Elizabeth A. Snelson Legal Counsel for the Medical Staff -- Contact Information

Medical Staff Bylaws: What to Do

While the Joint Commission Figures Out

What to Do

If you work with medical staff bylaws, you know that the Joint Commission standard for medical staff bylaws (MS 1.20) has been in a state of flux for years. Because hospitals campaigned against changes that would strengthen medical staffs, the published standard has been “corrected,” “clarified,” revised, published, and now-“suspended.” The time, resources and efforts that hospital executives and hospital lawyers have dedicated to undermining medical staff self-governance demonstrate the importance of self-governance in putting clinicians, rather than executives, in charge of patient care decisions.

The Joint Commission will not consider action on MS 1.20 until April, 2009, at the earliest. Any changes will not be effective until 2011, at the earliest. The action of the Joint Commission to suspend the version of MS 1.20 it published in July, 2008, leaves in effect the MS 1.20 it published in the 2007 Joint Commission Accreditation Manual—except for Element of Performance 19, which “is not effective at this time.” And just in case this is not sufficiently confusing, the Joint Commission is changing its numbering system again, so that the MS 1.20 in effect now will be MS 01.01.01. Access that bylaws standard at http://www.jointcommission.org/NR/rdonlyres/80A13661-D905-4B34-B4FC-7B8309EC9E40/0/HAP_MS.pdf.

So what should medical staffs do? Don’t wait for the Joint Commission to improve your bylaws. Changes made since 2007–in the good faith belief that the Joint Commission would implement its published standards-may well comply with MS 01.01.01. Those who had not taken steps to comply with the last two versions of MS 1.20 need to get to work. Get rid of those cumbersome, gimmicky and one-sided “manuals” and “plans” and keep credentialing, privileging, hearing and appeals, and medical staff organization and operations in the bylaws, where they belong. That approach complies with MS 1.20, past, present and everything on the table for the future--- and with Medicare CoPs, most if not every state’s statutes, AMA policy, and any other meaningful measure of a quality medical staff. In addition to MS 1.20/01.01.01, the Joint Commission will begin surveying to see that the medical staff addresses disruptive behavior and conflicts of interest. These issues should also be in your medical staff bylaws. Do not spend time and money taking things out of the medical staff bylaws.

"Peer" Review Policy Isn't

Is it too much to ask that peer review involve peers? So-called “Peer” Review Policies are being ginned out by hospitals, ostensibly to meet recent Joint Commission standards, but under which peers (those actually treating patients based on their post-college degrees and training) have nothing to do with the review except to apply a rubber stamp at the end. Don’t let accreditation be an excuse to take the peer out of peer review.

A typical cookie-cutter “peer” review policy has the hospital’s quality improvement staff feeding whatever information it feels warrants attention (or which the hospital needs to knock off an unprofitable service line or an outspoken physician) to the quality improvement committee, which, even if it is delineated in the medical staff bylaws, is comprised by no small number of administrative personnel. Surprise! The unprofitable or unglamorous service does not pass the package’s muster. The independent practitioners of a lucrative service are replaced by hired hands. The basis for such convenient decisions? Pre-packaged data sets purchased from the financial officer’s favorite pro-hospital consulting firm, or marketing survey/patient satisfaction “data” being used as if it were, well, data.

Reality check, please! Unfiltered patient satisfaction survey outcomes used as specific measures of individual physicians, where the sick patient being surveyed may not remember whether that scrub-clad person is a neurosurgeon or a transport tech, or may be focusing more on the quality of the applesauce than on the sophistication of the diagnosis, cannot safely determine who should provide care. Those pre-printed “customized” quality measures that no one on the medical staff has ever seen, much less promulgated, are not going to improve quality on the ground or even be worth the exorbitant consultant’s fee, if there is no acceptance by the medical staff because the measures are unrelated to real clinical issues. Phony peer review isn’t worth the trouble, much less the price----assuming quality care really is the goal.

Medical staff bylaws should establish that peer review actually means review of peers by peers, done right, and for the right reasons. Done right means that clinical criteria are determined by clinicians on the medical staff, and the data sets are determined by medical staff departments, consistent with Joint Commission standard MS 4.40. Done right also means that state law requirements are followed to the letter and state-specific qualified protections are earned, which national consultants’ policy kits frequently overlook. Done for the right reasons means that instead of scalp-hunting, peer review results in improved quality, either by educating or assisting someone missing the standard the medical staff sets, or by correcting problems in the systems that fail to result in good care. Well-drafted medical staff bylaws prevent the use of peer review as punishment, and provide for the transparency needed to avert abuses, thus creating a medical staff in which members are comfortable bringing forward and solving real problems. No “peer” review policy needed.

Question/Comment? easesq@snelsonlaw.com

Overkill Codes of Conduct

The Joint Commission ("TJC") recently broadcast as a "Sentinel Event Alert" a discussion of its standard LD 3.10, (effective 2009) which calls for a process to manage disruptive behavior. TJC followed up the next day with a broadcast email selling its book, seminar and audio conference on how to meet the standard it created. Other hospital consultants piggybacked on TJC's marketing, telling horror stories about "physician bullies" and selling "no tolerance" policies.

I have no tolerance for no tolerance. Overkill conduct codes subject medical staff members to discipline for "conduct disruptive to hospital operations", such as opposing the hospital's expansion plans at a city planning meeting, or pointing out problems with patient care. Among countless ridiculous but scary provisions in hospital codes of conduct, my favorite may be the one defining disruptive behavior as "adding to the workload of the staff"—which would include admitting a patient.

Medical staffs should be alerted to overkill conduct codes. In addition to imposing literally absurd requirements, such codes can be used to prevent physicians from competing with the hospital in any way, including being married to a cafe owner, which would fall under the code's clause blocking the medical staff member or immediate family from having an interest in an entity competing with hospital operations (its cafeteria.) Having an interest in a surgery center or imaging suite may not seem to be a "behavior" issue but might be blocked by the hospital's newly-laminated Behavior that Undermines the Mission list. Hospitals should be dinged for masking such anti-competitive schemes as necessary for "compliance."

Unprofessional conduct needs to be managed, but doing it badly creates costly errors. More than a new TJC standard is at stake. Poorly drafted codes of conduct disqualify actions for state and federal peer review protections, needlessly sacrificing legal immunity and confidentiality protections. Failing to follow existing procedures has been held to constitute malice, disqualifying the hospital and medical staff from Health Care Quality Improvement Act protection. (see In re: Peer Review Action http://www.lawlibrary.state.mn.us/archive/ctappub/0806/opa070813-0603.pdf). Using codes of conduct as a guise for economic credentialing has been successfully challenged in Baptist Health v. Murphy (189 S.W.3d 438 (Ark. S.Ct. 2005). Forcing a new range of discipline on the medical staff outside the medical staff bylaws jeopardizes medical staff self-governance.

Really want to reduce unprofessional conduct? Adopt sensible, transparent requirements in medical staff bylaws, with emphasis on assisting professionals with emotional, physical or mental problems, encouraging constructive criticism and improving substandard systems.

Question/Comment? easesq@snelsonlaw.com