Get compliance input into clinical ethics, warn experts

If a disconnect between clinical and business ethics has created a house divided in your hospital, it’s time to break down the walls.

This was a problem encountered recently by Nicki Humphries, compliance officer for the University of Maryland Health System in Baltimore. Recently a JCAHO team arrived at the hospital for a mock survey. The surveyors met with the hospital’s bioethics committee. Instead of merely discussing clinical issues, the surveyors quizzed the committee about business ethics such as billing issues. Not surprisingly, the clinicians on the committee were not equipped to answer those questions. "Our people said, huh?’" Humphries recalls.

Fortunately, it was a mock survey, but Humphries says she learned a valuable lesson. Next time, someone from the compliance department will be there when the clinical ethics committee meets JCAHO.

Indeed, you can expect more JCAHO scrutiny of your compliance program, says Philadelphia attorney Claire Obade, who’s written extensively on ethics issues. Though JCAHO has long been reluctant to delve into fraud enforcement, which it sees as uncomfortably outside its quality of care purview, the commission has come under pressure from the government to take a stronger watchdog role.

"This is definitely on their radar screen," Humphries agrees. Indeed, a surveyor recently told her that if he could stop a clinician in the hall, and that clinician could talk about business as well as clinical ethics, "that would be terrific."

Beyond satisfying JCAHO, there are strong liability reasons those who decide clinical ethics need compliance input. Clinicians are more at home discussing patient care. Yet decisions on utilization could have false claims implications as the government prepares to charge that underutilization is another form of health fraud, notes Obade. And policies regarding informing patients on various sources of care could have kickback implications, says Humphries.

To get more compliance input into the clinical ethics process, Obade suggests having someone from the compliance staff observe the meetings of the clinical ethics committee, or at least get copies of the committee’s correspondence. Another solution would be to have one overall committee that handles ethics issues, with subcommittees tasked with studying various business and clinical issues. If a Joint Commission surveyor tries to raise business issues with the clinical ethics committee, "tell them they’re at the wrong level and here’s who they need to talk to, advises Obade.