The Board of Commissioners of the Joint Commission on Accreditation of Healthcare Organizations (the "Joint Commission") approved major revisions to the Joint Commission's Medical Staff Standard 1.20 ("MS.1.20") at its meeting in June 2007. These revisions contain performance elements to be addressed in medical staff bylaws, as well as elements that outline the relationship among the organized medical staff, the elected members of the medical staff executive committee and the hospital governing body. The recent revisions to MS.1.20 have been roundly criticized by hospital attorneys, who allege that this new standard will create havoc in that it will cause inefficiency within the hospital medical staff organization, will set back the goal of quality patient care, will create ambiguities in the relationships that currently exist between and among the medical staff, its executive committee and the hospital governing board, and will place additional burden and expense on medical staff physicians, as well as on the hospital.

Managing the physicians on a hospital's medical staff is a difficult job for the physicians in leadership positions at the hospital. Some would argue that the new MS.1.20 will make it more difficult for hospitals to recruit physicians to serve in the medical staff organization.

The hospital medical staff is an integral part of the smooth and efficient functioning of any hospital or health system organization. The medical staff works in conjunction with the hospital's Board of Directors or Trustees to assure the quality of medical care delivered to patients in the institution. As with all components of a hospital, the medical staff must meet accreditation requirements established by the Joint Commission.

MS.1.20 makes significant changes to the standard for medical staff bylaws, rules, regulations and policies. Hospital advocates complain that these provisions: 1) mandate that certain accreditation requirements must be included in the medical staff bylaws; and 2) undermine the authority of the medical executive committee (the "MEC") by allowing the hospital medical staff to review MEC action prior to its becoming effective, and to recommend bylaws changes directly to the hospital board, without input from the MEC. The revised standard does not become effective until July 1, 2009. Thus, there is hope that the Joint Commission will make revisions in response to reaction from the industry.

Specifically, the revised MS.1.20 was written "with the intent of supporting and reinforcing a productive working relationship between the organized medical staff and the governing body . . . while minimizing disruptions to the hospital, including its medical staff." Upon careful analysis, however, two new provisions appear to do just the opposite by creating uncertainty in the ongoing functioning of the medical staff in relation to its executive committee (the MEC) and to the governing body of the hospital. The uncertainty created by these new standards could lead to unnecessary work by physicians and others, consuming more time in the medical staff process, with little benefit as a result.

Uncertainty arises first in the new description of what items need to be placed in the medical staff bylaws in order for the hospital to meet accreditation standards. Distinction is made between "processes" and "procedural details." It is required that processes be contained within the medical staff bylaws. Procedural details can be recited elsewhere. A "process" is a continuum of tasks necessary to accomplish a certain goal. "Procedural details" describe how each discrete task will be carried out. The problem is how to distinguish between the two, and how to decide what must be in the medical staff bylaws, and what can be described in other documents such as fair hearing plans, medical staff policies and procedures. Due to this uncertainty and the need for safety in compliance with MS.1.20, many medical staffs may decide to put everything in the medical staff bylaws, an activity that will be cumbersome, costly and time-consuming.

Equally important are the aspects of the new standard that create an adversarial process between the medical staff and its leaders on the MEC. Over the years, a hospital's MEC has been a body composed of the physician leaders on the medical staff, who were willing to meet and take action as a representative body of the much larger medical staff organization. This allowed the medical staff to work as a group to achieve its required oversight functions, when there are often many differing opinions among individual physicians. Revisions to MS.1.20 undermine this unity by allowing the medical staff to bypass the MEC and go directly to the hospital's governing body to propose new medical staff bylaws, rules, regulations and policies. In addition, revised MS.1.20 allows the entire medical staff to "extract and consider an action by the MEC prior to the action becoming effective." Thus, the medical staff has the ability to override actions by the MEC, an authority that potentially will make the MEC irrelevant and dysfunctional.

A hospital cannot function efficiently and perform the many services it needs to provide in difficult circumstances in an environment where there is no clear line of authority within the organization of its physicians. The healthcare community had hoped that revisions to MS.1.20 would make things easier, not more difficult. This aspiration is now in question. Cautious medical staffs will be waiting until July 1, 2009, before they undertake the significant and costly changes required by the new MS.1.20. Others are beginning the battle now.

Comments are still being accepted by the Joint Commission. Thus, hospitals and physician groups may wish to review the revised MS.1.20 and send the Joint Commission their thoughts and suggestions. In the meantime, hospitals and medical staffs should adopt a strategy, in conjunction with their legal counsel, that will best serve the interests of all involved and will be in compliance with the Joint Commission's requirements.