Controversial report puts JCAHO under scrutiny: Is survey process flawed?

Surveyors will be more watchful than ever,’ expert says

[Editor’s note: The following is the first of a two-part series on the Government Accountability Office’s (GAO) recent report on the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). This month, we cover the report’s controversial findings and JCAHO’s response. Next month, we’ll update you on newly introduced legislation and explain how it could affect JCAHO’s hospital accreditation program — and your future surveys.]

A hailstorm of controversy has been generated from a recent GAO report questioning JCAHO’s ability to ensure quality care. Based on the report’s findings, legislation has been introduced by U.S. Rep. Pete Stark (D-CA) and Sen. Charles Grassley (R-IA), which would give the Centers for Medicare & Medicaid Services (CMS) the same oversight authority over JCAHO that it has for all other organizations with accreditation authority.

That would reverse nearly 40 years of practice, as the original Medicare Act of 1965 granted JCAHO a unique status to deem hospitals as eligible for Medicare payments with limited federal oversight authority.

The GAO report cites alarming statistics from a retrospective survey of 500 hospitals conducted by a team of government inspectors, who found that JCAHO had missed deficiencies in 123 of the hospitals. Those include inadequate infection control, inability to ensure competent performance of physicians and nurses, and failure to adequately protect patients and staff from fire-related disasters.

"Dennis O’Leary and the Joint Commission have been in the hot seat before, and I feel they will weather this storm as well," predicts Kathleen Catalano, director of regulatory compliance at PHNS in Addison, TX.

In 1999, an investigation by the Health and Human Services Office of the Inspector General concluded that JCAHO’s accreditation surveys were not likely to identify patterns of deficient care.

"In response, JCAHO set to work to really help facilities recognize what they could do to alleviate these patient safety issues, set up standards to help with that process, and implemented the National Patient Safety Goals," Catalano says.

Regardless of whether new legislation puts the program under federal oversight, it’s likely surveyor awareness will be heightened as a result of the report, she warns.

"Thus, those undergoing surveys should be mindful of possible patient safety issues," adds Catalano. "Remember that the surveyors will be more watchful than ever for patient safety problems."

The Joint Commission is pulling no punches, calling the report’s findings flawed and misleading. Margaret VanAmringe, JCAHO’s vice president for public policy and government relations, points out it’s largely been overlooked that the report found hospitals to be compliant with the Medicare Conditions of Participation (COP) 98% of the time.

"I think hospital leaders should feel very good about that fact, although it was buried in the report," she says. "Unfortunately, that message was lost."

VanAmringe also points to the thousands of yearly complaint investigations conducted by CMS at accredited hospitals, which find COPs out of compliance less than 2% of the time.

In addition, the number of deficiencies found during the CMS validation surveys isn’t necessarily meaningful in itself, she adds. "The name of the game is not to count up the number of deficiencies. It’s to look for continuous quality improvement. If they found 10 deficiencies and we found nine, that’s not the point. Because we can find nine that may mean more than finding even 25, because they’re the right nine."

If the report included data regarding the frequency with which JCAHO and CMS have found similar results in their surveys and compared it to the number of times they found differences, it might be more representative of the actual scope of the problem, says Patti Muller-Smith, RN, EdD, CPHQ, a consultant for Shawnee, OK-based Administrative Consulting Services. Muller-Smith works with hospitals on performance improvement and regulatory compliance.

"It might also be of interest to know if JCAHO and CMS are surveying using a similar interpretation of the standards in question," she adds.

While no hospital will give perfect care 100% of the time, the issue is whether problems are identified and fixed when they are found, says Catalano.

"Anyone who has been in any health care facility, or any other industry for that matter, has seen things run extremely well and also fall to pieces. When staff are rushed, have too many patients to care for, or do too many things at one time, incidents occur," she notes. "This is as true in the Top 100 hospitals as it is in the lowest-ranking facility."

All hospitals have deficiencies and should not be punished for their efforts to find and fix them, VanAmringe stresses. "We do not knock down organizations for having deficiencies. We knock them down in terms of their accreditation status for not fixing deficiencies," she says.

It’s important to note that the federal government is coming from an enforcement perspective, which is different from the JCAHO’s continuous quality improvement perspective, VanAmringe explains.

