Revised disclosure standard presents new compliance challenges

Wording may mislead about what information must be disclosed

Recent changes to the Joint Commission on Accreditation of Healthcare Organizations’ RI.1.2.2 standard, which is in the patient rights and organization ethics chapter, may appear to make it easier for health care providers to comply by lessening the obligation to tell patients and families of adverse events. That is not necessarily the case, however, and misinterpreting the standard could lead to serious repercussions on your next survey.

One critic suggests the change was made to appease providers grousing about the requirement to disclose adverse events, but that the change is really just window dressing. If you think the revision lets you relax your disclosure policy, you could get dinged with a Type I recommendation. Watch out if you are primarily responsible for ensuring Joint Commission compliance; others in your organization may want to seize this revision as an opportunity to change the way information is disclosed.

The change was scheduled to become effective July 1, 2002. Standard RI.1.2.2 states, "Patients and, when appropriate, their families are informed about the outcomes of care, including unanticipated outcomes." The change was made to the "intent" section of the standard, which accredited organizations often use to help them interpret how to comply. The old intent section stated, "The responsible licensed independent practitioner or his or her designee clearly explains the outcome of any treatments or procedures to the patient and, when appropriate, the family, whenever those outcomes differ significantly from the anticipated outcomes."

But the newly revised intent section now says: "At a minimum, the patient and, when appropriate, the patient’s family are informed about outcomes of care that the patient [or family] must be knowledgeable about in order to participate in current and future decisions affecting the patient’s care, and unanticipated outcomes of care that relate to sentinel events considered reviewable by the Joint Commission. The responsible licensed independent practitioner [LIP] or his or her designee informs the patient [and when appropriate, the patient’s family] about these outcomes of care."

While still requiring accredited providers to disclose outcomes to patients and families in many situations, especially those serious enough to be sentinel events, some see the revision as weakening the original provision.

In effect, they say, the original intent was broader and required providers to disclose information fully, while the revision only requires disclosure of information necessary for the patient to make care decisions or information related to sentinel events. Not so, says a Joint Commission surveyor who was involved with the revision.

Steve Chinn, DPM, MS, is compliance officer at Fremont (CA) Hospital, and a part-time surveyor for the Joint Commission. In addition, Chinn teaches courses for the Joint Commission and was one of many surveyors who urged the accrediting body to change RI.1.2.2.

Chinn explains that the revised standard could be confusing to providers if they interpret the new wording in the wrong way.

Rather than loosening the requirement so that fewer incidents would require disclosure, the Joint Commission actually was trying to encourage more disclosure, he says.

"We were all suggesting this change out in the field," he says. "The old intent was very flexible, subject to wide interpretation. The new intent is becoming very specific for minimal expectations, but it is important to see that they are minimal expectations. The intent does not outline all situations in which you need to disclose, but it tries to be very specific about the minimal situations that would apply."

Under the previous intent, providers were left to determine what sort of information must be disclosed, and Chinn says they often did not do a good job with making those decisions.

The Joint Commission never intended — and still doesn’t intend — that providers tell patients about every single detail involving their care, but people often struggled with where to draw the line, Chinn says. In some cases, providers were creating a problem by disclosing information they did not really need to disclose, and in some cases, people were so confused that they hardly disclosed anything.

"People were paralyzed by not knowing what to include and what not to include, so they ended up not doing enough of anything," he says. "Some folks were saying that if a patient had an adverse drug reaction, but we reversed it and so there’s no problem, they didn’t have to disclose it. A lot of people were wondering about when a patient stayed four days and you only expected two days. Did you have to bring in a whole team to disclose that unexpected outcome?"

The adverse drug reaction should be disclosed, but the extra days probably would not be, Chinn says. The revised intent section of RI.1.2.2 is intended to help providers establish a solid minimum for what must be disclosed, while allowing plenty of leeway to determine that other situations require disclosure, he says.

Many hospitals are developing in-house policies on disclosure now, and the revised intent should provide some guidance, he says.

Don’t relax your disclosure policies

The new wording is difficult to understand, and misinterpreting the Joint Commission revision could put you out of step with the rest of the health care community, says Grena Porto, RN, ARM, DFASHRM, senior director of clinical operations at VHA Inc. in Berwyn, PA. Porto is a leader in the movement to promote more disclosure and open discussion with patients, and she often works with the Joint Commission.

Porto says that, based on comments she has heard from Joint Commission officials, the accrediting body seems to be losing some of its will to promote disclosure of adverse events. That retreat was prompted by complaints in the health care industry, she says.

However, Porto agrees with Chinn that the RI.1.2.2 revision is not necessarily weaker than the previous version.

The wording may be confusing to providers and could easily suggest that the Joint Commission is backing off on disclosure, but it is in fact a convoluted definition that tries too hard to satisfy everyone, she says.

The health care industry has a terrible habit of wanting accrediting bodies to specify how to act in every possible situation, instead of expecting providers to rely on their own judgment to comply with the spirit of the standard, Porto says.

When the Joint Commission first came out with a rule promoting disclosure, providers pestered surveyors with endless questions about whether to disclose this or that, insisting that the standard should be crystal clear in every situation. In response, Porto says, the Joint Commission revised the standard in a way that only makes compliance more difficult.

"We asked so many stupid questions that now we’ve got a stupid answer," she says. "Instead of taking a thoughtful, common-sense approach to it, we try to paint them into a corner, forcing them to define the standard, and they come back with something worse than the original. At some point, we should be big boys and girls and look at the bigger picture and what’s right for the patient."

The Joint Commission should have just left the standard alone, she says, contending that the original intent was clear enough for any provider willing to put the patient’s interest first. But now that the intent section has been changed, Porto advises quality improvement and peer review professionals to be extra careful in promoting disclosure within your organization. With the confusing wording now found in RI.1.2.2, you may need to specifically caution providers against relying too much on the scenarios outlined in the intent. Do not let people get the idea that they must disclose only sentinel events and information necessary for care decisions. And it is particularly important that you not allow any policies to be rewritten with that misinterpretation.

Do not change any of your disclosure policies in response to this intent change, she says. Your organization’s disclosure policy should continue to grow more liberal, not revert backward, she says.

"There are going to be a lot of gray areas to decide on a case-by-case basis," Porto says. "It’s not a black-and-white issue, and it’s stupid to expect an accrediting body to define it in very concrete terms. Do what’s right for the patient, and don’t look for the minimum you can get away with."

[For more information, contact:

  • Steve Chinn, DPM, MS, Compliance Officer, Fremont Hospital, 39001 Sundale Drive, Fremont, CA 94538. Telephone: (510) 796-1100.
  • Grena Porto, RN, ARM, DFASHRM, Senior Director of Clinical Operations, VHA Inc., 200 Berwyn Park, Suite 202, Berwyn, PA 19312. Telephone: (610) 296-2558.]