MS.1.20, a standard that has been “under consideration” for the past four years, has now been published in final form. To view the standard in its entirety (if you have not already done so), we encourage you to go to http://www.jointcommission. org/AccreditationPrograms/Hospitals/revisions_ std_ms120_approved.htm. The contents of this Bulletin are based upon our conversations with representatives of The Joint Commission (“TJC”) as well as the Ohio Hospital Association (“OHA”) which has been integrally involved in the discussions regarding this standard.
From a historical perspective, TJC takes the position that it has never endorsed the concept of breaking out medical staff bylaws into “manuals” or other related documents; rather, this concept has evolved independent of TJC approval over the past several years. During this period of time, TJC has become concerned that these new documents (which are often voted upon only by the medical staff executive committee (“MEC”) before submission to the governing body) have taken so much authority away from the medical staff that, in some hospital systems, the MEC is no longer accountable to the medical staff and, in fact, may be controlled by hospital administration.
With the above as background, it is our understanding that MS.1.20, as published on July 10, 2007, has been driven from a basic core belief that the medical staff must have the authority to approve and control its MEC. As a necessary corollary, the intent of MS.1.20 is to ensure that the medical staff – and not the MEC—votes upon all matters that have a material impact upon a medical staff member. Ultimately, it appears that TJC intends for only “procedural details” i.e., “non-substantive details” to be delegated to the MEC. To assure that this authority is not diluted, MS.1.20 requires the medical staff bylaws to include a provision that permits the medical staff to act when it does not agree with the actions (or inactions) of the MEC (regardless or whether the authority has been delegated to the MEC by the medical staff). Although the new TJC standard is intended to provide clarity, it continues to be subject to various interpretations - even with the explanations that accompany it. Based upon our conversations with TJC as well as representatives of OHA, we believe that all we can say with certainty is the following:
1. The standard does not become effective until July 1, 2009. This means that the next twenty-four (24) months will be informative in “fleshing out” what the standard truly means.
2. The standard requires that “history and physical” requirements be in the medical staff bylaws. TJC has stated that this change has been made to make TJC standards consistent with the Center for Medicare & Medicaid Services (“CMS”) conditions of participation. In that this information has historically been placed in “rules and regulations” without objection by CMS, it is our expectation that this may be an issue of semantics. Therefore, if this information is currently in your “rules and regulations,” we do not recommend any change at this time.1
3. The standard requires that a process be in place that permits the medical staff to override the MEC. This is discussed further in our “Suggestions” below.
4. The purpose of the standard is to try to identify what information must be in the medical staff bylaws (and therefore must be voted upon by the entire medical staff) as contrasted with what information may be in other “policies” or “rules and regulations” (and therefore may be voted upon by the MEC if the authority to do so has been delegated to it by the medical staff). The standard does not recognize the term “manual.”
5. Elements of Performance #1 through #8 present the “big picture” and must be incorporated into the medical staff bylaws.
6. Elements of Performance #9 through #25 may only be found in the medical staff bylaws. Neither the “process” nor the “procedural details” may be located in any other “policy” or “rule or regulation.”
7. With respect to Elements of Performance #26 through #33, the “process” must be in the bylaws, but the “procedural details” may be in “policies” or “rules and regulations.” Although there are clear examples of what is a “procedural detail” such as “the application must be submitted to the medical staff office,” the examples become more unclear as one gets closer to “process.” For example, although it is clear that the medical staff bylaws must provide that applications will be considered based upon general competencies, it is unclear whether a list of the information needed (e.g., proof of licensure, listing of schools, etc.) would be considered a “procedural detail.” Because of the subjective nature of what constitutes a “process” versus a “procedural detail,” hospitals have the option of either (a) continuing with their current documents and waiting to see what additional information is issued by TJC during the next twenty-four months; or (b) revising their documents and limiting “policies” (often referred to as “manuals”) to purely administrative details; or (c) otherwise following our advice in “Suggestions” below.
We believe that hospitals that have medical staff governing documents in addition to medical staff bylaws (e.g., “manuals”) have four options:
1. Do nothing until January 1, 2009 (or such other date that gives you sufficient time to make necessary changes including governing body approval prior to the July 1, 2009 effective date) so that it is clear as to what changes are, in fact deemed necessary by TJC.
2. Have a medical staff bylaws committee, with input from your legal counsel, go through your current documents (“manuals,” “policies,” and “rules and regulations”) and move all information that you believe to constitute “process” into your medical staff bylaws.
3. Change the cover page on all of your current “manuals” to provide that these are now considered part of the medical staff bylaws. This means that you will now have Volume I (General Concepts), Volume II (Credentialing Matters), Volume III (Organization Matters), etc. Change the medical staff bylaws article regarding “amendments” to delete the provision permitting the MEC to enact amendments to “manuals.” Add a section to this article providing that the medical staff authorizes the MEC to make changes to any provisions in the medical staff bylaws that constitute a change to “procedural details.” Note: This may also require a review of any existing “policies” to determine whether they fall under the purview of MS.1.20 and, if so, to include them in this restructuring.
4. Add a provision to your medical staff bylaws that permits the active medical staff to present a matter to the MEC for reconsideration (or presentation to the board) based upon a petition signed by a percentage of the active medical staff that opposes the action (or inaction) of the MEC.
This Bulletin is not intended to cover all of the possible interpretations of MS.1.20. We strongly encourage you to discuss this matter with your legal counsel to assure that any changes you make (or do not make) are consistent with state law and in the best interest of your hospital while, at the same time, recognizing the importance of abiding by TJC accreditation standards.