"When taken together, you have a dynamite combination. But we point to the fact that Congress continues to have problems with nursing home compliance. The reason they do is they are looking at it from the enforcement angle and not from a quality improvement angle and don’t infuse that into the process. But the Joint Commission does; that’s what we do," she adds.

JCAHO does acknowledge that it needs to improve its assessment of compliance with the Life Safety Code. "We’ve always admitted this, which is why we took so many actions between 2002 and 2004," VanAmringe says. "That’s not to say, however, that we agree that all of the Life Safety Code differences in the GAO report are meritorious in terms of whether they actually put any risk on patients."

To address that, JCAHO will be adding additional engineers during surveys of hospitals that meet criteria putting them at a higher risk for potentially having Life Safety Code problems, such as the size or age of the organization, she says.

According to VanAmringe, only about 30% of the Life Safety Code differences found by the state agencies represented problems that would have been considered moderate to high risk by JCAHO surveyors. "But for the non-Life Safety Code areas, we don’t think there is anything different we would do. And for about 70% of the Life Safety Code differences, I’m not sure we would do anything differently there either."

New survey process: Overlooked by GAO?

JCAHO points to its revamped survey process as powerful evidence that the accreditation program is "absolutely moving in the right direction," she says.

VanAmringe notes that hospitals with deficiencies now are required to develop corrective plans of action in a specific time frame, with quality data now publicly reported and surveys to be unannounced as of 2006. "I think hospitals will learn very quickly that if they don’t correct things in a specific time frame, they will be in trouble," she says.

However, Sidney Wolfe, MD, director of the Health Research Group for Public Citizen, a Washington, DC-based national nonprofit public interest organization, isn’t convinced.

"Every time anyone has done a report critical of JCAHO, their response is always the same. They say, That was a year ago; we are doing better now.’ That is a classic JCAHO response," he says. "But they aren’t doing better, and the same critical problems are still there."

A major concern are surveys, which currently still are announced, Wolfe notes. "If you are really doing a policing effort, you would not have 95% of inspections announced so everyone can see good things as opposed to bad things. How many times does somebody have to come up with findings that are very damning for JCAHO before saying, We need a real fix,’ which is to just get them out of the loop in terms of regulation?"

(All regular JCAHO accreditation surveys will be conducted on an unannounced basis beginning in January 2006.)

In the past, state health agencies often have found serious problems in hospitals accredited by JCAHO, says Wolfe, adding that recent changes are "largely cosmetic.

"Over and over again, hospitals that have disasters occurring to patients often traceable to systemic problems, are the same hospitals that, not long before these disasters, passed JCAHO inspections with flying colors," he notes.

That is not reflective of the current state of JCAHO’s survey process and is based on old data from more than a decade ago, VanAmringe counters.

"That is not even worth commenting on. It’s irrelevant and meaningless. To put out information about a survey in the 1980s is like driving a car in the 1980s and using that experience to comment on what cars are like in 2004," she says.

According to VanAmringe, hospitals should have a safe harbor enabling them to take steps to fix problem areas without fear of losing accreditation. "In other words, if you identify deficiencies yourself and work with surveyors to correct them, those things are not publicly reported on our web site. It’s when you don’t fix things on a timely basis or give them the attention they deserve that you are going to be in trouble," she says. "And that’s where we ought to be, focusing on the sustainability of quality, and not on I gotcha.’"

So what do quality professionals have to say about it? Many say the new survey process is much more effective in zeroing in on problem areas and requires an ongoing process of reporting on designated measures that affect patient outcomes.

"The Joint Commission has just changed its survey methodology in order to look for things of this nature," Catalano says.

"I feel we should give this new process a chance to show if it’s working," she continues.

Surveys no longer are viewed as a crunch time, but rather as an invitation for a trained outside observer to point out things that are not seen by those who work in the environment on a daily basis, Muller-Smith explains.

"The new process requires that the organization develop a quality-driven culture that becomes part of the very fabric of delivering patient care," she adds. "Compliance or noncompliance is less likely to depend on the surveyor than on the actual overall performance of the hospital."

But other quality experts argue that inspections, however they are conducted, are not enough to ensure quality care.

