New medical staff standard still ruffling feathers

Standard seeks to clarify what should be in bylaws

When The Joint Commission revised its medical staff standard in 2007, there was tumult in the field. In response, The Joint Commission convened a task force and has released a new version of MS.01.01.01 (formerly MS.1.20), which was open for comment through Jan. 28, 2010. The new standard seeks to clarify what should be included in the hospital bylaws and how the organized medical staff and medical executive committee should function.

"The reason that we formed the task force in the first place and then suspended the adoption of our new 2007 modification to the standard was around concern from the American Hospital Association and the Federation of American Hospitals around perceived burden of having to bring in costly attorneys and completely rewrite their bylaws. While we didn't believe that was true, we did err on the side of requiring too much detail in the bylaws," says Chuck Mowll, FACHE, executive vice president, business development, government and external relations at The Joint Commission.

Though there's still confusion in the field, Todd Sagin, MD, JD, with HG Healthcare Consultants LLC in Laverock, PA, says hospitals "are going to have to read the new standard carefully, and they'll have to read through their bylaws and find those areas in which they're not in compliance. Now that in and of itself obviously is a task. And how much revision will be required in an individual hospital's medical staff bylaws is going to be a function of what's there today and how much does it deviate from the new standard."

A key change, Mowll notes, is that EPs 12-36 should be in the medical staff bylaws. "However, these requirements have associated detail, and sometimes those details are extensive, so these details can reside in the bylaws or rules and regulations or policies. That's the flexibility that we're providing to the field," he says. But many experts still believe the rule is not quite clear, and attorney Michael Callahan, Katten Muchin Rosenman LLP, says hospitals still might have problems distinguishing what must be in the bylaws and what constitutes "associated details" that can reside elsewhere.

Bylaw requirements

One EP requires that the history and physical process now be in the bylaws. Ward R. (Hermit) Cassels Major (Ret), USAF, accreditation readiness officer at VA Puget Sound, thinks this is a good thing. "Organizations have always had issues with the timely submission of H&Ps and timely updating of them, and I think this gives it a little more teeth for the clinical executive board to enforce it better. If it's in the bylaws and all of the providers are following the bylaws, then they should be improving on the timeliness of H&Ps especially," he says.

The fair hearing and appeals process also must now be in the bylaws, as well as credentialing processes, which at most hospitals previously resided in a separate manual. This isn't new material, Sagin says; it just must be organized in a different way.

Alice Gosfield, a Philadelphia-based attorney and consultant, sees the response in the field as an unnecessary "tempest in a teapot." There are discrepancies in just how much work this will mean for hospitals, and Gosfield doesn't subscribe to the more popular notion that it will be a costly, timely endeavor. "The fair hearing plan, the credentialing manual, which is how you get in the door and how you get privileged, which with OPPE and FPPE, becomes even more important than its been, all of that was in a separate document because it's much easier to change it if it's not in the bylaws because you're not allowed to unilaterally amend the bylaws," she says.

Cassels does believe there will be some work involved with amending the bylaws but says, "Actually in looking at the standard, it's going to be a general improvement. And I don't see a lot of extra work at all with them. The one thing I really like about them, when it goes through EPs 12-36, they're very prescriptive. These things need to be in the bylaws. And it really spells them out nicely... I do really like the part where they've given us a little more leeway because we can put things in the bylaws, rules, regulations, or policies. It kind of opens it up a little bit more. If you have a change that would be more aligned with a policy as opposed to putting it in the bylaws, we have that option now. You really didn't have that option in the past."

Sagin says: "I believe that probably in the majority of cases, the changes will be relatively easy to implement. I think most people will have to make changes. I disagree with those people who say many folks won't have to do anything differently. I think most places will have to do some revisions to their bylaws to bring them in to compliance."

Another addition is the inclusion of a dispute resolution process if there is disagreement between the organized medical staff and the medical executive committee. Callahan questions what the triggers for dispute resolution should be. "If the MEC makes a recommendation to require let's say board certification and that if you're not board certified you lose your privileges, and let's say the current policy is you don't lose your privilege, you get demoted to a lower staff category. That would typically be some rule, reg, or policy that would come up for vote. Is it one physician that can now trigger formal dispute resolution? Because if the threshold was that low or a handful or five or 10 when you have hundreds of physicians on the medical staff, you're going to be in dispute resolution forever. And so the first question is OK, what should be the standard? Is it 10% of the active staff members? Is it 5%? If it is a number, does it only involve certain kinds of issues?

"So that's kind of the first, one of the decision points that a medical staff is going to confront. What's the triggering mechanism? And then the second point is, what is the dispute resolution process? And The Joint Commission isn't telling people what those thresholds are or what that process is. They're saying, 'Look, you all figure that out.' And so that's going to be part of the dialogue," Callahan says.

With the new standard, the organized medical staff can now take an amendment directly to the board, without consulting the MEC. There is much talk in the field about whether this is a diminution of the MEC.

"It does say there needs to be a process by which the medical staff could propose changes to their bylaws to the board and bypass the MEC. In that sense, potentially you could see that as a diminution in the importance of the MEC, but the fact of the matter is that any changes of that significance have to be voted on anyway by the medical staff," Sagin says.

Neither Gosfield nor Sagin believes the balance-of-power issue is as big as some have made it. They think the field is anticipating conflicts that usually don't arise.

"If the medical staff as a whole feels the need to jump over the MEC, what is going on in the medical staff governance process?" Gosfield says.

"Again, a lot of this is people trying to create situations and anticipate conflicts that just are not out there with any prevalence," Sagin says. "The documents, the new MS.01.01.01 talks about the need for there to be this constant communication [between the medical staff and the MEC] and everybody staying in the loop, and that's fine. That's well and good. Communication is always positive, and people should know what's happening. Rank and file, leadership, governing bodies should all be well informed. I don't see that as a problem. And it's just reinforced in this particular document."