ED Accreditation Update

Disclosure concerns and fears of potential litigation prompt options to midcycle self-assessment reporting

Unwanted disclosures could undo every thread of progress’ by making information available to plaintiffs

One component of the new accreditation process the Joint Commission on Accreditation of Healthcare Organizations will launch next year has some ED managers wondering about potential legal exposure.

In fact, the possible repercussions of disclosing negative information in the periodic performance review (PPR) process "have the potential to undo every thread of progress that’s been made in encouraging facilities to expose areas of failure or near failure," says ED manager Camilla L. Jones, RN, director of emergency services for Lewis-Gale Medical Center in Salem, VA.

The new accreditation process will require organizations to conduct a PPR, a midcycle self-assessment in which an organization, 18 months prior to its triennial on-site survey, does a self-test against applicable Joint Commission standards. Areas of noncompliance will be targeted with plans of action, and the organization is expected to share this information with the Joint Commis-sion, which will assist the organization in coming into compliance.

However, the requirement that a hospital air its dirty laundry with the Joint Commission, by reporting problem areas it has identified, has prompted some legal experts to voice concerns that doing so could cause the information to become discoverable. Discoverable information is that which attorneys on either side of a lawsuit may legally request and be granted access to during the pre-trial investigations that are conducted prior to a lawsuit going to court or being settled.

An example of a problem area that an ED might report during a midcycle evaluation — but probably would not want made available in a lawsuit — is the monitoring of patients who are waiting on inpatient beds.

"The Joint Commission expects them to be monitored like inpatients, but occasionally they’re moved into waiting areas or maybe into hallways, and they’re not monitored," says James Hubler, MD, JD, EMS medical director at Central Illinois Center for Emergency Medicine at OSF Saint Francis Hospital in Peoria. "That’s a biggie, because if it happens and there’s a bad outcome, that could be discoverable."

While the Joint Commission maintains that such risk is relatively low, it has responded to the concerns about disclosing too much to the wrong parties by offering two options to the regular PPR process:

Option 1. The organization performs the midcycle self-assessment, develops a plan of action, and attests that it has completed these activities but has good reason not to submit the information to the Joint Commission.

Option 2. No midcycle self-assessment is conducted. Instead, an abbreviated on-site survey is conducted at the midcycle point, after which the organization will submit a plan of action to address any areas of noncompliance found during the visit. The organization would be responsible for paying a fee to cover the costs associated with this midcycle survey.

As yet, the Joint Commission hasn’t determined how much the second option would cost a hospital that decided to ask for an on-site midcycle survey, says Mark Forstneger, a spokesman for the Joint Commission. According to Forstneger, that information is expected to be available this month.

"The PPR initiative is sound in its intent," Jones says. However, she adds, there currently is not enough information available to provide organizations assurance that the risk in disclosure in minimized from a legal standpoint.

"The risk possibilities appear to be substantial, even in the event of near misses," she says.

Joint Commission accreditation reports historically have been protected from disclosure in legal proceedings, and the Joint Commission has vigorously defended the confidentiality of reports generated during the accreditation process, says Patrice Spath, RHIT, a health care quality consultant with Brown-Spath Associates, a Forest Grove, OR-based firm that provides performance improvement training for health care organizations.

"However, having said this, it is important that senior leaders, in consultation with their legal counsel, determine the best option, either to participate in full PPR, or Option 1 or Option 2," she says.

Issues to consider include the level of disclosure protection afforded to accreditation records and similar quality documents in the hospital’s state, the risk and benefits of each PPR participation option, and the extent to which senior hospital leaders are desirous of and comfortable with public knowledge of the organization, Spath says.

If a facility’s personnel perceived that reporting problem areas exposed them to unchecked risk, it could have a chilling effect on the organization’s motivation to report problems or errors, Jones says.

"This is not the culture that we’ve been trying to cultivate" with the accreditation process, she points out. "That being said, if the Joint Commission can provide a mechanism to ensure disclosures are not coupled with self-imposed risk, Option 1 is not that far off from what my hospital does now to achieve continuous quality improvement."

The options were developed to assist organizations whose PPR might raise concerns, but the Joint Commission expects most organizations to use the regular PPR process, Forstneger says.

Sources

For more information, contact:

  • Camilla L. Jones, RN, Director of Emergency and Transfer Services, Lewis-Gale Medical Center, 1900 Electric Road, Salem, VA 24153. Telephone: (540) 770-4850. E-mail: cami.jones@hcahealthcare.com.
  • Patrice L. Spath, RHIT, Brown-Spath & Associates, Forest Grove, OR. Telephone: (503) 357-9185. E-mail: Patrice@brownspath.com.
  • James Hubler, MD, JD, EMS Medical Director, Central Illinois Center for Emergency Medicine, OSF Saint Francis Hospital, Peoria, IL 61571. Telephone: (309) 655-2113. E-mail: ksgorman@aol.com.
  • Joint Commission on Accreditation of Healthcare Organizations accepts questions about periodic performance review via e-mail, sharedvisions@jcaho.org, or phone, (630) 792-5900.