"The GAO report is just another indication that the compliance industry of which JCAHO is a member can never truly generate either quality or safety," says Martin D. Merry, MD, adjunct associate clinical professor of health management and policy at the University of New Hampshire in Durham, and a Exeter, NH-based health care quality consultant. All inspections can do is ensure accredited facilities meet minimum standards — a limited but important role, he says.

However, compliance with minimum standards can never result in a high level of safety for patients and serves mainly to induce fear, Merry explains. "Perhaps, fearful people will be more careful in their attempt to avoid lawsuits, loss of license, loss of accreditation or payment, or public embarrassment, all of which might put them out of business," he adds. "But this can never, by its basic nature, inject enthusiasm for excellence."

This has to come from individual leadership in health care organizations, Merry stresses. "This fact is still far too often misunderstood. The inspection and regulation processes, as they are now conducted, continue to drain far too much time and resources in most facilities."

"These resources are extracted from exactly the people who might better use them truly pursuing excellence rather than compliance," he adds.

The problem is that surveyors often are unable to detect truly dangerous practices going on in the institutions they inspect, Merry says. "The inspectees will always be too clever in hiding their deficiencies in order to maintain licensure and accreditation. Therefore, we will continue to see tragic, embarrassing cases emanate from fully accredited institutions."

Thousands of patients are harmed every year due to medical errors despite caregivers’ and JCAHO’s best efforts to prevent these injuries, he says, adding that JCAHO surveyors lack a high-powered lens to detect the multitude of ways in which patients potentially can be harmed.

"However, I’m convinced that their leadership fully understands this and is moving as fast as they can to improve their inspection process. I hope that the inspectors and regulators continue to move away from often meaningless ritual to genuinely effective inspection and regulation," Merry adds.

The GAO report’s verdict is it’s too early to tell whether the new survey methodology will actually improve detection of deficiencies, as the process was just implemented in 2004.

In addition, the report claims JCAHO failed to do adequate pilot testing. VanAmringe counters that, in fact, extensive pilot testing was conducted, and the GAO was provided with compelling data that the new process improved significantly.

The use of tracer methodology during surveys is an important and hopeful sign, Merry adds, as it shows JCAHO is focused on the patient’s perspective. "This is an important departure from talking to caregivers and administrators and reading documentation about what they think patients are experiencing," he adds.

Merry also acknowledges that unannounced surveys could, in fact, be a powerful tool to improve detection of problems. "This allows inspectors to learn what really is happening in hospitals vs. what appears to be happening during a largely staged event that the facility has had months to prepare for, perhaps with high-priced coaching from consultants," he says.

The bottom line is that increased oversight and transparency is a reality for all health care providers today — and JCAHO is not immune to being put under the microscope, says Patrice L. Spath, BA, RHIT, a health care quality specialist with Brown-Spath & Associates in Forest Grove, OR.

"It is hoped that open and candid discussions of the best way to ensure quality and cost-efficient health care for the American public will have positive results," she says.

[For more information, contact:

Kathleen Catalano, Director of Regulatory Compliance, PHNS, 15851 Dallas Parkway, Suite 925, Addison, TX 75001. Phone: (972) 701-8042, ext. 216. Fax: (972) 385-2445. E-mail: Kathleen.Catalano@phns.com.

Martin D. Merry, MD, 10 Ashbrook Road, Exeter, NH 03833. Phone/fax: (603) 778-1531. E-mail: merrymd@comcast.net.

Patti Muller-Smith, RN, EdD, CPHQ, Consultant, Administrative Consulting Services, P.O. Box 3368, Shawnee, OK 74802. Phone: (405) 878-0118. E-mail: mullsmi@aol.com.

Patrice L. Spath, BA, RHIT, Health Care Quality Specialist, Brown-Spath & Associates, P.O. Box 721, Forest Grove, OR 97116. Phone: (503) 357-9185. E-mail: patrice@brownspath.com. Web: www.brownspath.com.

The GAO report, Medicare: CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals, can be downloaded free from Rep. Pete Stark’s web site: www.house.gov/stark. Click on "News," "7/20/04 — Press Release — Hospital Accreditation," "GAO-04-850."]