewise, the Proposed Standard specifies that any conflicts between the organized medical staff and the governing body regarding the medical staff bylaws, rules and regulations, or policies, should be resolved through the organization’s “conflict management process” as required by the Joint Commission’s leadership chapter. See Proposed Standard.
Potential Impact of Proposed Standard’s Implementation
The Proposed Standard, if ultimately adopted by the Joint Commission, would likely require significant revisions of the medical staff bylaws and could otherwise impact the operations and rights of the medical staff.
As outlined above, the Proposed Standard includes several new EPs that would be required to be in the medical staff bylaws. While the Proposed Standard provides the organized medical staff with the flexibility to determine the level of detail in their bylaws, it is clear that the inclusion of these new requirements would have significant repercussions. First, there would be significant costs – in time and resources –associated with amending the medical staff bylaws to come into compliance. Second, the Proposed Standard grants the medical staff the unlimited authority and obligation to adopt and amend all of the qualifications, policies and procedures contained in the Proposed EPs. Thus, under the Proposed Standard, the organized staff would no longer have the flexibility, if so desired, to delegate any authority to adopt the various policies and procedures set forth in the Proposed EPs to the MEC. Many of the requirements set forth in the Proposed EPs previously resided in other medical staff documents (which may been adopted by the MEC via the MEC’s delegated authority). Under the Proposed Standard, the organized medical staff would be required to review, adopt and periodically amend more detailed policies and procedures within the medical staff bylaws. Lacking the time or expertise to fully review, debate and develop these policies, many members of the organized medical staff might prefer to delegate such tasks to their representatives on the MEC. The Proposed Standard, however, does not provide them the flexibility to do so. Third, there may be legal significance to adding further detail regarding the rights and responsibility of the hospital and the medical staff to the medical staff bylaws, which in many jurisdictions is deemed a contract between the hospital and the individual members of the medical staff.
Additionally, the Proposed Standard could impact the relationships between the organized medical staff and the MEC. The Proposed Standard requires that the organized medical staff define the role of the MEC in the bylaws, and provides the organized medical staff with the opportunity to further limit the authority of the MEC to act on its behalf. While the Proposed Standard addresses concerns regarding the potentially dangerous power of an over-reaching MEC, it ignores the reality that the MEC is the elected representative body of the organized medical staff and is, in most instances, in the best position to act knowledgeably, efficiently and effectively on their behalf. Moreover, the dispute resolution processes required by the Proposed Standard may further limit the authority of the MEC, to the extent such processes could require the MEC to mediate, arbitrate or compromise matters that would otherwise be within their authority. At this time it is unclear what “dispute resolution processes” are contemplated by the Proposed Standard and whether such processes would require either the MEC or the organized medical staff to compromise or waive their rights under the medical staff bylaws. Currently disputes between the organized medical staff are resolved through the electoral processes (e.g., if the medical staff has a problem with how certain members of the MEC are governing, they can simply vote them off the MEC). Conceivably, the organized medical staff could simply specify that any disputes between the MEC and the organized medical staff would be resolved through the election (and re-election) of members of the MEC.
The Task Force has sought comments from the field on the Proposed Standard, but it is unclear when any decision regarding the adoption the Proposed Standard will occur. If ultimately adopted, it is anticipated that the Proposed Standard would be implemented in July 2011.
See Joint Commission’s Frequently Asked Questions regarding the proposed MS.01.01.01 here.